DRT Solutions Weekly Mail – 110th Issue dated 18th June ’10

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(1) If ‘No Debt Due’, No Liability is incurred by the Guarantor

If ‘No Debt Due’, No Liability Is Incurred By The Guarantor

Essential Feature Of Guarantee-Recoverable Debt Necessary: The purpose of a guarantee being to secure the repayment of a debt, the existence of a recoverable debt is necessary. It is of the essence of a guarantee that there should be someone liable as a principal debtor and the surety undertakes to be liable on his default. If there is no principal debt, there can be no valid guarantee. A contract of guarantee is a tripartite agreement which contemplates the principal debtor, the creditor and the surety. This was so held by the House of Lords in the Scottish case of Swan v. Bank of Scotland {(1836) 10 Bligh NS 627} decided as early as 1836

            ‘The payment of the overdraft of  a banker’s customer was guaranteed by the defendant. The overdrafts were contrary to a statute, which not only imposed penalty upon the parties to such drafts but also made them void. The customer having defaulted, the surety was sued for the loss.’ But he was held not liable. The court said that “If there is nothing due, no balance, the obligation to make that nothing good amounts itself to nothing. If no debt is due, if the banker is forbidden from having any claim against his customer, there is no liability incurred by the co-obligers.” [Swan v. Bank of Scotland {(1836) 10 Bligh NS 627 per Lord Brougham; See also Lima Leitao & Co v. Union of India, AIR 1968 Goa 29; Agencia National v. Chowgule & Cia, AIR 1967 Goa 88}]

(2) Nation wide Bank Scandal – Misuse of Securitisation Act – disposal of securities at throw away prices – writ in the Supreme Court

‘Dear Sir,

        As you know that loans are sanctioned by banks only after about 30% margin & mortgage of properties at market prices accepted by Banks. It is also a fact that there is inflation per Government records every year, so that prices of mortgaged properties enhance substantially. How can there be NPA, if mortgaged properties are sold without allowing sellers to hide unaccounted moneys?

        It is your knowledge that properties sold in official way by Banks with assistance of recovery officers are in 99.99% cases per public opinion at extremely distress sales (with help of expert so called Valuers, who allow sales of mortgaged properties at throw away price) and that advocates of Banks and officers of Bank now have manipulated to have air-conditioned flat offices and residences, when advocates gets just a few thousands for entire proceedings in DRT /DRAT & officers have salary of only a few thousand.

       Do you know that NPA are about Rs. 1,00,000 crores per Ex G.M. RBI  but I propose to reduced NPA to nil, if the said mortgaged properties are allowed for investing unaccounted moneys with due safety & security by Union of India, also transfer properties to purchasers (depositing unaccounted moneys) at prices per gantry (the declared price of land per gazette) by State Government)? Do you feel that Borrowers shall get 100% or more market price by moving DRT /DRAT after Union of India approves such sales by unaccounted moneys? Do you have spontaneous alternative suggestion to serve nation spiritually?’

Our Views:-

During ‘DRT Conference’ at Indore in May ’08, it was voiced that there is a nation wide scandal by the bank officials acting in collusion with the Valuers, Recovery Officers, Advocates and Property Dealers to spot out securities. Misusing the provisions of the Securitisation Act, they chart out plans to dispose off the properties at throw away prices with the intention of distributing the booties among themselves. We helped our clients to include the said scandal in their Appeal under Sec 17 by impleading all the agencies and questioning the valuation. As a result the auction/sale was stayed/stopped. Even the properties sold out were restored with damages. The said scandal is still going on.

DRT Solutions Weekly Mail – 109th Issue dated 11^th June ’10

(1) Importance of Review – Revelation by Justice Ahmadi,  Former Chief Justice Supreme Court of India

In the matter of Bhopal Verdict, vide news item page 2 of the ET Mumbai issue dated 9^th June, Justice AM Ahmedi former CJI who delivered verdict in 1996 made an important statement that ‘If I have committed any mistake with the judgment, there was ample time for the CBI to get it reviewed.’ Our observations are as under:-

(1)    such statement shows importance of ‘Review’ as a remedy to correct errors and mistakes in the Judgments.

(2)    We have been emphasizing use of such important remedy since several years and in fact we won a case using this tool in 1997.

