DRT Legal Solutions
(Debts Recovery Tribunal Legal Solutions) is an India based
Law Firm specializing in DRT, Securitisation, NCLT, Borrowers and Guarantors Solutions in Debts Recovery Tribunals,
Pioneers in Counter-claims and Damage Suits based on Law of Torts and Law of Damages
Phones (India) - Mobile - +91-930-2103689, Off. & Res.- +91-731-4049358 and +91-731-3290201
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Drt Solutions Weekly Mail – 20th Issue dated 26th Sept. ’08
(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 The said details are available in DVD No D-013 pertaining to the said conference.
(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.
(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 – 9302103689
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 – 9302103689 or e-mail at our Id email@example.com or firstname.lastname@example.org
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' The complete video record of the said presentation in the conference is available in DVD No D-013.
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.
(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 -
(a) rendered or made available in an electronic form: and
(b) accessible so as to be usable for a subsequent reference.
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.”
(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 – 9302103689 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
(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. We have applied for the patent and at proper time we shall demonstrate the same before the Chief Justice, Supreme Court of India. Latest Demo CD will be released within a fortnight.
(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.
(3) Article of Mr. Sharma on Overriding effects of Securitisation Act:-
We are pleased to inform that Mr. N.K. Sharma, Dy. G.M. (Law) has recently written an Article titled ‘Securitisation Act, 2002 to Oerride Other Laws by virtue of Section 35 of the Act’ This article is highly useful to DRT Litigants and Advocates. This is just for information that the said article has been approved by the Editorial advisory Board for its publication in Chartered Secretary and it will be published in one of the future issues of the journal. We congratulate Mr. Sharma for coming out with such well researched articles on the provisions of DRT Act and Securitisation Act.
(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.
(7) News published on our web site:-
“Important News - DVDs and Audio CD of the Indore Conference - Goldmine of Information for Borrowers and Guarantors and their Advocates in DRTs :- The complete video and audio recording of the entire DRT Conference at Indore (about 12 hours) is available in form of a set of 5 DVDs and 1 CD. These DVDs and CD are gold mine of information for the defence of Borrowers and Guarantors and their Advocates in DRTs. The topics covered are (1) Securitisation Act, (2) DRT Act, (3) Directors' Personal Guarantee, (4) Court Craft in DRTs, (5) FIR and practical aspects of Criminal Law, (6) Video Arguments, etc. and (7) Important Questions and Answers on all these topics. First DVD gives in PowerPoint Presentation the synopsis of complete conference as well as that of all the 4 DVDs. LCD clock has been used for indexing of the complete conference. Such indexing has been done for the first time in India and it enables you to index the complete conference recordings of 12 hours. One CD contains MP3 audio record of complete conference. The set of 5 DVDs and CD are available at the cost to Rs. 800=00 only. This is quite cheap compared with the cost incurred by the participants for traveling to and fro Indore and staying there for 2 days apart from Conference Registration charges of Rs. 2500=00 per participants. The persons desirous of purchasing the said DVDs may deposit local cheque or cash of Rs. 800=00 in ICICI Bank account no 091605000353 and communicate their postal address through e-mail to us. The dispatch will be made within a fortnight.”
Drt Solutions Weekly Mail – 18th Issue dated 12th Sept. ’08
(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 and DVDs provide most exhaustive knowledge to our clients.
Drt Solutions Weekly Mail – 17th Issue dated 5th Sept. ’08
(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. These aspects have been covered in detail in the DVDs of the Indore conference.
(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 :-
(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 o 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
(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 beauracracy 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.
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
(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. Complete Video and Audio recordings of the Conference are available in 4 DVDs and a CD.
(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:-
Drt Solutions Weekly Mail – 14th Issue dated 15th August ’08
(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.
(e) It is needless to mention that all the above aspects have been covered in detail in the DVDs of Indore Conference. The said DVDs must be viewed again and again by the clients and their trial advocates if one wishes to win against the banks. The borrowers and guarantors have no other short cuts.
Drt Solutions Weekly Mail – 13th Issue dated 8th August ’08
(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.
(b) All the above aspects have been thoroughly dealt with by Mr. B.S. Malik in DVD-014 & Audio CD-015 of the DRT Conference held in Indore.
(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’.
(4) RBI Circulars have force of Law:-
This matter has been thoroughly dealt with by Mr. Malik in DVD No – 014 with several Supreme Court citations. In fact Mr. Malik has thrown sufficient light on ‘What is Law’ in the said DVD.
(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. This matter along with the various provisions of Criminal Law in IPC (Indian Penal Code, 1860) has been thoroughly described by Mr. Malik in the DVD No – 014 along with important Supreme Court citations.
(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.
