DRT Solutions Weekly Mail – 20th Issue dated 26th Sept. ’08
Amended &
Updated on 20.08.16
All Weekly mails right from 1st Issue to latest, click links
above
(1) ‘Video Arguments’ appreciated by client, advocates and judges:-
We have shown the ‘Video Arguments’ developed by us for the first
time in the country to senior advocates and judges. They all appreciated it very
much and desired immediate implementation as it offers great facility to the
advocates and judges.
One of the senior advocates in Indore who is mainly practicing in
the Supreme Court informed us that he saw such system in USA in 1982 i.e. 26
years back. That means, it must have been developed there 30 to 40 years back.
He was surprised to see the new development in India.
(2) ‘Video Arguments’ exhaustive details given on our web site:-
We have received
numerous queries on the said new development of ‘Video Arguments’ and hence we
have updated our web site with sufficient details. The link is
http://www.drtsolutions.com/courtech.htm
The content of the said web
page is reproduced at the bottom of this weekly mail.
(3) Review and Appeal:-
In one of the arguments held before the District Judge on 19th
Sept 2008, the bank counsel submitted that the litigants are misusing the
provisions of Review and Appeal. We have studied this matter in great depth. We
found an exhaustive treatment of this subject by the full bench of Allahabad
High Court vide citation AIR 1948 Allahabad 353, Behari Lal vs M>M> Gobardhan
Lal. All the DRT litigant Borrowers, Guarantors and their advocates must study
this judgment as it gives analysis of Review provisions since 1859 with various
important citations.
(4) Ignorance of Borrowers in respect of Securitisation Act:-
Examination of the case in respect of one of our Chennai clients
who approached us very recently revealed that due to sheer ignorance, he did not
submit the prescribed ‘Representation & Objections’ under the Sec. 13 (3A) of
the Securitisation Act. He himself offered his factory for handing over the
possession. He unnecessarily approached the High Court. He did not raise any
claim for his loss and damages due to wrong doings of the bank. Neither he was
knowing nor he got any advice from his advocate. At this stage, he happened to
visit our web site and contacted us. We are drawing complete strategy for him.
Such ignorance is really unfortunate.
(5) Negotiations and Settlement with the Bankers:-
One of our Mumbai clients held a negotiations with the bank and
it was decided to sale one of the properties. The bankers promised to retain
certain amount and refund balance to the said client. Despite our cautioning the
client believed the bankers. Now the bank is not making any refund. In order to
avoid such embarrassing situations, we have always advised the clients to draw
out a tripartite agreement with intimation to the court of law and deposit the
amount in other bank in no-lien account. When everything is OK, then only money
should be transferred to the lending bank.
(6) Copy of our web page in respect of ‘Video Arguments is reproduce below :-
Video Arguments' presented before Court of Law for first time in India on
10.10.07, presented before All India Conference on 04.05.08 and first assignment
completed on 18.09.08
(1) We
are pleased to announce that on 10th October 2007, proposed 'Video Arguments'
was presented for the first time in the country by Mr. Ram Kishan in District
Court, Indore. Thus a history has been made in the Judicial Management in our
country. Many
retired Judges and Senior Advocates have appreciated this development and have
desired earliest possible introduction in Indian Court Rooms.
(2) All the aspects
of the said 'Video Arguments' were presented in 'All India DRT Conference' held
on 4th May '08.
(3) We
have now prepared and delivered on 18.09.08 first commercial assignment of the
said 'Video Arguments' to one of our Mumbai based client.
The following article on 'Video Arguments' gives the detail of the this
important method of Arguments.
Video Arguments
(Proposed
Method - First Time in India & Presented Before
District Court,
Indore on 10th Oct. ’07)
A practical
method to improve Justice
Delivery System and
to reduce time,
cost and pendency
in Indian Courts
- Ram Kishan*
M – 9691103689
Synopsis
There
is heavy pendency of cases in Indian Courts. Despite huge scarcity of judges,
still better results can be achieved by employing modern technology by the
Advocates and Judges. The Author of this article has developed a most practical
method for Presentation and Video Arguments which will result in distinct
improvement in quality, cost, time and pendency in the existing Justice Delivery
System. This article highlights all the aspects of the said method. In nutshell,
for the most important activity of arguments, it is proposed to employ
pre-recorded Video Presentation by the arguing Advocate on his laptop computer
connected with a monitor placed before the Judge. The said video is termed as
Video Arguments and is submitted in form of a CD as a document in lieu or in
addition to the Written Arguments. This will result in a great facility to the
Judges as the entire Presentation and the Argument can be most accurately
recalled and replayed at any time before or at the time of writing of the
judgment and can be played backward, forward and paused at will. The judgments
will be most accurate calling for lesser appeals, revisions or reviews as the
case may be. The time and cost will also reduce. As a whole the pendency will
come down drastically and that too with greater satisfaction to the litigants. .
Present
Method of Arguments
(1) At
present the Advocates tender their Oral Arguments before the judges. For these
arguments, their preparations are based on the documents, copy of citations,
books containing the citations, knowledge and experience of the Advocates. Some
of the Advocates prepare their arguments by keeping a note of points in brief,
which they elaborate during the arguments.
(2) The
judge listens to these arguments and wherever needed, he makes a note in
writing. The information orally delivered by the advocates is stored in the mind
of the judge. He recalls the said information whenever he dictates or writes the
judgment or order on the said arguments. Some of the Advocates after completion
of the oral arguments, may submit written arguments which may be quite helpful
to the Judge.
(3) Many
arguments may be quite lengthy. Some may involve complex matters of the present
society. In such cases, humanly it may not be possible for the judge to remember
and recall complete arguments accurately. Sometimes due to time gap, the recall
may not be accurate. The retention is between 30% to 70%. All these may have
effect on the quality of the judgments. Thus the justice delivery system may
suffer. Some of the litigants may be compelled to resort to review, revision and
or appeal as the case may be, for no fault of theirs. As a result, the higher
courts will be burdened. Under such facts and circumstances, the litigation may
involve avoidable time, costs, delays and pendency.
(4) Sometimes
after completion of the arguments and before writing of the judgments, the judge
may be transferred. Then the whole process of arguments may be required to be
repeated, thus involving additional time and costs for the litigants for which
he is not responsible.
(5) Sometimes,
the Judge or the Advocates may not have sufficient time to listen to or present
complete arguments and as a result the Justice Delivery System suffers for no
fault of the litigants.
Proposed
Method of Arguments
(6) The
Advocate will prepare his arguments on modern system of presentation
like PowerPoint Presentation in which various points of arguments will be
contained in slides with narration. These points will have links to extracts
from legal books, citations and documents which will also be displayed on screen
when needed. All the slides will be in form of a video with elapsed time shown
by a digital clock which serves as reference for the index. This is termed as
'Video Arguments' and is legally permissible under ' The Information Technology
Act, 2000', 'The Indian Evidence Act, 1872' and 'The Code of Civil Procedure,
1908' The said 'Video Arguments' is transformed to a CD with a label giving the
details of the complete case. The said CD as a document is just like a 'Written
Arguments' A CD costing Rs. 8 can contain information of nearly 1 lac pages and
occupies very small space. Thus the
proposed data storage is not only considerably cheaper than the present system
but so easy to carry and store in court records.
