DRTS-16-Azmeer Business vs UBI-SA Allowed

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DRTS-16-Azmeer Business vs UBI-SA Allowed

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Expert in:- DRT, Counterclaim, securitization, debt recovery tribunal, NCLT matters

Azmeer Business Pvt Ltd vs United Bank of India decided on 04.06.13 by DRT-II, Kolkata SA No – 101 of 2011

Presiding Officer – S.K. Mishra

DRT Solutions Citation – DRTS-018-Azmeer Business vs UBI-2013

http://www.drtsolutions.com/Azmeer-UBI-SA-allowed.htm

We have now numbered the Judgments published on this web site as DRTS-00. Accordingly all the judgments published so far have been numbered. The judgment on this page is numbered as DRTS-018.

Comments by DRT Solutions

A DRT-II Kolkata Judgment of 2013 Allowing the SA, Setting Aside Auction Sale and Ordering the Bank to Restore Possession

Utility of this Judgment – If all the wrong doings committed by banks are questioned & contested properly, the borrowers and Guarantors can win against the banks

Conclusion

If proper pleadings have been made and the case contested properly, the borrowers and guarantors can win their SAs. In this case, the borrower will have to file Review and Appeal to have their amendment to the pleadings permitted as it contains his counterclaim. This will be the only and the ultimate defence if the bank goes for Appeal and any further recovery action.

Comments

(a) The full text of the judgment is given below which is self explanatory.

(b) In this judgment the DRT has dealt with several wrong doings committed by the bank which has caused loss and damages to the borrower.

(c) In the last para, DRT has categorically stated that it is a fit case for awarding compensation but has made a erroneous and misconceived conclusion that “the defendant bank being a public sector bank, I am not inclined to grant compensation” Perhaps the PO DRT is not aware about the law laid down by the Supreme Court in Luknow Development Authority case (1994 AIR 787 1994 SCC (1) 243; JT 1993 (6) 307 and 1993 SCALE (4) 370, wherein the Supreme Court has given a verdict that such compensation can be made. An extract from the said SC judgment is reproduced below:-

“When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power and the National Commission finds it duly proved then it has a statutory obligation to award the same. It was never more necessary than today when even social obligations are regulated by grant of statutory powers. The test of permissive form of grant is over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. When the court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payers' money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries.”

(d) The proposed amendment to the SA relates to the loss and damages suffered by the borrower but the DRT has not permitted the amendment to the pleadings stating that there is no legal evidence. On one hand, the DRT itself has dealt with the wrong doings committed by the bank, what more evidence is required as it is based on the documents gone through by the DRT.

(e) Hence for the above erroneous and misconceived opinions of the DRT about the amendment and the counterclaim, the borrower has been advised to file Review and Appeal.

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Application of Law of Torts in claiming Damages from Municipal Corporations for demolition of structures, closure of shops etc:- In many parts of the country, the Municipal Corporations are demolishing structures like shops and houses which existed for number of years. The shops existing for number of years are proposed to be shut down. The affected persons should claim Damages under the Law of Torts, which would be substantial. It is learnt that in Delhi itself about 5 lac shops are to be closed down and about 25 lac persons would be out of jobs. All these persons should file damage suits in the civil court. Since the damages would be substantial, the suits may be filed as Indigent Persons. Since the damages would attract interest, the usual delay by the civil courts will not affect the final outcome. The affected shop owners may discuss the details with us on phone.

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