HDFC Bank Ltd v. Tour N Travel India

1. The petitioner challenges the order dated 16.11.2022 passed by the learned Trial Court in CS 52/2017 titled “Tour N Travel Vs. HDFC Bank Ltd. & Anr.” whereby the learned Trial Court has closed the right of the petitioner/defendant to lead evidence. [ The proceeding has been conducted through Hybrid mode ]

2. Mr. Hussain, learned counsel appearing on behalf of the petitioner/defendant submits that on one occasion learned Trial Court/Presiding Officer was on leave and on the other occasion, the witness of the petitioner was travelling and for that reason, the witness of the petitioner was unable to appear before the learned Trial Court for CM(M) 35/2023 2 recording of the evidence. It is also informed that the evidence by way of an affidavit was already placed on record prior thereto and on that basis, learned counsel submits that there is no wilful delay on the part of the petitioner/defendant.

3. Learned counsel appearing for the petitioner/defendant also submits that one chance may be provided so as to enable the petitioner to make good his case by way of examination of witnesses. Learned counsel submits that it restricts its right to examine only one witness.

4. Mr. Munish Singhal, respondent appears in person and vehemently opposes the petition and submits that conduct of the petitioner/defendant has not been above board and delay in the disposal of the present suit had occasioned on various dates of hearing due to the tactics adopted by the present petitioner.

5. Mr. Singhal also submits that there is no reason or explanation provided by the petitioner/defendant as to why the witness had not appeared before the learned Trial Court when the date was fixed and was in the knowledge of the petitioner bank. On that basis, Mr. Singhal submits that the present petition be dismissed with costs.

6. This court has considered the rival submissions and perused the impugned order challenged herein. The impugned order passed by the learned Trial Court is bereft of any reason and there is no material in the impugned order to ascertain as to on what ground, the learned Trial Court has closed the right of evidence.

7. It goes without saying that the parties have complete right to defend their cases by leading cogent evidence and the deprivation of such right would amount to a drastic curtailment of right to fair trial. CM(M) 35/2023 3

8. This Court has also considered the other submissions made by the parties before it and is of the considered opinion that one last and final opportunity may be granted to the petitioner/defendant to examine one witness.

9. Since the petitioner/defendant has submitted that there is only one witness to be examined by it and the fact that the suit is coming up for consideration on 14.03.2023, it would be in the interest of justice to direct the learned Trial Court to record the evidence of the sole witness on 14.03.2023 and the cross examination may also be conducted and concluded on the very same day in order to curb the further delay in the adjudication of the suit.

10. The petitioner shall ensure that its witness is present before the learned Trial court on 14.03.2023.

11. Any infraction in the direction would entail automatic vacation of the permission so granted.

12. The aforesaid directions for recording evidence of sole witness of the petitioner/defendant is, however, subject to payment of Rs.50,000/as costs. The cost shall be paid to the respondent in person on 14.03.2023, prior to the commencement of the examination of sole witness of the petitioner/defendant against a proper receipt which shall be filed before the learned Trial Court with proper index.

13. The petition is disposed of in view of above terms.

TUSHAR RAO GEDELA, J. MARCH 7, 2023ms