(7) The
arguing Advocate will carry the said CDs and his laptop to the Court Room. He
will also have a monitor (for the Judge) which may be connected to his laptop.
He will play the CD, may pause and explain if needed. In
actual case, two copes of the said CD will be given to the Court, one for the
Court and another for the opposite party. If the Judge does not have time to
view and listen to whole arguments, he may view the CD at the time of writing
the judgment. The biggest advantage is 100% record and 100% recall of the
arguments with facility of pause, forward, backward and replay whenever required
during writing of the judgment.
(8) The
judge will now have the facility of playing the said CD backward, forward, pause
etc. and the entire argument will be available to him in most accurate form
capable of being recalled fully at any time before writing of the judgment. The
Judge need not remember or take down complex matters and can replay whenever he
desires. Thus the recall of entire argument will be most accurate and precise
which is not at all possible in the existing system. Therefore the judgment
writing will be easier and perfect. On account of accurate judgments, there will
be lesser reviews, revisions and appeals and thus pendency will come down. The
complications due to part heard arguments spread over time, transfer of the
judge before completion of the arguments and in the event of long gap between
hearing of the arguments and writing of the judgments.
(9) We
have demonstrated the proposed system to several retired judges and senior
advocates who all have appreciated the same and desired that it should be
implemented as early as possible.
(10) We
have prepared a demonstration CD which is available for
viewing by Judges, Advocates and Litigants who may ring us at M – 9691103689 or
e-mail at our Id ramkishan@drtsolutions.com
or ramkishandrt@gmail.com
Presented
Before an Indian Court for the first time in the country on 10th October '07
(11) The
proposed system has been presented before District
Court, Indore on 10th October
2007 when the said presentation was highly appreciated.
Presented
Before an All India Conference on 4th May '08
(12) The
proposed system was explained and presented before the
All India DRT Conference on 4th May '08 where borrowers, their advocates,
chartered accounts etc. coming from all over the country were presented. They
all appreciated the said 'Video Arguments'.
First
assignment of 'Video Arguments' completed and delivered on 18.09.08 to one of
our Mumbai clients
(13) The
first commercial assignment of the 'Video Arguments' has been completed and
handed over on 18.09.08 to one of our Mumbai clients.
Legal Validation
(14) As
per procedural law contained in CPC, written arguments are permissible after the
arguments.
(15) The
proposed Video Arguments are akin to written arguments and are permissible under
the law being in accordance with Sec. 4 of ‘The Information Technology Act, 2000
reproduced below:-
“ 4.
Legal recognition of electronic records :-
Where any law provides that information on any other matter shall be in writing
or in the typewritten or printed form, then, notwithstanding anything contained
in such law , such requirement shall be deemed to have been satisfied if such
information or matter is -
1
(a) rendered
or made available in an electronic form: and
(b) accessible
so as to be usable for a subsequent reference.
COMMENTS
If any
information or matter is rendered or made available in an electronic form, and
accessible so as to be usable for a subsequent reference, shall be deemed to
have satisfied the requirement of the law which provides that information or any
other matter shall be in writing or in the typewritten form.”
Conclusion
(16) The
above proposed method is already in use in
developed countries past several years. India has achieved a leadership role in
Information Technology. Time has come to use the said technology in Indian Court
Rooms. The Supreme Court of India and the High Courts have already started
moving in this direction. The Judges in the District Courts have been provided
with laptops on 9th July
’07. We have been working on the above mentioned method past several months and
are now ready after close examination, appreciation and recommendation by
several Judges and Senior Advocates.
(17) Recognition
and spread by the reader of this article will expedite
the implementation in
Indian Court Rooms resulting into distinct improvement in quality of justice
delivery system, reduction in cost and time with facility to Judges and
Advocates, which invariably happens by use of better technology. We shall be
glad to have a feedback at M – 9691103689 or or e-mail IDs mentioned above.
(18) We
request the litigants to involve themselves with
proceedings on all dates, get the CD from us in advance, show the same to his
advocates so that if any change is to done by us. Finally prepare 7 days in
advance with their advocates so that the he is fully prepared with the arguments
based on our CD.
DRT Solutions Weekly Mail – 19th Issue dated 19th Sept. ’08
Amended &
Updated on 20.08.16
(1) First assignment of ‘Video Arguments’ completed:-
We are pleased to announce that we have completed the first
assignment of ‘Video Arguments’ for a Mumbai based client in respect of ‘Closure
of Defence’ This is again first time in India. Before dispatching the CD on
19.09.08, we have shown the same to retired Judges and Senior Advocates. They
all appreciated and commented that it will be specifically demanded by the
Advocates and Judges as it offers great facility to them. We have been working
on this development past two years and the final product has been greatly
improved.
(2) ET reports views of Mr. Ram Kishan:-
In the 15th September Mumbai issue of Economic Times,
at page 10, under the caption of ‘Cos face the heat from rising rates, slowdown
– Debt Recovery Tribunal Sees Rise in Number of Cases for Asset Auction’ some of
the facts and comments were based on telephonic discussions with Mr. Ram Kishan.
We highly appreciate the initiative of ET to probe the ground realities.
(4) Why Suits can not be decided in 9 months (in Indian Courts) as in USA:-
In almost all the cases, even complex and exhaustive suits are
decided in 9 months in USA. This has been made possible due to special attention
being paid by the legal community there specifically since 1970. As a result
they have heavily borrowed and inducted Modern Management Techniques and Latest
Technology in Court rooms. All the details and even arguments on any date are
now available on internet.
Coming to Indian Judiciary, Justice V.R. Krishna Iyer at page 133
of his famous book ‘Law, Lawyers and Justice’ rightly wrote that Indian
Judiciary is 200 years behind the developed countries.
On the same page of the above mentioned book, it has been
mentioned that - Says Burger in one of his lectures to lawyers:
“ … England has long since abandoned the idea that robes –
supplemented by wigs – can convert even the best of advocates into universal
experts on all law” [ New York State Bar Journal, February 1983 – Page 10]
It is a sad commentary that the legal community in our country
still has no time to make any systematic efforts even to approach the problems
as was done in USA in 1970. This is the reason, the suits in our country may not
be decided thoroughly well even in 9 years leave alone 9 months.
(5) How to study Judgments:-
During this week, we came across two specific cases when the two
citations viz. (1) AIR 2000 Madhya Pradesh 74 and (2) 2008 AIR SCW 3980 were not
read properly by the senior advocates of our clients. They based their views
only on the Index Notes and carried wrong notions. We would like to advise our
clients that they should read the judgments thoroughly word by word not only
once but several times before arriving at any conclusion about the utility of
the said rulings. We may not expect such approach by the Senior Advocates as
they are extremely busy with their routine work. The DRT litigants will have to
take such initiative in their own interests to help their advocates.