(3)    The importance of ‘Review’ has assumed highest ranking under Indian Judicial System for the simple reasons that the Judges are heavily overloaded and hence practically in all the judgments there are mistakes and errors. Even the adjudication of Review Petition will have such errors and mistakes for which we have emphasized use of Sec 151 of CPC.

(4)    The tool of ‘Review’ may also be used in criminal cases.

(5)    The above is all the more important in DRTs where the conditional legislation with reference to time makes the whole trial amenable to numerous errors and mistakes. That is why our view is that if normal civil suit takes 15 to 20 years, the DRT trial should take 30 to 40 years. It is needless to mention that use of counter-claim or damage suit becomes highly essential for such an ancient system for which we have done least to improve upon except creating a Constitution but leaving the court, advocates and judges as they were in British days of Police Raj.  Justice Krishna Iyer is right when he said that our judicial system is 200 years old.

(2) Chairman of a Bank is a necessary Party in DRT Litigations – Bhopal Case is an example

In the matter of Bhopal case, Keshub Mahindra, non-executive Chairman of Union Carbide, India has been sentenced for two years to jail vide page 1 of the ET Mumbai issue dated 8^th June. Our views are as under:-

(1)    We have been impleading the Chairman of the bank in the WS and Counter-claim or Damage suit of our clients in all bank cased prepared by us since 1994.

(2)    We have been inviting attention to several RBI Guidelines issued since 1976 which lay down special duties and responsibilities of the Chairman of the banks.

(3)    In view of above all the pleadings in the defence of borrowers and guarantors must include the Chairman of the bank. If it has not been done, suitable amendment must be initiated at any stage.

DRT Solutions Weekly Mail – 108th Issue dated 4^th June ’10

The above facts and circumstances were publicized by our client in prominent daily news papers. The said  news paper publication was as under (names of the client, bank and other details have been altered due to obvious reasons):-

“P U B L I C   N O T I C E

ABC & Co Limited

1.       That ABC & Co Ltd has filed suit for loss and damages for Rs.450 Crores (Rupees Four hundred Fifty crores) against XYZ Bank / Stressed Asset Management Branch, for deliberate damaging acts, willful violation of statutory law contained in RBI guidelines, breach of statutory duties and other wrong doings etc. due to which the company has suffered.  The Civil suit No. 510 dated 12.04.2010 is now pending for adjudication before Hon’ble Court of the Civil Judge (Senior Division).  Since the claim amount of the company is much higher then the amount claimed by the bank, there is no debt due from the company till the said damage suit is finally adjudicated by the legal appropriate forum.

2. Further, the Hon’ble Debt Recovery Appellate Tribunal, on dated 11.05.2010 was pleased to set aside the order of Debt Recovery Tribunal, and has directed cross examination of bank officials namely Mr. Gopal Das and Mr. Narayan for ascertainment of facts and crystallization of dues if at all.  The cross examination is in progress after which arguments will begin.  Therefore, there is no recovery order existing against the company as on date rather the Company is hopeful of getting substantial amount from the bank on account of its said damage suit.   This information is issued in public interest including for those having interest in the company.

For and on behalf of ABC & Co  Ltd

Sd/

Authorised Officer

Place, 21^st  May 2010

(2) Cross examination of Bank Officials in DRTs

DRT Solutions Weekly Mail – 107th Issue dated 28th May ’10

(1) Cancellation of Auction Sale by Bank – Victory for our Bangalore client

(2) CBI Report tarnishes the PSU Banks on account of increasing quantum of bank frauds

CBI report tarnishes PSU banks
By Sarbajeet K Sen May 23 2010 , New Delhi

Agency says lenders even collude with wilful defaulters
A note prepared by the Central Bureau of Investigation (CBI) has thrown light on how public sector banks compromise on frauds. Not only have some of the banks made compromise settlements with ‘wilful’ defaulters in clear violation of guidelines but, more surprisingly, even hired the services of some of them.

The note says some instances of fraudsters rendering consultancy services to banks on fraud-related matters have been reported.

Worse, compromise settlements with defaulters have often been for far lower amounts than the value of collateral pledged with a bank. Settlements have been reached with the same defaulter several times, the note says, hinting at collusion between bankers and fraudsters.

The note was prepared for discussion at a recent high-level meeting of bankers.

Bankers who attended the meeting, however, declined to comment.

