CANARA BANK vs M/s SSJV Projects Pvt Ltd and Others on 6 June 2024

1. Canara Bank

A Body Corporate

Constituted under the Banking

Companies (Acquisition and Transfer

Of Undertakings) Act 1970 having its Head Office at No.112, JC Road Bangalore – 560 002.

. . . 1st Respondent/Applicant

2. M/s. SSJV Projects Pvt., Ltd

Represented by its Director

A Company Registered under the Companies Act 1956

Having its registered office at

12th Floor, SN Towers,

25.2, M.G Road

Bangalore – 560001

. . . 2nd Respondent/1st Defendant

3. Mrs. Harini Shetty

W/o. Mr. Manohar Shetty

Residing at No.861, 13th Main,

3rd Block, Koramangala

Bangalore

4. M/s. Ghataprabha Agro Farms Pvt., Ltd.

A Company Registered under the Companies Act 1956

Having its registered office at Plot No.3892, MHT Hills,

2nd Venture, Opp. JNTU College

Kukkatpaly

Hyderabad – 500 072

5. M/s. Mandaragiri Greenfields Pvt Ltd

A Company Registered under the Companies Act 1956

Having its Registered office at Flat No.102, Sri Ramana Enclave, Madhura Nagar, SR Nagar Post Hyderabad – 500 038.

6. M/s. Dronagiri Farms Pvt., Ltd

A Company Registered under the Companies Act 1956

Having its Registered office at Flat No.103, Sri Ramana Enclave, Madhura Nagar, SR Nagar Post Hyderabad – 500 038.

7. Ashwini Shetty

W/o. Sujith Shetty

Residing at No.W-377, East Main Road

Anna Nagar, West Extension Chennai – 600 101

. . . Respondents 3 to 7/ defendants 3 to 7

Ld. Counsel for Petitioner/2nd Defendant :- Adv. Sh. Bhagvath Krishnan Ld. Counsel for 1st Respondent / Applicant :- Adv. Sh. M.L.Ganesh : - ORDERS ON IA NO.151/2023 - :

1. The 2nd Defendant files this IA seeking permission to cross – examine the AW1 Mr.S.P.Sivakumar. The application is supported by an affidavit by the 2nd Defendant who is the Director of the 1st Defendant Company.

2. It is averred in the affidavit that the case of the Applicant Bank is that certain bank guarantees issued by them were invoked towards the beneficiaries, which fell due recoverable by Defendants. It is also deposed that the Proof Affidavit of AW1 does not contain the details of the dates and documents of invocation of bank guarantee. The evidence by affidavit submitted by the bank had spoken to a fact that “first Defendant requested for bank guarantee commissions on annual basis and the same was accepted by the bank” – which is denied by the 2nd Defendant and no proof is produced. In view of the above, the 2nd Defendant craves permission to cross-examine the said Mr.S.P.Sivakumar, AW1.

3. The Applicant Bank has filed the counter affidavit with a prayer to dismiss the IA. In the counter affidavit, certain events and the details of the proceedings on the writ side and under the SARFAESI Act and the other connected proceedings are detailed. It is submitted that the instant application is not filed by the Defendant No.1 Company, but by D2 in his personal capacity. The contention of the 2nd Defendant that NHPC Ltd. has not invoked Bank Guarantee, the same is to be demonstrated or rebutted through positive evidence. Cross – examination cannot be permitted before the Tribunal. It is also seen from the counter that the bank guarantees invoked in total 41 with the bank guarantee numbers the amount, the beneficiary and the date of such invocation are all furnished in the counter.

4. During the course of arguments, this Tribunal directed the Applicant Bank to give further details of invocation of bank guarantees and the letter addressed by the bank demanding D1 to defray the amounts invoked. Accordingly a memo dated 31.05.2024 is filed on 03.06.2024. In the memo further details of four bank guarantees invoked and paid to beneficiary namely NTPC Ltd. along with the necessary details are also furnished.

5. Having heard the Ld. Counsel on either side, this Tribunal has considered the bone of contention of the 2nd Defendant to insist for cross – examination of the bank witness. The sole ground is that the details of the bank guarantees invoked with respect to its number, beneficiary and the amount and the dates of such invocation is sought to be revealed through the cross-examination. It is seen that the same details are furnished by counter and further memo filed on 03.06.2024, which copies are already in the knowledge of the Defendant No.2. The witness even if recalled for cross- examination, the same would be parroted again.

6. The Ld. Counsel for the Defendant No.2 relied on the ruling in Sonu Textiles, Vs. Punjab National Bank 2007 SCC Online BOM 935 to emphasize the need of cross examination. In the said ruling, it is held that “it will be difficult to provide for any straight jacket formula universally applicable as it would primarily depend on the facts and circumstances of each case, whether or not the Tribunal should pass an order for production of witness for cross-examination or not. However, while exercising such power, the Tribunal has to keep in mind that the purpose of cross-examination is normally to test the veracity of the witness and to bring true and correct facts on record. These are primarily matters relating to procedural law and which should be enforced objectively and with clear intent to serve the ends of justice.” (Para-9).

7. In the light of the above guidelines, this Tribunal had perused the documents annexed with the proof affidavit Exh.A54 to Exh.A191 are the relevant documents concerning the bank guarantees, showing the names of the beneficiaries, the extensions from time to time thereof and these voluminous documents along with the details furnished in the counter and further memo filed will bring the truth on record and correctness of the facts. The recalling of the witness in these circumstances will be only an exercise to repeat the facts which are already spoken to in evidence by way of affidavit. In view of the above, the prayer in the IA does not serve any practical purpose, but would be only a wastage of time and an exercise in futility. For the aforesaid reasons, there is no merit in the IA. Consequently, the following

: - O R D E R - :

IA No.151/2023 stands dismissed. No costs. Sd/- (A.S.JAYACHANDRA)

PRESIDING OFFICER

DRT-I, CHENNAI

(Dictated to PS who typed in the system, corrected, signed and pronounced in open court on this 6th Day of June,