(e) The above subject has been dealt in detail by Mr. Malik in DVD No – D-014 and by Mr. R.K. Shukla in DVD Nos D-012 and 014.
(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
(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.
This matter has been completely dealt with in detail with Supreme Court Judgment and analysis in DVD No – 013 of the Indore Conference.
(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.
The above case was discussed in the Indore Conference and the DVD Nos – 012 and 013 have dealt all the aspects of the issues involved in the above matter.
(5) Playing DVDs on Laptop:-
Mr. Prakash Rohra, one of our Mumbai clients at Mumbai informed that audio level in the DVDs needs to be boosted as in certain laptops, the sound level is low. There is o difficulty in playing the said DVDs using external speakers or on TV using DVD Player. Even on MP3 player, the audio level is quite OK. Even then we have decided to edit all the DVDs and CD so that audio level is sufficiently boosted. We are thankful to Mr. Prakash Rohra for such valuable feedback.
Drt Solutions Weekly Mail – 11th Issue dated 25th July ’08
(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.
(c) The DVDs and Audio CD of the Indore Conference are being appreciated by the recipients. They are being shown to fellow DRT litigants and their Advocates and accordingly we are getting huge response from the Bank Victims and their Advocates. Their queries are being replied giving reference of Time Index in DVDs and Audio CD.
(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.
(3) RBI Guidelines, Rehabilitation Scheme, One Time Settlement Schemes, all have force of Law:-
(a) On this matter we have drawn attention to the Talk by Mr. Malik, Advocate, Supreme Court of India on ‘Industrial Policy – Legal Aspects’ wherein Several Rulings have been cited by Mr. Malik including those declaring that RBI Guidelines have force of law. You may find the same at the following time index:-
(a) DVD No – D-014 at 15:26:50
(b) Audio CD - C-015, Clip No 3 at 13:20.
(b) The said Talk by Mr. Malik will be extremely useful to everybody facing bank litigations in DRT.
(4) Criminal Law applied to Bankers:-
Since the bankers have started applying pressures and harassing borrowers and guarantors by indiscriminate misuse of the Securitisation Act, we have no option but use the provisions of existing Criminal Law against them. This matte has been dealt by Mr. Malik in his Talk at the following time Index:-
(a) DVD No – D-014 at 15:29:16
(b) Audio CD – C-015 Clip No 3 at 15.08
All the useful provisions of IPC, 1860 relating to the wrong doings of the banks have been fully explained at above location in the said Talk by Mr. Malik. The DVD Nos D- 012 and D-014 also contain the talk by Mr. R.K. Shukla, a criminal lawyer, Indore during question/answer session on ‘FIR and Procedure in Criminal Law’
(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 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.
(e) The above has been thoroughly been discussed in DVD No D-012 by Mr. BK. Dubey in his talk ‘Securitisation Act – Practical Aspects’
(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.
DRT Legal Solutions
Attorneys at Law of Torts, Injury and IPR Claims
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Popularity of our web site :- The key word for search of our website is 'drt' or any phrase commencing with 'drt' We are on the top in Google Search for 'drt' among 28,60,000 results globally. In most of the search engines like yahoo, msn, google, excite, altavista, mamma, alexa etc., in the categories DRT Cases, DRT Bank Cases, DRT Legal, DRT Matters, DRT Home Page, DRT Court, DRT Solutions, DRT News, DRT India, DRT Supreme Court of India, DRT Lawyer, DRT Advocate, DRT Borrowers, DRT Guarantors, DRT Mumbai, DRT Delhi, DRT Jabalpur, Securitisation act, Debt Recovery Tribunal, BIFR, NCLT, ARCIL i.e. Asset Reconstruction Company (India) Limited,sec. 138 of NI Act relating to dishonour of cheques, Legal BPO, offshore BPO, Ram Kishan, Anand Ahuja etc. our site is placed at top positions. To verify, you may visit www.yahoo.com, www.msn.com, www.rediff.com, www.indiatimes.com, www.altavista.com, www.google.com, www.excite.com, www.hotbot.com, www.123india.com, www.aol.com, etc. Our reference appears in www.economictimes.com, www.amazon.com, www.financialexpress.com, www.lawcrawler.com, www.findlaw.com, www.law.com, www.supremecourtofindia.com, www.supremecourtonline.com, We have microsoft certified experienced staff in our IT deptt for immediate update of this site. They are uptodate with latest content of www.microsoft.com,
(2) We have created a separate web site www.usindolegal.com which deals exclusively with our US joint venture enterprise for activities like BPO, legal BPO, DRT etc. This site has started appearing in the search results of Google, Mamma, Alexa and Yahoo.