The May 12 meeting, chaired by central vigilance commissioner (CVC) Pratyush Sinha, was attended by CBI director Ashwini Kumar and heads of some public sector banks, including Union Bank, Bank of Baroda, Indian Bank, Allahabad Bank and Canara Bank.

According to the note, banks also resort to compromise settlements to recover a part of the dues to minimise losses on account of bad debts. Such lapses eventually lead to the banks taking a greater hit than warranted.

Barring Punjab & Sind Bank, all public sector banks are listed on the stock exchange and shareholders thus have large interest in their finances.

“Banks tend to look at their own interest and not at other banks or the banking industry as a whole,” the note says, underlining the need for coordination among banks on checking frauds.

Banks even protect officers whose prima facie involvement in a fraud has been established. “Competent authorities do not sanction prosecution of an officer even when the chief vigilance officer and the chairman and managing director of a bank are convinced about his involvement. Sanctions are declined on extraneous considerations, not related to the case, which may not be healthy for the banking sector as a whole,” the note says.

According to RBI data presented at the meeting, the incidence of frauds on government-owned banks and the amounts involved have been on the rise. In 2004-05, the number of frauds was 2,633 involving Rs 600 crore. This has progressively risen to 3,425 cases involving Rs 1,527 crore. RBI’s data on individual cases of fraud are made available only to the investigating authorities and are not in public domain.

Officials in the Indian Banks’ Association (IBA), whose head too attended the meeting, said banks were asked to attend the meeting not on the basis of their experience of frauds but their size and importance in different regions.

Speaking to Financial Chronicle, Sinha said the vigilance commission was preparing a report that would suggest remedial measures based on the discussions at the meeting which were for between the banks and the CBI. “We will come out with a report on all this soon,” Sinha said.

Sinha said there were discrepancies in the fraud data available with RBI and the cases forwarded to CBI for investigation. “CBI has said that banks often held back vital information and did not follow prescribed procedure. RBI’s data reveal that many cases were not reported to CBI,” he said.

Procedures require banks to report frauds of above Rs 1 crore directly to CBI. Smaller frauds are to be reported to the local police.

According to officials, CBI’s Kumar suggested that banks improve coordination and cooperation among themselves in reporting frauds, especially in alerting a consortium or multilateral arrangements among them.

Kumar also suggested computerisation of land records and a central electronic registry to provide a database of mortgages created by all public sector banks. This would help banks deal with the problem of fraudsters availing of multiple loans against the same property.

sarbajeetsen@mydigitalfc.com

DRT Solutions Weekly Mail – 106th Issue dated 21st May ’10

(1) Transfer of Administration of Tribunals from the concerned Ministry to Ministry of Law

The Supreme Court of India in recent judgment on NCLT i.e. Union of India vs Madras Bar Association decided on 11.05.10 has made several important observations to be implemented by the Central Govt., one of which in Para 56(xiii) is :-

“The administrative  support  for  all  Tribunals  should  be  from  the Ministry of Law & Justice. Neither the Tribunals nor its members shall seek or  be  provided  with  facilities  from  the  respective  sponsoring  or  parent Ministries or concerned Department.”

This was long overdue. The Banking Division under the Ministry of Finance was controlling the DRTs even to the extent of holding regular meetings with the POs was highly against the principles of independence of the Judiciary. Some of the POs were favouring banks on account of such administrative control including appointments of the POs. All this will now be corrected.

(2) Applications under Sec 151 of CPC are not governed by Limitation Act

The Sec 151 of the CPC relates to the Inherent Power of the Court laying down :-

“Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

The exercise of inherent power is not fettered by any rule of limitation. This section does not deal with any application nor does it lay down procedure for any application. It is a provision recognizing the inherent power of the Court to act ex debito justitiae. An application invoking this power is not one which a party is required to make under any provision of the Code for setting in motion any machinery of the Court. Therefore it is not governed by any Article of the Limitation Act. Vide AIR 1953 SC 98.

DRT Solutions Weekly Mail – 105th Issue dated 14th May ’10

DRT Solutions Weekly Mail – 104th Issue dated 7th May ’10

(1) Banks find that the Securitisation Act is not helpful

This refers to the news item published in the Economic Times in its issue dated 6^th May ’10 at page 17 and titled as ‘Banks get more teeth as govt. speeds up loan recovery’ Our comments are as under :-

(a)    It is stated that ‘The current law i.e. the Securtisation Act came into force in 2002 and was widely seen as empowering the lender but has not really helped because of operational issues’

Our Comments :-

(i)The expectation of the banks right from beginning itself was wrong. They desired that they should be able to recover their dues quickly without following any law. They forget that in a democratic setup they have to obey the rule of law.

