IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4800 of 2010 Brij Kishore Prasad, S/o-Late Bindeshwari Prasad, Dhurlakha House, Bhawar Pokhar, Patna-800004. -Petitioner. VERSUS 1. Debt Recovery Tribunal, Boring Canal Road, East, Patna, represented through its Presiding Officer. 2. State Bank of India, through its Branch Manager, Industrial Finance Branch, Nageshwar Colony, Boring Road, Patna. 3. State Bank of India, Boring Road Branch, through its Branch Manager, Boring Road Branch, Patna. -Respondents. ----------- 02 22.03.2010 It is indeed tragic to note that a small non-issue had unfortunately become an issue. Various contentions were raised by the petitioner, being a guarantor, is being persuaded by the State Bank of India (S.B.I.), challenging the action of the State Bank of India. In my view, it is not necessary to consider any of them for the moment except as noticed by the Debt Recovery Tribunal (DRT) in paragraph-10 of the order passed in SARFAESI Appeal Case No.28 of 2007 being order dated 12.11.2009. It clearly mentions that petitioner had demanded several documents, which were documents apparently in the possession of the S.B.I., in stead of the DRT directing the S.B.I. to furnish those documents, the DRT completely on transit and wrote everything denying those documents to the petitioner. It left to the petitioner to make an application under R.T.I. and/or to go to the registry of the DRT. That can be done by a simple order passed by the DRT, directing the S.B.I. to produce those documents, which are part of another - 2 - independent proceeding before the DRT. Having heard the learned counsel for the petitioner and learned counsel for the Bank, I fail to appreciate why such a small non-issue was made an issue. Here, I would quote from the case of National Insurance Co. Ltd., New Delhi, V. Jugal Kishore and others since reported in AIR 1988 Supreme Court 719 as hereunder:- “……..The Supreme Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case the instrumentalities of the State such as the appellant Insurance Company who are under an obligation to act fairly……” The S.B.I. itself to cut short the whole litigation produced those documents, because I take it that the Bank is anxious to recover its dues unless production of those documents would embrace the Bank in any manner. Learned counsel for the petitioner submits that unless the documents are made available, the petitioner was not in a - 3 - position to conduct its appeal in a proper manner. For one of the pleas taken by them was that the petitioner had long before to the knowledge of the Bank resigned as a Director of the Company, though his personal guarantee continues. Other Directors who continue gave fresh mortgages which were to relieve the petitioner of his guarantee, but to the knowledge of Bank itself, notwithstanding the mortgage the other Directors conveniently disposed of those mortgaged properties. The Bank took no effective steps to get those securities secured. Thus, it permitted securities vanished. Having doe so, then in terms of the provisions of the Contract Act petitioner was totally relieved of his obligation candidly. Learned counsel for the Bank admits that the properties which were mortgaged by the continuing Directors were sold of notwithstanding the mortgage but he argues that notwithstanding that the petitioner would continue to be liable. It is not for this Court to decide those issues, as this Court is remanding the matter to the DRT for fresh consideration, after all the documents as asked for by the petitioner, are supplied to it. It would be denial of natural justice if documents which are to be used in defence by the petitioner and are in custody of the Bank are not given or disclosed to the petitioner. All I can say by reading the order of the DRT is, the DRT is of the view that justice is delayed would amount to justice being denied to the State Bank of India, I would only add that it is equally true that justice hurried is justice buried, which is - 4 - not the intention in this case. I, therefore, have no option but to set aside the order of the DRT, which has been passed in course of violation of natural justice and remand the matter for fresh hearing after the respondent-S.B.I. makes over all the documents, as asked by the petitioner, after such documents being supplied, hearing the parties in accordance with law, the DRT would proceed further. With these observations and directions, the writ petition is disposed of. Trivedi (Navaniti Prasad Singh, J.)