(6) In controversial facts, Writ in High Court is not a correct remedy:-
We are getting many cases where for various matters, writ
petitions are filed in the High Courts. It is observed that in some of these
cases, the bankers file wrong or confusing affidavits. As a result, the
decisions create embarrassing situations. The party is compelled to approach to
the Supreme Court where also in some of the cases, satisfactory results are not
achieved. All these problems arise where there are controversial facts and bank
bureaucracy acts illegally. There is no other way but to avoid approaching
higher courts without settling controversial facts through proper adjudication
in the trial courts.
DRT Solutions Weekly Mail – 18th Issue dated 12th Sept. ’08
Amended &
Updated on 20.08.16
(1) Few Important Mails/Phones received & our comments :-
(a) Mr. Devasahayam of Chennai has sent us the full text of
Madras High Court Judgment which will be quite useful to Borrowers and
Guarantors. The said judgment has been published on our web site vide link
http://drtsolutions.com/MadrasHC.htm
(c) One of our clients from Vijaywada informed that the claim of
the Bank in DRT is likely to be dismissed and in that eventuality what will
happen to their counter-claim. We informed him even after dismissal of the
bank’s claim, the counter-claim will survive.
(d) The factual part of the ‘Video Arguments’ has been sent to
one of our client at Mumbai for his confirmation before preparing the legal
part. This is for the first time in the country we have supplied such ‘Video
Arguments’ to any of our clients. It is needless to mention that such method is
being used in the developed countries for past several years but despite being
permissible under the IT Act 2000, none has developed the same in our country.
(e) One of our clients at Mumbai informed that all the cases
filed by the Co-operative Banks in DRTs under the DRT Act and Securitisation Act
are being stayed on the applications of the Borrowers on the ground of such stay
being declared in the Supreme Court.
(2) Negotiations with CMD of the Bank:-
One of our clients at Indore had discussions
with the CMD of their Bankers. As usual the said CMD behaved like a Govt.
bureaucrat siding and shielding their subordinates. That is why we always advice
our clients not to depend and believe the said ‘Babus, Munshees, Khanjanchies
and Munims’ Instead use the tool of law enshrined in our Constitution which
being one of the best in the world also offers accordingly the best defence.
Side by side all efforts be made to revive and run their units with other source
of financial assistance. The ultimate law favours the industry and not the
bureaucracy. The judicial bureaucracy may also indirectly favour the bankers
but strict use of legal tools will prevail over both the bureaucracies. It is
needless to mention that it is the only trial court where real facts can be
judicially determined and not the higher courts. Utmost hard work by the
borrower duly supported by equal hard work by his trial advocate may bring the
justice.
Another of our another clients at Indore is
being called again and again by the bankers for negotiations. Every time the
bankers are asking to jack up the offer. This is normal method employed by the
bankers to create pressure by postponing the decision, increasing the burden and
settling for highest possible amount.
In both the above situation, we told the
outcomes much in advance.
(3) Damages in Customs Cases:-
One of our clients at Bangalore has referred ten of his cases of
excess custom duties charged by the department. In all the cases, we found that
intentionally huge custom duty was wrongly levied in the beginning and then the
importer is troubled the said high duties and then by delaying the refund. These
are the fit cases of filing damages against the custom department.
(4) Defence of Borrowers, illegalities and Interim Applications:-
We have observed
that there are many preliminary issues (purely legal in character) in the
Securitisation Act and DRT Act which will be in favour of the borrowers. The
best mode of fighting such issues is by way of interim applications.
Similarly until
and unless all the controversial facts have been discovered fully, issues can
not be framed.
The ultimate tool of cross-examination is also not being used,
without which no bank litigation will be complete.
We have observed that all the above crucial trial procedures are
being side tracked by inexperienced trial advocates and as a result, the
borrowers who have already suffered from the bankers suffer due to advocates and
judges. The only course is to pay proper attention to the law and procedure of
law. Our web site provide most exhaustive knowledge to our clients.
DRT Solutions Weekly Mail – 17th Issue dated 5th Sept. ’08
Amended &
Updated on 20.08.16
(1) Few Important Mails/Phones received & our comments :-
(a) The constitutional validity of the
Companies Amendment Act 2002 was under determination of the Supreme Court which
has reserved its judgment since then. At the instance of the SC, the Govt has
now come out with the Companies Amendment Act 2008 which is expected to satisfy
the SC and hence we feel that the long awaited NCLTs will start functioning
within few months. Accordingly all cases pending in BIFR will be transferred to
the NCLTs. We are fully prepared to render advice and guidance on the new Act as
well as the NCLTs.
(b) In respect of one of our Indore clients,
the DRT Jabalpur in its order dated 25.8.08 (full text of the judgment is given
under item no 7 below) has restrained the Bank not to take
any coercive action against the borrower till the appeal under sec 17 of the Securitisation Act is finally decided. Since full claim of loss and damages has
been included in the said appeal, prima facie, there is no debt due. We have
advised the client to follow the procedure and law laid down by the SC for
complete adjudication and such trial will take several years. During such
period, we have further advised them to pay attention to reopen their business.
(c) In case of one of our clients from Mumbai,
a particular AGM of the Bank was troubling them in all possible ways even after
initiating actions under the Securitisation Act and DRT Act. He was out to
destroy the borrower and his business. Under such facts and circumstances, an
exclusive Notice was served on the said AGM under the
166, 167, 202, 211, 385, 409,
418, 463, 464, 466, 468, 471 and 499 read with section 34 of the Indian Penal
Code. Such criminal action will prevent similar officials to harass the
borrowers in future.
(2) Applicability of CPC in DRT:-
As per the DRT Act, the DRTs and DRATs shall not
be bound by the procedure laid down by the CPC (Civil Procedure Code) 1908, but
shall be guided by the principles of natural justice. Under these circumstances,
the DRT has to evolve its own procedure which will neither violate the
principles of natural justice nor the law laid down by the SC and the
Constitution of India. In actual practice, since the DRTs are new, very few
legally valid procedures have been evolved and the same are similar to those in
CPC, the new procedures ultimately will be based on well defined procedures of
CPC 1908. To this extent the CPC is applicable in DRTs.
(3) Difference between Production and Inspection of Documents:-
As per the CPC Order XI, the production of the
documents is at the instance of the Judge whereas the Inspection of the
documents is at the instance of litigants. It is needless to mention that in
bank litigations, all the facts are contained in the documents and all the
documents are in power and possession of the Bank. It is observed that many of
the documents are against the bank and hence the bankers avoid production and
inspection of such documents. Many of the advocates do not understand the
implications of the said documents and hence the trial is allowed to proceed
without any judicial determination of the relevant facts which weakens the case
of the borrowers. That is why we have been educating the borrowers to understand
the importance of such legal aspects and ensure the discovery of the said
documents.
