1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.169 OF 2008 Kamal M.Morarka .. Petitioner Vs. Canara Bank .. Respondent Mr.H.J.Thakkar, Sr.Advocate i/b M/s.Mahesh Jani and Co. for the petitioner Mr.N.K.Kamat for the respondent CORAM : J.N.PATEL CORAM : J.N.PATEL CORAM : J.N.PATEL & & & K.K.TATED, JJ. K.K.TATED, JJ. K.K.TATED, JJ. DATED : 8TH AUGUST, 2008 DATED : 8TH AUGUST, 2008 DATED : 8TH AUGUST, 2008 P.C.: 1. Heard. 2. We propose to dispose of this petition at the stage of admission itself. 3. The petitioners are impugning the decision of the Debts Recovery Appellate Tribunal in the Judgment and Order dated 3.10.07 passed in Appeal No.145 of 2004 alongwith Misc.Application No.978 of 2 2007. 4. The petitioners are original guarantors against whom the respondents have filed an Original Application before the DRT, Ahmedabad for enforcement of the guarantee executed by the appellant. Though the application of the respondent bank in case of recovery of debt came to be decreed in favour of the bank, the suit filed by the bank for enforcement of the guarantee executed by the petitioner was dismissed on the ground that the deed of guarantee was not stamped. Aggrieved by the said decision, the applicant bank moved DRAT in the matter by preferring an appeal alongwith an application seeking leave to produce the original deed of guarantee before the DRAT. By the impugned order, the DRAT allowed the appeal, so also the application by permitting the respondent (appellant bank) to tender the deed of guarantee and lead fresh evidence in the matter which order is challenged before us. 5. The learned counsel for the petitioner submitted that the impugned order has been passed 3 by DRAT without considering that the DRT has considered the case in proper perspective and was justified in denying the relief sought for by the respondent bank for enforcement of guarantee against the petitioner as they failed to prove that the petitioner executed deed of guarantee in favour of the respondent bank particularly when the documents tendered before the DRT consisted of the xerox copy of the deed of guarantee which was not duly stamped but it only had the signature of the guarantor and, therefore, it rightly rejected the deed of guarantee, in absence of original and that could have been the only evidence against the petitioner. 6. It is submitted that the DRAT has allowed the appeal as well as the application by giving reason that in the interest of natural justice, the bank can be permitted to tender the documents and allowed to lead fresh evidence. It is therefore, submitted that though the bank had sufficient opportunities to tender the original documents before DRT, the bank having failed to do so before the appropriate forum, it could not have sought 4 such a relief in appeal without any justification. 7. On the other hand, it is the contention of the learned counsel for the respondent bank that the order of the DRT does not suffer from any error or illegality so as to call for any interference. It is submitted that the deed of guarantee is bilingual and now the bank having located the original deed of guarantee, it should be permitted to tender the same before the DRT as evidence in support of its case. It is further submitted that the deed of guarantee being bilingual i.e. Hindi/English which is normally in the printed form, the adhesive stamp is fixed on the first page whereas the English version of the deed of guarantee has been filled in and signed by the petitioner who is the original respondent no.3 and therefore, if such an opportunity is given to the bank, it does not result in miscarriage of justice. On the other hand, the petitioner would have a fair chance to defend himself by raising all the issues and contentions as to the admissibility of the documents before the DRT and, therefore, the petition deserves to be dismissed. 5 8. We have gone through the order passed by DRT as well as the judgment and order passed by DRAT. In our view, the judgment and order passed by DRAT goes to show that DRAT has taken into consideration the provisions of Order 41 Rule 23 and 27 of the Civil Procedure Code which permits the party to tender documents even at the stage of appeal and lead evidence to prove the same, if parties are able to make out a case within the parameters provided under Order 41 Rule 27 of the C.P.C. In this case, the original document was not available to the bank at the time the evidence came to be recorded and, therefore, it could not be filed. The respondent bank had filed a copy of the Deed of Guarantee. 9. To this, the learned counsel for the petitioner submitted that Order 41 Rule 27 of the C.P.C. is not applicable to the Tribunal constituted under the provisions of the Act but section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, (in short the said Act) permits application of CPC by restricting 6 applicability of its provisions. 10. We are unable to find as to how tendering of document by party in accordance with the provisions of CPC is not permitted by section 22 of the said Act and on the other hand, it specifically refers to the application of CPC in respect of tendering of document by a party and Order 41 Rule 27 clearly permits the documents to be filled even at the appellate stage. The party who proposes to tender the document should be able to satisfy the Appellate tribunal that the original document was not available to the party notwithstanding the exercise of due diligence. 11. In the present case, the bank has made out justifiable reasons which have been accepted by the Tribunal and as the whole controversy rests on the deed of guarantee, the tribunal rightly permitted the bank to tender the document. 12. The learned counsel for the petitioner also expressed his doubt over the Jurisdiction of the tribunal to remand the matter to DRT for leading 7 fresh evidence in the case on the ground that no express power to remand are given to DRAT under the aforesaid act. This contention of the learned counsel for the petitioner does not find favour with this court for the simple reason that the appeal court while dealing with the appeal vest with the power to remand the case, if it finds that the party deserves its case to be reconsidered in the given facts and circumstances of the case, and as in this case, original document was allowed to be tendered and accepted by the appeal court, in order to prove the same, the matter involves recording of evidence to ascertain the execution of the documents and whether it is properly stamped so as to determine its admissibility. Therefore, DRAT has not acted beyond its Jurisdiction in remanding the matter to the DRT to decide the case in accordance with law by permitting the parties to lead evidence by tendering the deed of guarantee and it does not cause any prejudice to the petitioner who will get ample opportunity to meet the case. Therefore, we do not find any merits in the matter. Petition is dismissed. 8 13. The impugned order also compensates the petitioner for the inconvenience caused to them by awarding cost of Rs.10,000/- which cost has not been accepted by the petitioner, though offered by the respondent bank. The learned counsel for the respondent bank states that if directed by this court, respondent bank would deposit the amount in DRAT within two weeks of the date of passing of this order. On depositing the said cost, it will be open for the petitioner to withdraw the same, If the petitioner chooses not to withdraw, the bank would give set off to the petitioner in respect of the said amount. 14. The learned counsel for the petitioner states that this court may stay the effect and operation of our decision. In view of the fact that we have dismissed the petition, there if no question of granting any stay. Therefore, the request cannot be accepted. ( J.N. PATEL, J ) ( J.N. PATEL, J ) ( J.N. PATEL, J ) 9 ( K.K. TATED, J ) ( K.K. TATED, J ) ( K.K. TATED, J )