Application of Law of Torts in claiming Damages from Municipal Corporations for demolition of structures, closure of shops etc:- In many parts of the country, the Municipal Corporations are demolishing structures like shops and houses which existed for number of years. The shops existing for number of years are proposed to be shut down. The affected persons should claim Damages under the Law of Torts, which would be substantial. It is learnt that in Delhi itself about 5 lac shops are to be closed down and about 25 lac persons would be out of jobs. All these persons should file damage suits in the civil court. Since the damages would be substantial, the suits may be filed as Indigent Persons. Since the damages would attract interest, the usual delay by the civil courts will not affect the final outcome. The affected shop owners may discuss the details with us on phone.
Our Articles for Borrowers and Guarantors:- Our articles on DRT matters have been published in the Financial Express. The All India Manufacturers Organisation in its famous web site www.aimoindia.org has reproduced copies of our four articles. These original articles can be searched in the archive of the Financial Express in its web site www.financialexpress.com Two of these articles have been reproduced in other pages of this web site.
Useful link www.WorldVideoBusiness.com :- WorldVideoBusiness-WVB® is a business to business e-marketplace source of international trade leads, and tender opportunities from companies and government organizations around the globe.
About Us in Brief :- (1) We specialize in DRT (Debt Recovery Tribunal) and NCLT (National Company Law Tribunal) matters. As a whole you may approach us for all DRT Problems and Solutions as well as matters connected with ARCIL i.e. Asset Reconstruction Company (India) Limited, We have a Joint Venture with an America based law firm for various activities like BPO, legal BPO and DRT. The details of the said American firm and the joint venture may be seen at the page - Our US Joint Venture with Anand Ahuja Associates or in www.usindolegal.com (2) For your all problems including those in DRT, please phone us or send e-mail. Please give your contact details along with your problems in brief. As a whole you may approach us for all DRT Problems and Solutions. (2) With our Legal Opinion, you need not worry about the Securitisation Act or other DRT matters or NCLT. Please visit the page Products & Services and Frequently Asked Questions (3) On account of our expertise in the Law of Torts and Banking and experience past 15 years, we can help you to submit suitable defence with winning strategy in DRT cases, Securitisation Act, Guarantors' defence etc. (4) We need only copies of all available documents to render our expert 'Legal Opinion' which will be quite useful and valuable to you particularly in DRT i.e. Debt recovery Tribunal. (5) We have also handled assignments for preparation of damage claims against Electricity Boards, Insurance Companies, Municipal Corporations etc. all on the basis of the Law of Torts. (6) The DRT counterclaims is to be prepared well in advance so that it could be raised at proper time in DRT or other forum to safeguard the securities and assets. (7) Several DRT counterclaims drafted by us are being handled by different advocates at DRT Mumbai, DRT Delhi, DRT Jabalpur etc. Thus DRT advocates are available in these cities. Cases in other Debt Recovery Tribunals are under process. (8) This site is updated monthly mostly on every first Monday of the month or for urgent release on any day with latest material. (9) For further details about us, please visit the page About Us-DRT Solutions As a whole you may approach us for all DRT Problems and Solutions. We hail from the place to which Maharishi Mahesh Yogi and Acharya Rajnish belong and hence this site is dedicated to them.
Our this web site is dedicated to Yoga Rishi Baba Ramdev Ji Maharaj:- Our this web site is respectfully dedicated to Yoga Rishi Baba Ramdev Ji Maharaj whose method of Pranayam has cured even incurable diseases and thus has revolutionized modern medical science. For further details please visit our special page by clicking here Baba Ramdev Ji Maharaj, Yoga Guru, Cure for All Diseases, Medical Science Revolution
Site also dedicated to:- (1) Swami Ramdevji, Acharya Balkishan and their Guru Pradumn Maharaj.
We regularly practice TM and SCI of Maharishi Mahesh Yogi. We also regularly practice Hath Yoga including Pranayam based on Baba Ramdev Ji Maharaj. We daily watch his global TV program on Astha Channel from 05:30 AM to 8AM and 8PM to 9PM Indian Standards Time. On Sanskar channel, we daily view the discourse of Pradumn Maharaj from 4 AM to 5:30 AM. Many chronic diseases such as Cancer, Parkinsons' disease, Polio, Asthma, Hypertension, diabetes etc. have been cured by the said method of Pranayam which can be learnt even by watching his program on TV. Since 30th March '06, we have started practicing Sun Gazing as prescribed by HRM.
(3) Shri Satyanarayan Morya alias 'Babaji' for his praiseworthy service to our nation. Please visit his site www.artistbaba.com
Disclaimer:- We have no branch or setup other than at Indore. It is observed that some persons are using name of our firm as well as name of our web site. We have not given any such authority to anyone to do so. Under such facts and circumstances, if anybody suffers any loss, we shall not be responsible. If such instance comes to notice of someone, we may kindly be informed.
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