(4) Why DRTs will take more time than Civil Courts:-
The trial in court including that in DRTs has
to be in accordance with law and procedure of law. One of the important SC
judgments is that of Swaran Lata (i.e. AIR 1969 SC 1167, Para 6) which must be
learnt by heart by all the borrowers and guarantors facing trials in DRTs. If
all the provisions of such law and procedure of law are strictly followed, the
trials in DRTs will take more time in civil courts.
(5) Highest Standards set by Our Constitution:-
We are proud to have one of the best
constitution in the world. The said constitution is the basis and foundation of
all our enactments including DRT Act and Securitisation Act. Since our
constitution being one of the best in the world, it requires globally best
advocates and globally best judges using the best technology and management
techniques which being not there will result in long
delays and great dissatisfaction to litigants. Intelligent borrowers will
definitely create such defence using the constitution which will be difficult
for the bankers to face. Those of our clients who have understood these
principles are having upper hand in the bank litigaions.
(6) worldlii and commonlii :-
'Free Access to Law' is the fundamental rights of
citizens rather it is a precondition of any judicial system. The is best
illustrated by the web sites
www.worldlii.org and
www.commonlii.org
(7) An Important Judgment of DRT Jabalpur:-
One of our clients at Indore has sent an
important judgment of DRT Jabalpur in his own case about the urgent application
as the bank was going sale the property in auction. The possession of the
secured assets was taken in Aug 2007 while the notice u/s 13 (2) of the SARFESI
Act (Act for short hereafter) was issued on 20.09.2007 and thereby it was
indicative of gross irregularity and illegality of the Act. The bank converted
the C.C. Hypothecation Limit into Cash Credit Pledge limit unilaterally and
without asking for any consent of the applicants. The restructuring of the loans
was pending before the bank but the institution proceeded with its proceedings
under the provisions of the Act by putting the property in auction sale. The
respondent bank has not yet filed its reply/Written Objection although the
application of the applicants U/s 17(1) of the Act is pending since 31.01.2008.
It was submitted that the disposal of the Written Objection of the applicants
U/s 13(3A) of the Act by the bank was in a mechanical manner and without
application of mind as envisaged in the guidelines of the Mardia chemical’s
case. It was submitted that the Authorized officer of the bank who issued the
notices under section 13(2) & 13(4) of the Act is the same official before whom
the restructuring proposal is pending. It was further submitted that the applicants
suffered loss due to the action taken by the Bank for publishing the recovery
proceeding in the newspaper which has damaged the reputation of the applicants
firm.
The court perused the details of business from
1997 to 2007, proposal for restructuring, bank letter conversion of CCH to CC
Pledge, newspaper paper publication dt. 10.08.2007, notice u/s 13(2) of the Act
dt. 20.09.2007, objection dt 20.11.2007, reply to objection by the bank dt.
29.11.2007 notice u/s 13(4) of the Act dt. 12.12.2007 order dt. 01.08.2008
passed by Hon’ble High Court of Madhya Pradesh bench at Indore in writ petition
no. 4668 of 2008 and all other materials on record. Admittedly, restructuring
of the loans was pending before the bank for consideration. Admittedly the
respondent bank has not yet filed the Written Objection till date. Admittedly,
the Hon’ble High Court of Madhya Pradesh bench at Indore in writ petition no.
4668 of 2008 vide order dt. 01.08.2008 has stayed the auction proceeding of the
secured assets of the applicant upto 03.10.2008.
Since the Hon’ble High Court of Madhya Pradesh,
bench at Indore in writ petition no. 4668 of 2008 has stayed the auction
proceeding of secured assets upto 03.10.2008 so this tribunal is of opinion that
a restraint order deserves to be passed in favour of the applicants directing
the bank not to take any coercive measures against the secured assets of the
applicants until disposal of the main application of the applicant. At the same
time the applicant shall not create any 3rd party interest over the
secured asset in any manner whatsoever and he shall swear an affidavit before
the Registrar or this Tribunal by 03.09.2008 Such an order will suffice the
present purpose and will meet both ends of justice.
That the respondent bank is hereby directed not
to take any coercive measures against the applicants pursuant to the proceedings
initiated under the provisions of SARFFSI Act in any manner whatsoever until
disposal of the application u/s 17(1) of the SARFESI Act of the applicant.
(8) An Important Judgment of Madras High Court:-
Mr. Sundararajan of Madurai has informed based on local news
paper reports about a land mark judgment of Madras High relating to default in
payment in the matter of Rajini vs a private bank. The agonizing way of action
by the bank was exposed to Madras High Court. The message was as to how the
banks and Financial institutions are exploiting the Securitization and DRT acts
by wrongly interpreting all Judicial forums that the public money is misused and
obtained the required directions from the magistrate and also convinced the
Police department that the banks are doing according to Law and thus misleading
to cover up their wrong doings. Mr. Sundararajan recalled the last weekly mail Dt.14.08.08
issue forecasting the awareness as to how the bank wrongly impress the Tribunal
& Court and with the sympathy by mentioning about the public money to get order
in their favour.
The above judgment is related to credit card, default in
payment of cheque of insufficient funds, car loans etc ., The High Court has
stayed 24000 cases which is unprecedented. It is really a big blow to the Banks.
After getting the full text of the said judgment, we shall be
in a position to opine as to how the same can be of any use in DRT and DRAT.
DRT Solutions Weekly Mail – 16th Issue dated 29th August ’08
Amended &
Updated on 19.08.16
(1) Few Important Mails/Phones received & our comments :-
Based on the mails received during this week,
the following items and comments are submitted.
(2) Simultaneous Proceedings under DRT Act and Securitisation Act:-
In case of one of our clients at Mumbai, the
proceedings are going on in two DRTs in respect of Securitisation Act and DRT
Act. We have advised our client to apply for transfer one of the case so that
both proceedings are handled in one DRT only. There are several SC rulings which
lay down that all the related matters must be handled in one court only, with a
view not only to save time and cost, but to avoid any conflicting decision. DRAT
is to be approached for the said transfer to one DRT.
(3) Proceedings under Sec 17 of Securitisation Act:-
As per the law declared by the Supreme Court in
the matter of Mardia Chemicals, the proceedings under Sec. 17 of the SARFAESI
Act 2002 are in-lieu for a civil suit. Further as declared by the SC the
SARFAESI Act is a complete code, it is amply clear that the borrower gets the
first and the last opportunity in DRT to get all his rights and liability
judicially determined. Hence no stone should be left unturned to obtain full and
final adjudication in the said DRT. The litigant borrower should not be under
wrong impression to get any relief by any other proceeding or from any higher
courts like DRAT, High Court or Supreme Court. The higher courts being heavily
overloaded will go only by the version of the DRT even if it is half completed
or wrong.