(ii) Further they are again mistaken that there are operational issues. They are having well established law departments, several experienced counsels, legal expertise, police and courts to help and money to fight right from DRT to Supreme Court. On the other hand, the borrowers have all hurdles and deficiencies. Even t then the banks are unable to fight with our clients. The basic issue is that at every stage of operations, they have to obey the law which they do not want to do.

(b)    It is further stated that ‘ The new rules will give banks at least 15 days to reply to the objections raised by the borrowers’

Our Comments :-

(i) The banks are mistaken again. The objections raised by us are so exhaustive as well as containing the loss and damages suffered, the banks can not reply correctly. It is not the time frame but on account of violations of law, proper reply can not be given even in 15 days.  

(c)     It is further stated that ‘Banks have also requested for reduction in the notice period of 60 days time they have to provide to the borrower to settle dues before they send a recovery notice.’

Our Comments :-

(i) The banks are mistaken again. Many of our clients come to us only at the fag end of 60 days period. Hence we have already started using e-mail communication with the bank and their head offices which they are unable to attend properly. Reducing period will not help the banks at all.

Overall Comments :-

We reiterate that  the best recovery will be by helping the borrower to revive his business so that profits are generated. Otherwise any coercive recovery using the tool of law will not work at all. Rather the banks will be saddled with damages and counter-claims and the DRTs will take 15 to 20 years to come to any conclusion.

(2) Banks, court staff fake Judges’s orders

JHAMTANI KANAYA kdjhamtani@gmail.com has sent the following mail:-

http://www.punemirror.in/index.aspx?page=article&sectid=4&contentid=20100503201005032303421356210ec75&sectxslt=&pageno=1

Rs 15,000 crore India's biggest court scam yet? Ring sent goons or cops to harass borrowers. A room full of fake warrants comes to light. Three are suspended, but what about the big fish? They forged non-bailable arrest warrants, threatened borrowers, and extorted huge amounts. - By K R Sreenivas, Posted On Monday, May 03, 2010 at 11:03:42 PM

This is probably one of the biggest frauds committed in a court in India's history. The XIV Additional Chief Metropolitan Magistrate (ACMM) Court, tucked away in the Mayo Hall court complex in Bangalore, has unearthed an estimated Rs 15,000 crore fraud committed to benefit banks, financial institutions and its advocates in the last three years.

Bangalore Mirror has exclusive details of the scandal committed on innocent citizens of India. According to records of the court, a room full of fake Non-Bailable Warrants (NBW) of arrest, have been seized.

The investigators have also found fake stamps of signatures of judges, court stamps, and fake court papers. The fake documents were found in the pending branch of the court complex. These documents have been used against innocent borrowers of ICICI Bank, Kotak Mahindra Bank Limited, Cholamandalam DBS Finance Limited, Reliance Capital and HDFC Bank among others. The fraud has been committed against borrowers whose cheques bounced.

Modus Operandi

When an EMI cheque bounces, the bank and its advocates get into the act by getting forged documents and NBWs out of the 'parallel court' operating at the court. Then, the bank sends its musclemen or takes the help of the police to confront the 'accused' with fake warrants. After threatening the debtor, they recover the entire loan amount, and not just the EMI.

This is against the procedure laid down under Section 138 of the Negotiable Instruments Act, 1881. No sworn statement of the bank manager is recorded nor is any sworn statement taken in any of these cases. Another major fraud is that most of the accused are not in Bangalore. Many live in cities like Kolkata, Chennai, Hyderabad, Mumbai, Allahabad, and in remote corners of Jharkand and Bihar. The story unfolded after many such harassed customers complained to the court, sources said.

No Jurisdiction

The law says a Bangalore court cannot have jurisdiction on an offence committed outside the city. The truth is, none of these accused had even visited Bangalore before. So, there was no question of the XIV ACMM having jurisdiction over these people. The scam has shaken the judiciary in Karnataka. One source told this journalist that an advocate had filed 30,000 such cases allegedly on behalf of Cholamandalam DBS Finance in the last six months. An advocate reportedly representing Kotak Mahindra Bank has filed around 10,000 fake cases in the last six months. The preliminary inquiry has revealed that advocates representing many banks, in collusion with court staff, have created their fake stationery for preparing the orders.

