State Bank Of India v. Allied Chemical Laboratories & Another

1. Special leave granted.We have heard Counsel for the parties.

2. The appellant has challenged the impugned order of the High Court of Orissa at Cuttack dated 16th August, 2004 in Writ Petition (C) No. 2428/2004 whereby the High Court while allowing the writ petition preferred by the respondents held that the DRT, Cuttack violated the principles of natural justice by not permitting the respondents to cross-examine the witness, whose evidence on affidavit was entertained. The High Court rejected the contention that an appeal could have been preferred against the order went on to hold that where principles of natural justice have been violated the jurisdiction of the High Court under Articles 226 and 227 of the Constitution can be invoked to set right the injustice caused to the petitioner. The facts of the case are that a suit was filed by the appellant- State Bank of India for recovery of a sum of Rs. 23 lakhs and odd on 12.10.2001. The affidavit by way of evidence was filed on behalf of the bank on 21.1.2002. The respondent filed its written statement on 16.2.2002 and its objections to entertaining the affidavit by way of evidence of 6.10.2002.

3. The DRT, Cuttack on 11.11.2002 rejected the application filed on behalf of the respondents for cross-examination of the deponent before it. This order was not appealed against. Counsel submitted that this was not necessary in view of the observations contained in the order that if during the course of the hearing it was felt necessary to re-consider the matter, appropriate orders may be passed.

4. The Debts Recovery Tribunal heard the matter finally on January 31, 2003 and the claim of the bank was allowed with simple interest @ 13 per cent per annum. The respondent did not prefer an appeal as provided under Section 20 of theagainst the decree passed by the DRT. Much later, after about 10 months, one of the defendants filed a writ petition before the High Court of Orissa at Cuttack on 24.2.2004 making a grievance that the deponent was not permitted to be cross-examined. There was, therefore, violation of principles of natural justice.

5. We have heard Counsel for the parties. We fail to understand how the High Court could have exercised its jurisdiction under Articles 226 and 227 of the Constitution to set aside a decree/final order passed by the DRT on 9.4.2003, in a collateral proceeding wherein the decree/final order was challenged indirectly on the ground that the application of the respondent for cross-examining the deponent had earlier been wrongly rejected. We have no hesitation in holding that when the DRT did not accede to the request of the respondent to cross-examine the deponent, it could have, in the appeal preferred by it, assailed the decree/final order on that ground and the Appellate Authority would have passed appropriate orders. The mere fact that the respondent had not been given an opportunity to cross-examine the deponent did not enable the respondent to by-pass the provision for appeal and approach the High Court directly by a writ petition under Articles 226 and 227 of the Constitution of India, challenging the decree/final order on the ground that the order earlier passed, refusing to permit the cross-examination of the deponent, was erroneous.

6. In the facts and circumstances of this case, we hold that the respondent ought to have availed the remedy provided under Section 20 of theand preferred an appeal before the Appellate Tribunal wherein he could have urged all his grievances and challenged the decree/final order passed by the DRT. The order passed by the High Court in exercise of writ jurisdiction is wholly unjustified and it is accordingly set aside.

7. The appeal is allowed.

8. No order as to costs.