No one should be misled by the concept that the
Securitisation Act is only for recovery of bank overdues. This could only be
true only in such cases where the bank has done all their duties as per law at
every moment of time right from the sanction of the loan to the stage of
rehabilitation or revival if any. In almost all the cases, the banks are not
doing their part of duties, getting blank and wrong security documents signed,
ignoring duty of care, openly violating RBI Guidelines etc. Under such facts and
circumstances, the loss and damages due to wrong doings of the banks are created
every moment of time and the recovery at such moments get modified and hence
need to be adjudicated accordingly.
Well defined matters must be raised by way of
distinct applications and orders obtain after thorough arguments, written
arguments, review, change in court etc. Perfect trial in all respect on all
dates with proper record of the proceedings is the minimum requirement. Borrower
should not think of getting justice in an easy manner. All odds are against him.
With such approach only, many of our clients are getting success.
Courts including DRTs are for Justice and not a
hurried proceedings only for banks.
In view of above, serious attention needs to be
paid to utilize fully the adjudicative process during Sec 17 of the
Securitisation Act.
(4) Enforceability of Agreements during DRT Litigations :-
In case of one of our clients at Mumbai, the
bank has initiated actions in DRT under DRT Act as well as Securitisation Act.
All the controversies are part of the ongoing litigation. Having not satisfied
with multiple legal actions, the bank has threatened declaring the borrower and
the directors as ‘Willful Defaulter’ which does not fulfill the recovery
objective of the bank and it is just to harass the said borrowers. Such action
has been resisted by way of ‘Injunction Suit’ The bank further addressed a
communication to all the member clearing banks cautioning them not to deal with
the said Borrower. The bank refused to furnish the copy of the said
communication even under the RTI Act. Such highhanded behavior of the Bank is
based on an erroneous assumption that they could do so on account of the
existing agreements. This assumption is totally wrong and misplaced as all such
agreements had already become questionable and void due to numerous violations
which are part of the existing adjudication. Having once approached to court of
law, the bank is debarred to initiate any prejudicial or coercive action causing
any loss and damages to the opposite party.
(5) Negotiations with the Bankers:-
One of our clients at Indore is conducting
negotiations for One Time Settlement with their banker. Effective negotiation
calls for creating position of strength first by dialogue. Such dialogue in
majority of cases are not successful as the present buearacracy in banks is not
much concerned except if they can have any personal gains. With passage of time,
the matter lands in court of law. Position of strength can only be created by
filing counter-claims or damage suits. Perfect pleadings and thorough trial on
every date will augment the said strength. In some cases, few bank officials
start acting with vengeance. Criminal action in such cases will immediately
boost the said strength. Overall it is a mind game and the party with knowledge,
steel nerves and negotiation skills will have the ultimate say.
(6) Insolvency:-
Very useful information is available at page 14
of the Economic Times, Mumbai dated 26th August 2008 under the
caption of ‘Borrowers struggling to repay loans can file for insolvency.’
(7) Weekly Mails - Archive:-
We have created an Archive of all the Weekly
Mails right from the 1st issue in batches of 10 issues. The link for
the said archive is given at the top of this mail.
DRT Solutions Weekly Mail – 15th Issue dated 22nd August
’08
Amended &
Updated on 19.08.16
(1) Few Important Mails/Phones received & our comments :-
(a) In the matter of Willful Defaulter, the
bank has been asked to produce the documents. The trial of the Injunction Suit
has to be carried out thoroughly as per the CPC and the CMD of the Bank must be
impleaded as the necessary party in accordance with the Master Circular issued
by the RBI. The Borrowers facing threat of being declared ‘Willful Defaulter’
must study the RBI Guidelines and Trial Court procedures so that their interests
are fully safe guarded.
(b) DRAT Chennai and DRT Bangalore have
decided not to give copies of the proceedings. We have advised our client to
file a Writ Petition in the High Court. Side by side, the RTI Act must be
invoked to get the copies of the said proceedings.
(c) One of our clients from Yeola, Maharashtra
visited us. He is 75 years old and desired to file a damage suit against a
Co-operative Bank. He has been fighting with the bank since 1987. The said Bank
sold his factory and residential house. We are preparing his damage suit to be
filed as an Indigent Person before the District Judge.
(2) SC to Introduce Audio-recordings of Hearings:-
It is heartening to note that the SC vide News
Item at Page 15 of Times of India, New Delhi dated 20th August ’08
has decided to introduce
a system to audio-record
proceedings and arguments, particularly in the matters in which the hearing goes
on for several days, This will help the judges in cross-checking the arguments
before delivering the judgment, To start with the system will be first
introduced in the courtroom of Chief Justice of India and afterwards it will be
extended to High Courts and the lower courts.
We have mooting this idea past 5 years. We have
already advice our clients to audio record the arguments and send us the clips
for our review and suggestions.
We have also developed a new method of Video
Arguments which was demonstrated for the first time in the country before the
District Judge Indore on 10th Oct 2007.
In fact the theme of the Indore Conference was
Management and Technology in Judiciary with emphasis on practical aspects of DRT,
Securitisation, Personal Guarantee, Industrial Policy, Criminal Law etc.
(3) Grand Success Story of a Young DRT Lawyer from Madurai:-
Mail dated 16.8.08 from Mr. Arun Murugan,
Madurai is given at the end of this Weekly Mail. Complete story in detail as
sent by Mr. Arun Murugan has been published on our web site vide link
http://www.drtsolutions.com/success.htm
(4) First in India–CCTV camera in Police Station:-
Pardeshipura Police Station, Indore is the
first in India to have CCTV cameras installed at various places so that complete
conversations during writing of FIRs, Interrogations during investigations are
completely recorded. The higher police authorities can watch the said recordings
live through internet. In case of complaint or disputes, the said recordings
will be quite useful. As a whole it will improve the working, conduct and
behavior of Police.
(5) No deposit can be demanded by DRT when audited Balance Sheet shows Loss:-
The litigant borrowers must file the audited balance sheet of
their company with detailed remarks. If the said balance sheet shows losses and
proper counter-claim has been files so that there is no debt due, the DRTs or
DRATs can not demand any deposit from the the litigant borrowers.
(6) Continuing cause of action:-
In almost all the cases of Counter-claims or
Damage Suits for the loss and damages suffered by the defendant Borrowers and
Guarantors, the nature of the said loss and damages is continuing in nature and
hence the cause of action is continuing one. Under such facts and circumstances,
the counter-claim or damage suit can be file at any time.
(7) Mail dated 16.08.08 received from Mr. Arun Murugan, Advocate, Madurai:-
From: arun murugan [mailto:arunm_advocate2007@yahoo.co.in]
Sent: Saturday, August 16, 2008 12:36 PM
To: Ramkishan drtsolutions
Subject: mushroom case
DRT Solutions Weekly Mail – 14th Issue dated 15th August
’08
Amended &
Updated on 19.08.16
(1) Few Important Mails/Phones received & our comments :-
(a) One of our clients at Chandigarh who has
filed a Damage Suit of Rs. 1825 crores against a public sector Bank informed
that on 09.08.08, the said Bank has filed its Written Statement. The other
defendants viz a Financial Institution and a State Govt. Undertaking which did
not file their WSs were given last opportunity to file the same by 25.08.08 and
for such delay a cost of Rs. 500 each was imposed.