These orders don't have the date of execution nor are the so-called signatures supported by dates. A closer look at the order sheets reveals that they have been faked. XIV ACMM A Gurumurthy refused to meet the Bangalore Mirror team when we said we wanted to get details from him.

Normally....

What is the procedure in case an EMI cheque given to repay a bank loan has bounced? The bank's advocate has to send a legal notice within one month of the date of dishonour of cheque. After the customer is served a notice, he or she has to be given 15 days to pay up the EMI or give a reply, failing which the bank has to approach the jurisdictional court and file a private complaint. Following this, the court records the sworn statement of the bank and then issues a summons to the purported defaulter.

After the summons is issued, the customer who now becomes an accused, is given a chance to clear his or her name. If the summons is disregarded, an NBW (non-bailable warrant) of arrest is issued. Normally, the court staff consisting of the court clerk and the sirastedar get the signature of the magistrate and then despatch the summons and NBW papers on his directions. In this case, the court staff colluded with the advocates and stamped rubber seals of the signatures of the magistrate without his knowledge. To cover up, the court staff entered case files in the court register to make it appear as if they were genuine cases, sources said.

DRT Solutions Weekly Mail – 103rd Issue dated 30th April ’10

Following is the highlight of the contest in DRT Bangalore. The entire case was piloted by us. Our senior Advocate Mr. B.K. Dubey attended all dates at Bangalore. All the arguments were handled by him :-

(a)    Right from the beginning, we were informed that the PO DRT Bangalore was a hard nut to crack. He was asking several questions from the advocates during the arguments. It was learnt that he was not allowing any stay without asking for any advance. On many counts, he was leaning towards banks and financial institutions as against being balanced, fair and reasonable. Keeping such facts in view, we planned our strategy.

(b)    As a whole, the borrower (i.e. public) has to fight against the new ruler (i.e. public servants). The only tool is the rule of law and the only method is to put down everything in writing.

(c)    Initially there was tough fight. On account of written records such as the pleadings and the written arguments, the said PO did not have any option but not to insist for any deposit before awarding any stay.

(d)    The said PO tried his best to expedite the process by creating such situation so that only final arguments be held. This was resisted by several applications. The bank bueauracracy could not reply to the said applications in time. Counter-claim was also filed.

(e)    Finally the PO had no option but to declare that the bank did not comply with the provisions of law, as a result, the proceedings initiated by the bank under SARFAESI Act are not validly issued in accordance with the provisions of the Act. In his 11 pages order the said PO concluded that under the present circumstances, the present appeal preferred by the Appellant has to be allowed with costs.  

(2) Preventive and Remedial Measures to ensure Proper Order of the Court

Following are the important measures to ensure proper order of the Court:-

(a)    At every point of time during adjudication, it is quite important that proper orders are issued by the Court. Any lapse may render the case weak for all time to come.

(b)    First thorough research be done about the facts and the applicable laws before initiating drafting of the pleadings of the applications or petitions.

(c)    The said pleadings be self sufficient.

(d)    All the important points be pressed during the arguments.

(e)    Written arguments be submitted specifying clearly the points pressed during the arguments.

(f)      If there is any deficiency in the order and depending on the said deficiency, either Review Petition be filed or an application under sec 151 of the CPC be filed.

(g)    The above process is to be repeated in handling the said Review Petition or the said application till the order contains all the points which are material for the case.

DRT Solutions Weekly Mail – 102nd Issue dated 23rd April ’10

Since past several years, we have been emphasizing that once counter-claim or damage claim has been filed by the borrower, the claim of the bank can not be finalized till the said counter-claim or damage claim has been finally decided by the DRT or civil court.

Our above contention has been validated by DRAT Mumbai vide the following judgment reproduced below :-

BEFORE THE DEBTS RECOVERY

APPELLATE TRIBUNAL, AT: MUMBAI

Misc. Appeal No.144/2008

Mr.Harilal B.Soni & Anr.                                                           Appellants

V/s.

Dena Bank                                                                                Respondents

Ms.Merlyn Monteiro for the appellants.

