THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.40402 of 2014
DATE: 29.12.2014
Between:
Akkireddi Venkateswara Rao and another and The State of Andhra Pradesh and others …Petitioners …Respondents COUNSEL FOR THE PETITIONERS : SRI V.V.N.NARAYANA RAO COUNSEL FOR RESPONDENTS 1 & 2 : AGP FOR COOPERATION (AP) THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.40402 of 2014
ORDER:
This Writ Petition is filed for a mandamus to set aside order, dated 21.11.2014 in I.A.No.191 of 2014 in O.A.No.48 of 2009 on the file of the Andhra Pradesh Cooperative Tribunal, Visakhapatnam (for short ‘the Tribunal’).
The petitioners are guarantors of respondent No.5 in connection with Loan No.12/PTL, dated 10.02.1999. It is their pleaded case that after repayment of such loan, they have neither borrowed any amount nor given any consent to respondent No.5 for extension of their guarantee. However, in respect of Loan No.91/PTL, respondent No.4 filed ARC.No.328/2008-2009, in which, respondent No.3 has passed award, dated 25.05.2009 against the petitioners, who stood as guarantors in respect of the loan allegedly taken by respondent No.5.
Feeling aggrieved by the said award, the petitioners have filed O.A.No.48 of 2009 before the Tribunal. In the said O.A., they have filed I.A.No.191 of 2014 for a direction to respondents 2 to 4 to submit entire record pertaining to Loan No.12/PTL relating to respondent No.5. Respondent No.4 filed a counter-affidavit wherein it has stated that no records have been available. The Tribunal has therefore closed the I.A. giving liberty to the petitioners to adduce secondary evidence, if any available with them pertaining to Loan No.12/PTL.
Sri V.V.N.Narayana Rao, learned counsel for the petitioners submitted that the record is very much available and that respondents 2 to 4 have been deliberately avoiding to produce the said record. He has further submitted that no evidence is available with the petitioners as respondents 2 to 4 are the custodians of the record and therefore, the question of petitioners adducing secondary evidence would not arise.
In my opinion, when the petitioners are denying their liability and have raised the plea that they have neither borrowed the amount nor stood as guarantors in respect of Loan No.12/PTL, the burden heavily lies on respondent No.4 to prove the petitioners’ liability, and equally, on respondent No.3, who has passed the award, which is the subject matter of O.A. before the Tribunal, to defend his order with reference to the record. Therefore, if the record is not available, the Tribunal shall draw adverse inference in favour of the petitioners. If the petitioners do not have the record with them, they are not expected to adduce secondary evidence.
With these observations, the Writ Petition stands disposed of.
As a sequel to disposal of main petition, WPMP.No.50660 of 2014 filed by the petitioners for interim relief is disposed of as infructuous.
C.V.NAGARJUNA REDDY, J 29th DECEMBER, 2014.
Note: issue c.c. in one week.
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