In the said WS submitted by the Bank, the
averments in the plaint have been generally denied, the material facts have
either been denied, suppressed or misrepresented. The bank has admitted that the
RBI Guidelines are binding. As a whole, the defendant bank does not have proper
understanding of Torts, Contract and Criminal Law.
(b) Mr. Sundararajan from Madurai, has
appreciated our web site stating that it is indeed a ‘Treasure Island’ for those
genuinely interested defendants.
(c) The PowerPoint presentation on the RTI Act
was appreciated by the recipients of the last Weekly Mail.
(2) DR Mechanism of RBI for SMEs:-
(a) In case of one our Indore clients, we found
that the Bank has invoked the Debt Restructure Mechanism prescribed by the RBI
for SMEs. On study of the relevant RBI Guidelines existing since 2005, this is
one of the important action in respect of the viable or potentially viable
units. It would be worthwhile to study the said Guideline and to approach the
banks particularly when there is any likelihood of issue of Notice under the
Securitisation Act. In case Notice under sec. 13 of the Securitisation Act has
been issued, this may also be included in the Representation and Objections
against the said
(b) If the Bank does not consider the said
Representation and Objections with due application of mind as prescribed by the
Supreme Court of India in the matter of Mardia Chemicals, one may file an
Injunction and Declaratory Suit in Civil court just before the bank invokes the
sec 13(4) of the Securitisation Act. The results will definitely be much better
than filing a writ in the High Court.
(3) Sympathy of Court:-
The secured creditors i.e. the Banks in almost all the cases try
to get sympathy of the Courts by mentioning that case involves recovery of
public funds. The borrowers must gather the following facts and keep their
advocates apprised off so that the same are impressed upon the Courts:-
(a)
In case of the units having past performance,
the amount of Interest paid and amount of taxes paid may be calculated and
submitted stating that so much has been gained by the Bank and the Government on
account of the creation and running of the unit.
(b)
The interest paid by the unit is the major
source of earnings of the banks. If the unit does not run, much greater harm
will be done to the public funds of the depositors as they will not get their
interests on the deposits. In fact the banks themselves will not survive as they
will not be able to pay salaries to their employees.
(c)
The hurdles created by the banks must be
described in brief to indicate as to how the banks are stopping their own
earnings and hence are not caring for the so called public funds.
(d)
In case counter-claims or damage suits have
been filed, it must be impressed that such matters must be expedited so that
unnecessary burden of the interest is not caused on the said damages and hence
on the public funds. If such damages are decided early, the banks will also get
their repayment of the alleged dues quickly.
(e)
In addition to above, running of the units help
the public in respect of other factors like employment, generation of wealth,
improvement in living standards, more availability of various useful products,
saving in foreign exchange in imports if applicable, revenue to the government
etc.
(f)
If there is any counter-claim or damage suit and if the said claim of the
borrower is higher than the alleged claim of the bank, there is no debt due and
hence no action for recovery could be initiated.
(g)
The trial advocates handling bank litigations
must understand above factors in detail so that the same are used whenever the
Banks try to obtain sympathy of the Court in respect of so called public funds.
(4) Trial Procedure in DRTs:-
(a) The DRTs are specialized Trial Courts in
respect of Bank Litigations.
(b) The trial invariably must be conducted and
completed perfectly in all respects.
(c) First step in any trial is the pleadings
which must be prepared by a person having mastery of facts and mastery of law.
The pleadings may relate to complete suit or any interim application or
submission before the Court.
(d) Next is the judicial determination of
facts. In respect of bank litigations, all facts are contained in documents and
all the documents are in power and possession of banks. Hence discovery of
documents is the most important step in any suit or proceedings before the DRT.
(e) The above applies to OA, application under
Sec 17 of the Securitisation Act, counter-claim under sec. 19 of the DRT Act,
Damage suit or Injunction Suits in Civil Courts etc. This also applies to even
in respect of any interim application where all the relevant documents must be
discovered first.
(f) The case must not be allowed to proceed
till the above is done.
(g) Next is the framing of issues and
determination Preliminary Issues if any.
(h) Next is the Proof Affidavits which must be
studied thoroughly by a person having mastery of facts and mastery of law in
respect of bank, industry and finance.
(i) Now comes the most important stage of
Cross-examination of Bank Officials including the Chairman of the Bank. Since
the RBI has been laying down specific duties for the Chairman, we have been impleading him in all the cases drafted by us since 2001, his cross-examination
is must. Such cross-examination must be done by a person having mastery of facts
and mastery of law in respect of bank, finance and industry.
(j) The goal of above fundamental procedure is
to get admissions of the bank officials. The litigants have to be sure to
achieve the same whether their advocate agrees or disagrees. The advocate is the
only agent or representative and his stakes are very much limited and hence we
advise all our clients to be very strict otherwise they will lose their case.
Don’t bank upon any remedy or relief in Higher Courts as they will never
interfere in the facts already determined by the DRT or Trial Court (whether
rightly or wrongly) and these courts are heavily overloaded.
(5) Selection of DRT Lawyers:-
Most of our clients are finding difficulties in
getting suitable DRT lawyers. The reasons and suggestions are as under:-
(a)
Since the bank litigation in DRTs require
mastery of facts and mastery of law relating to bank, finance and industry; the
lawyers are interested in such complex litigations.
(b)
The job of a Trial Lawyer requires lot of hard
work. In USA, there is a separate Bar Association of Trial Lawyers. They pay
maximum attention to perfect Trials rather than jumping to Higher Courts. In our
country, on one hand, the trials are neglected and the lawyers try to drag
everything to Higher Courts.
(c)
DRTs are situated in mostly the places having
High Courts. In such places, good trial lawyers are not available.
(d)
In view of above, we advice our clients to go
to nearby places where only trial courts are there. Find out suitable competent
trial lawyer who is interested in emerging field of Bank Litigations. Let him
work hard and acquire mastery of facts and mastery of law relating to bank,
finance and industry. We will provide all help. This is how with passage of
time, the quality of DRT trial will improve and leading judgments will come
which will help everybody.
Drt Solutions Weekly Mail – 13th Issue dated 8th August
’08
Amended &
Updated on 19.08.16
(1) Few Important Mails/Phones received & our comments :-
(a) One of our clients at Indore has filed
appeal under sec 17 of the Securitisation Act desired to file counter-claim
against the Bank. He had already pleaded in the said appeal that they had
suffered huge loss and damages due to wrong doings of the bank and hence we
advised him to file the desired counter-claim stating that ‘Loss and Damages
mentioned in Para No of the SA – Now being submitted after being quantified
as below’ No separate fee need to be paid. This is just to overcome the lacuna
which may be removed when the vires of the Securitisation Act are questioned and
specific provision of the counter-claim is made in this Act as was done by the
Supreme Court of India in the matter of DRT Act at the instance of the writ
filed by the Delhi Bar Association.