Mr.L.A.Nasikwala for the respondent bank.

Coram : Justice S.S.Parkar

Date: 28/4/2008

-: ORAL JUDGMENT :-

1.         This appeal has been filed against the order dated 24/3/2008 passed by the In-charge Presiding Officer, DRT-II, Mumbai in the following circumstances.

2.         The responden bank had filed the original application for the recovery of the debts against the borrowers in which the appellants have been impleaded as the guarantors and mortgagors. Thereafter the respondent bank had initiated the proceeding under the SARFAESI Act in the  year 2007. That action has been challenged by the appellants who are the guarantors and mortgators. In filing that application under section 17 there was delay. On 24/3/2008 the appellants filed an application for adjournment of the securitization application to 26/5/2008 on which date the original application filed by the respondent bank is kept.

3.         The present application was filed with a view to club the hearing of two proceedings together because the appellants are the defendants in the original application also and in the original application the borrowers had filed counter claim. It is the contention of the appellants that if the borrowers succeed in the counter claim the respondent bank cannot take action under the provisions of the SARFAESI Act. in that view, the request made on behalf of the appellants does not appear to be unreasonable.

4.         On behalf of the respondent bank it is argued that the original application is not due for hearing as the additional claim affidavit has to be filed by the respondent bank in the counter claim.  But it is pointed out on behalf of the appellants that on behalf of the respondent bank time is being taken for filing additional claim affidavit since about last one year i.e. from 16/5/2007 while the respondent bank still wants to go on with the securitization application.  Thus while on the one hand the bank is postponing filing of its additional CAOD in the counter claim filed by the borrowers but on the other hand it wants the securitization application filed by the appellants to be heard and disposed of before the respondent bank faces the counter claim filed in the original application.

5.         Secondly, it is argued on behalf of the respondent bank that there is a delay in the securitization application filed by the appellants and therefore, unless the delay is condoned, the securitization application cannot be heard and therefore, both cannot be heard together.

6.         As regards the application for condonation of delay is concerned that has been directed to be heard along with the main application filed under the SARFAESI Act. it cannot be disputed that unless the delay is condoned, the securitization application cannot be heard on merits. Hearing of two proceedings together on merits may save time of the Presiding Officer. However, the securitization application can be heard on merits only after the delay is condoned which can be considered and decided independently before the securitization application is heard.  In that view of the matter I cannot find fault in the impugned order because unless the application for condonation of delay is allowed the securitization application cannot be heard. Therefore, the DRT can hear the application for condonation of delay filed in the securitization application first and if the same is allowed then the DRT may consider hearing of the securitization application along with the original application because in case the counter claim of the borrowers is allowed by any chance the guarantor’s property cannot be sold and therefore before hearing of the original application if the property is sold and ultimately the counter claim is allowed irreparable harm and injury would be caused to the appellants.

7.         In the result, the DRT may hear the application for condonation of delay in filing the securitization application on the next date which I am told is 30/4/2008.  In case the delay is condoned then both the proceedings shall be heard together.

8.         The appeal is disposed of accordingly.

                                                                                                                        Sd/-

                                                                                                            Chairperson

(2) Liquidity is key to survival and development of Entrepreneurs

We come across several cases of the borrowers and guarantors facing problems in litigations. Though we concentrated on legal aspects, but we ponder over the source of their problems, person responsible for the said problem and the solutions. We feel the most important aspect is the liquidity.

For new and first generation entrepreneurs, the origin of the problem is banks, institutions and Govt agencies. These agencies work on formats and calculations on paper. Real life is different from such paper work. As a result the entrepreneur gets heavily indebted from the said banks and financial institutions. Worse happens when he is compelled to resort to private borrowings. In almost all such cases, even the survival is threatened. The worst case is the agriculture farmers who don’t have any options but to commit suicides.

Survival in such crisis is possible only if there is heavy surplus generation and availability of liquid cash.

Until and unless, the banks and financial institutions understand the above, the entrepreneurs will continue to get killed and progress of the society will suffer on account of lack of entrepreneurs and entrepreneurship.