(2) In the matter of ‘Willful Defaulter’ in
respect of one of our Mumbai clients, the Civil Court, Dendoshi, Mumbai in its
order dated 06.08.08 has ordered that if the bank has not declared the Borrower
as willful defaulter, they shall not do so without following the RBI Guidelines
till next date of 20.08.08.
This is perhaps first matter in the country
when at our instance, an Injunction Suit has brought such judicial pronouncement
in the matter of ‘Willful Defaulter’ Depending on the reply of the bank, we are
even ready with a notice under Criminal Law to be filed against the bank
officials who are just out to destroy the business of the borrower.
(3) One of our Indore clients desired to know
whether scene (which was video graphed) created by the 20-30 bank officials to
paste bank communication on their premises could be included in the pleadings of
the counter-claim. Such an act amounting to Defamation, Loss in Image &
Reputation, Mental Torture as well as Torts may be pleaded based on documentary
evidence in form of the CD containing the said scene.
In fact we have been advising our clients to
have the handycams and voice recorders ready with them so that instances as
above or the court room proceedings could be recorded and sent to us for
guidance and advice.
(4) One of our Bangalore clients is facing lot
of problems due to indifferent behaviour of the PO of the DRT. We have advised
him to create records of all proceedings in writing, to submit written
arguments, resort to tools like Review, Rereview, Appeal, Change in Court, have
documentary evidence from other litigants so that the same could be used at
proper time by the bodies like Bar Association, Legal Forum of India and
Industries Associations.
(2) Debt Due:-
(a) The lenders are authorized to invoke any Recovery Laws e.g.
DRT Act, Securitisation Act, Land Revenue Acts, SFC Act etc wherever applicable
only when there is ‘Deb Due’.
(b) The secured creditor approaches the Court of Law such as DRT
or Civil Court for recovery of their alleged claim.
(c) The defendant Borrowers and Guarantors must understand that
any effective defence to the said alleged claim is only by pleading higher
amount of ‘Counter-claim including Damages’
(d) It is only when the said Counter-claim is more than the
alleged claim of the creditor, there is no ‘Debt Due’
(e) With above pleadings based on ‘No Debt Due’, the lenders
cannot apply any pressure for any recovery until and unless the said ‘Debt Due’
is decided by the Court of Law including DRT.
(3) Admissions in Balance Sheets:-
(a) Whenever copy of any balance sheet is sent to the secured
creditor or is filed in the Court of Law including DRT, it must be clearly
mentioned by way of ‘Important Note’ that:-
“The loss and damages caused to the borrower by the lender is
much more than the amount lent. Hence the figs of the borrowed amount shown in
this balance sheet after due adjustments with the said loss and damages results
in no ‘Debt Due’, rather the borrower is entitled to recover substantial amount
from the creditor. Under these facts and circumstances, the figures of borrowed
amount in this balance sheet can not be considered as admission, if any, of the
claim of the creditor.”
(b) Whenever any action is initiated by the creditor based on the
alleged admission in the balance sheet, reference can always be made to the
above ‘Important Note’.
(5) Violations of Rehabilitation Schemes or OTS amount to Criminal Offence:-
(a) Any violation of the schemes such as ‘Rehabilitation Scheme’
or ‘One Time Settlement Scheme’ declared by the RBI amount to a Criminal
Offence.
(b) We normally don’t advice initiating any Criminal Action
against the officials of Banks and Financial institutions but when the said bank
officials are found bent upon misusing their powers through coercive Acts like
Securitisation Act, the borrower has no option but to invoke the Criminal Law as
above.
(c) There is no limitation in initiating the Criminal Action as
above.
(d) The civil and criminal actions may be carried on
simultaneously.
(6) Other Important Topics:-
The Weekly Mails have generated lot of interest among the
recipients and we are getting huge no of feedbacks. As a result, we have got a
list of numerous topics to be covered in future Weekly Mails such as:-
(a)
None is above law including the Judges.
(b)
Powerful tools in Trial Courts including DRTs.
(c)
Comments on Pleadings prepared by our Associate
Advocates.
(d)
Choosing a Trial Lawyer.
(e)
Huge Pendency in Indian Courts.
(f)
Location of DRTs and availability of Trial
Lawyers.
(g)
Why active part of Borrower is required in the
bank litigations?
(h)
Why laptop is a must for advocates?
(i)
Video Arguments and Computer Presentation
(j)
Cross examination of bank officials.
(k)
Our web site on Legal Forum of India.
(l)
Follow up actions on Indore Conference.
(m)
Interim applications to be filed in DRTs.
(n)
Dealing with Advocates and Judges.
(o)
How to learn Computer and keep abreast with the
technology.
If you have any topic, you may mail us, we
shall include the same in above list and will try to cover the same in our
regular weekly mails.
DRT Solutions Weekly Mail – 12th Issue dated 1st August
’08
Amended &
Updated on 19.08.16
(1) Few Important Mails/Phones received & our comments :-
(a) One of our associate advocates in Chennai enquired whether we
have won any case of Counter-claim so far. We informed him that the specific
provision of counter-claim was incorporated in DRT Act only in 2000. The cases
in which we have drafted counter-claims in 2001 and thereafter, some of the
cases are still under adjudication as the Bank itself is delaying or in some
cases, the Bank itself has come forward for settlement and such settlements have
been for amounts less than even 5% of the dues claimed by the Bank.
(b) One of our Chandigarh clients visited us on 26th
July when we finalized a damage suit of Rs. 527 crores against the Excise Deptt.
(c) One of our Raipur clients desired to know the impact of
counter-claim on ultimate recovery when the claim of the Bank is decided in DRT
and Damage Suit is pending in Civil Court. The law on the subject is well
settled. The DRT may issue the Recovery Certificate but execution has to wait
till the pending Damage Suit is finally decided in the Civil Court.
(c) Mr. Sundararajan, Madurai informed that in the item (1)(a) in
the last Weekly Mail, the CVC team visited
Thuraiyur Distt. Trichi instead
of Madurai. Accordingly the web site content has been corrected. The error is
regretted and we are thankful to Mr. Sundararajan for being so vigilant and
taking pains to inform us.
(2) Importance of Judicial Determination of Facts:-
It is assumed that Pleadings of the counter-claim or damage suit
have been prepared by agencies who have mastery of facts and mastery of law
relating to Banking, Industries and Finance. The next important stage is
Judicial Determination of Facts. As usual the bankers in their written statement
submit total and evasive denials. Under such facts and circumstance, the
Counter-claimant Borrower is entitled to full determination of facts by way of
discovery of documents. The said borrower must go through the provisions of
Order-11 of CPC. Complete procedure must be scrupulously followed otherwise the
facts will never be judicially determined. DRAT, High Court and Supreme Court
has no powers to determine the facts. You have only the DRT or Civil Court. On
account of huge pendency and extreme pressures for disposal, the said PO DRT or
Judge in the Civil Court tries to avoid the procedure laid down in Order 11 and
if the Borrower is not vigilant and alert, he will become easy victim and will
lose the case completely.
In order to achieve the above, the Borrower must always be
present in the Court. Oral Orders of the Judges must be put down in writing. If
such written records are not taken into account, the tools are Review, Rereview
and Change in Court. The case should never be allowed to proceed till all the
facts are fully determine judicially.
(3) Advocate declines to implead the CMD as necessary party in a suit against
the Bank:-
Chairman and Managing Director of the Bank must be impleaded as
one of the necessary parties in a suit filed against a Bank particularly when
the RBI Guidelines mentions specific duty of the said CMD. In all the
correspondence and the notice sent, CMD has been addressed but when an
Injunction Suit in the matter of ‘Willful Defaulter’ was to be filed, the
Advocate of one of our clients at Mumbai declined to implead the said CMD and
thus the whole litigation weakened right from the inception. We tried our best
to impress upon all concerned to prevail upon the said Advocate but the suit was
filed without impleading the said CMD of the Bank.
The advocate is a professional agent of the litigants and he owes
a professional duty towards his client. It has been held that the professional
like Advocate is liable both in tort and contract to his client for negligent
advice vide
Midland Bank
Trust Co. Ltd. vs Hett Stubbs A. Kemp (1978) 3 All ER 571. Further in
Caparo Industries Plc vs Dickman, it has been held “ In advising the client
who employs him the professional man owes a duty to exercise that standard of
skill and care appropriate to his professional status and will be liable both in
contract and in tort for all losses which his client may suffer by reason of any
breach of that duty.”
We wish good sense will prevail among all the advocates defending
particularly Borrowers and Guarantors in our country where such litigants are
facing all odds in total defiance of justice, equity and good conscience. The
litigants also should take remedial measures when they face situation as above.
(4) Why Bank Litigation is a Simplest type of Trial but needing lot of hard
labour :-
The trial of a Bank case solely depends on documents and hence it
is one of the simplest trials being conducted by the Judiciary. The problem is
that the litigant Borrower does not understand the contents and legalities of
the documents signed by him, he does not have the same in his possession, the
bankers do not provide copies of the same even the do not obey the courts in
providing the said copies of the documents. Hence winning against the Bank
hinges only on the legal skill and hard work of the litigant Borrower as to how
he can secure the copies of all the material documents and have full
understanding of such documents.
One of our Mumbai clients understood our approach and he
implemented our guidance and advice since inception. As a result 4 banks
claiming Rs. 90 crores are at the verge of getting their defence closed for not
furnishing copies of the documents in the matter of damage suit of Rs 1900
crores against the said Bank.
DRT Solutions Weekly Mail – 11th Issue dated 25th July ’08
Amended &
Updated on 19.08.16
(1) Few Important Mails/Phones received & our comments :-
(a) Mr. Sundararajan, Madurai informed another Success Story. In
a case when the proceedings in DRT and DRAT were not helpful, the advocate Mr.
Arun Murugan complained the CVC (Central Vigilance Commission) telegraphically
followed by written communication. The CVC team visited Thuraiyur Distt. Trichi, investigated
the matter and found the bank of committing several wrong doings. The bank
officials are highly upset and the proceedings in DRT will also take a new
turn..
(b) In the matter of ‘Willful Defaulter’, an important matter
regarding impleadment of the CMD of the Bank as a necessary party was raised by
one of our Mumbai clients. This matter is specifically given and highlighted in
Serial No (2) below.
(2) Chairman and MD of Bank is a Necessary Party in Bank Litigations:-
An Injunction Suit against a Public Sector Bank was drafted by us
for a Mumbai client. It was informed that their advocate was not agreeing to
include the CMD of the Bank in the list of Defendants. We emphasized that in
this particular case, on account of duty prescribed in the Master Circular of
RBI, the CMD of the Bank is a necessary party and hence he has to be given full
opportunity right from the inception otherwise our case will have a major flaw
and weakness which will be very difficult to correct later on. In our view which
has been highlighted on our web site since 2001, in all bank litigations, the
CMD of the Bank must be impleaded as defendant as there are several RBI
Guidelines since 1976 which prescribe specific duties for the said CMD.
(5) Strategy for fighting against Securitisation Act:-
(a) The moment one gets notice under Sec. 13, he must prepare his
Representation and objections to the Bank thoroughly and in detail. All aspects
of accounts must be covered as we have found in almost all the cases, the bank
accounts are defective. The tendency of bank officials is to take the entries on
higher side or include such expenses which are not permissible. A single wrong
entry will make the claim defective and hence the notice may be held illegal on
its count.
(b) The determination of NPA must be questioned as we have found
that almost in all the cases, the bank officials make mistake in this area, they
do not have proper internal mechanism. They do not follow the principles of
natural justice and such violations will result in the notice being held
illegal.
(c) The determination of ‘Debt Due’ is most important aspect. In
almost all the cases, the loss and damages caused due to wrong doings of the
bank are more than the alleged claim of the bank.
(d) The application under Sec. 17 is a complete suit as held by
the Supreme Court of India in the matter of Mardia Chemicals and hence it must
be fought with all established provisions of law under CPC. All the borrowers
and guarantors facing action under Securitisation Act must understand this
particular aspect with all seriousness.
(6) Time Management for Advocates:-
Modern human beings are fortunate to get everything at doorstep
or nearby. E-mails, Internet and mobile phones have changed the concepts of
distance and availability. Modern man can achieve in few minutes for what he was
to spend life time. Hence Time Management has become extremely important. We ask
our associate advocates to adopt the following to the extent possible:-
(a)
Carry your laptops to court. Whenever you get
free time, you may work on your assignments.
(b)
We have provided an audio CD having complete
conference in audio form in MP3. You may load the same on a miniature MP3 Player
(1 GB Capacity) You may listen to the conference during travel, morning/evening
walk, free time, waiting time etc.
(c)
Use voice recorder wherever necessary. The
voice files may be stored in the respective folders for future reference. Lot of
written material can be reduced to audio for easy recall, revision and
reference. All the mails needing long reply are sent in voice form by us
avoiding the steno or typing time.
(d)
If you need any information, instead of asking
someone, use internet first. You will easily get lot of useful information.
Internet is library of 600 crore pages with addition of lacs of pages every
minute.
(e)
Use of better technology will greatly improve
time management. As an example, even an illiterate person traveling in an
airplane will have much higher speed of travel compared with a Ph.D. traveling
in a bullock cart.
(f)
Efficiency of body and mind is essential for
efficient time management. Hence you must pay adequate attention to Pranayam,
Asan, adequate sunlight and healthy foods like sprouted beans, fruits, salads
and milk as well as good home and family atmosphere.
(g)
Other usual time management principles like
simultaneous activities and advance planning will improve the overall time
management.