DRT Solutions Weekly Mail – 101st Issue dated 16th April ’10

(1) Feedback Mails on the Centenary Issue

On the Centenary Issue, we are still receiving lot of felicitations through mails. Some of them are reproduced below:-

Ambrish Tiwari, Chief Nodal Officer, Idea Cellular Ltd., in his mail dated 09.04.10 wrote as under:-

Dear Ram Kishan Sir,

Myself  and my father Mr. K.P. Tiwari, Chhindwara, who is  a Retd. District Judge, having  37 years vast experience in judiciary are regular reader of weekly mails. Father has expressed many times that  drafting of counter-claim by DRT solution is matchless and unbeatable. It is really a great assets for a borrower. Defense line covers all possible aspects of the case. It is first time in India where such a revolution is taking place in the field of Law. We are sending our best wishes to DRT Solutions that may it help to all who are in need.

Mahendra Jain from Belgaum in his mail dated 09.04.10 wrote as under:-

Respected Sir,

Sir, Heartiest congratulations on the fantastic 100Th issue of our dearest weekly mails.

We love you, adore you and are proud of you sir.!

Sanjay Jain, Industrialist from Nagpur in his mail dated 09.04.10 wrote as under:-

Respected Sir,

 On the occasion of 100th publication of news letter, please accept my heartiest congratulations.

You are doing yeomen’s service for the Entrepreneurs of our Country. Any talk regarding encouraging entrepreneurship is futile in absence of Lenders’ Liability Law / Bankruptcy Law. In our country, there is no protection to entrepreneurs, if he incurs losses in his business, his life is ruined; he is vulnerable to the whims of Bureaucrats, bankers, lawyers and our judicial system.

I first met you in September and than I realized there is a light at the end.  It is your guidance and the round the clock availability on phone and proper understanding of problem of people like us, which has kept us alive!

I am ever grateful to you for your timely support. I wish you many more years of service to entrepreneurs of the country.

Hitendra Kumar Mohanty, Industrialist from Bhubaneswar his mail dated 09.04.10 wrote as under:-

Dear Mr. Ram Kishan,

Congratulations! on the 100th issue of DRT solutions.  

Your weekly mails are indeed enlightening for helpless borrowers who have been mercilessly bullied by commercial banks after the introduction of DRT/ Securitization Acts. The SBI in  particular in Orissa, is on the rampage of shutting down MSME sector by needless/ illegal recall of loans and misusing the DRT Securitization Act, only to cease and to sell the real estate collateral securities.

Thanks to the upsurge of real estate value and therefore the extraordinary determination on the part of SBI to increase its net value by taking over properties.

I, being a victim of SBI, am fighting in the appropriate legal forum for justice based on inputs/ advice furnished by you from time to time. I am immensely benefited by the information, updates, inputs provided by you. I must thank you for your knowledge and advice and through this message; readers may be assured of the valuable services of DRT Legal Solutions.

I shall remain grateful for your timely support and God bless you.

This information was in The New York Times several weeks ago as part of their "Spotlight on the Home" series that highlighted creative and fanciful ways to solve common problems.

(2) Beware of Forged & Fabricated Warrants – Corruption in Courts, Police and Jail

Recently we have come across a case where the court staff, advocate and the complainant colluded and got issued a forged documents. The complainant himself went to the city were the accused was staying. Again in collusion with the police, he got the accused arrested. We analyzed the whole situation and the chain of the events and the implications were as under:-

(a)     In the matter of 138 NI Act, the accused through his advocate submitted an application that the order did not exist as it was beyond the limitation of 3 years and hence the court stopped issue of the warrants till the issue of the limitation was decided finally.

(b)    When the complainant found that the matter would take long time, he on the advice of his advocate played a mischief. In connivance with the court staff, a warrant was forged and issued.

(c)     The complainant himself traveled with the warrant and again with the connivance with the police served the warrant on the accused and got him arrested.

(d)    When the fraud was exposed, the clerk and the judge sensed the troubles. The judge admitted the mistake but did not release the accused.

(e)     Everyone right from the Judge, advocate, clerk, police and jail personnel were mad after money. Among these persons, the corruption was found to be so rampant as they knew that the people will play heaven and hell to get the accused released.

(f)      Normally it would have taken about a month but the whole exercise was planned properly and huge speed money was paid. As a result the accused was released in a week.

(g)    As a whole, the office of the court, police deptt and Jail staff, all are highly corrupt and Judiciary is unable to do anything. Until and unless, the Judiciary can not set right corruption in its own organization, it can not effectively adjudicate corruption cases.