DRT Solutions Weekly Mail – 150th Issue dated 25th March ’11

All Weekly mails right from 1^st Issue to latest, click links above

(1) Before declaring NPAs, Bankers have numerous duties to perform including rehabilitation not only once but multiple times – Important Information for Borrowers and their advocates 

Mr. Radhakrishnan, our Associate and Banking Expert has drawn attention to the following important RBI Guidelines and circulars which will be highly useful to Borrowers and their Advocates. These need to be studied and important aspects included in the ‘Representation and Objections’ to notice u/s 13 of the Securitisation Act as well as in the application u/s 17 of the said Act:-

(a)     Even before the prudential norms to declare accounts as NPA was brought by RBI to be implemented from 31^st March 2004, RBI issued a circular DBS.CO.OSMOS/B.C./ 4/ 33.04.006 / 2002-2003 dated September 12, 2002 on “Guidelines on preventing slippage of NPA accounts” based on a study on preventing slippage of NPA accounts, addressed to The chairman/ Managing Director/Chief Executive Officer – All Commercial Banks (Excluding RRBs) which means it is applicable to all commercial banks irrespective of whether they are Indian banks or foreign banks or multi state co-operative banks. Since the circular cited now is issued previous to the circular issued for declaration of NPA, the guidelines as prescribed in the aforesaid circular has to be implemented first before declaring an account as NPA

(b)     RBI Master circular DBOD No.BP.BC.10/21.04.048/ 2004-05 dated July 17, 2004 where in prudential norms are given. As per the said circular of RBI, mere irregularity in the account cannot make it a Non Performing Asset. It depends upon the nature of irregularity.

(c)     RBI circularRPCD.PLNFS.BC.No.31/06.02.31/2005-2006 dated August 19, 2005 highlights the “Policy Package for Stepping up Credit to Small and Medium Enterprises. - Further RBI circular RPCD.SME & NFS.BC.No.9/06.02.31/ 2010-11 dated July 1, 2010 under lending to Micro, Small & Medium Enterprises (MSME) Sector among other things states about  Debt Restructuring Mechanism for Micro Small and Medium Enterprises.

(d)     That as per Government of India policy and RBI guidelines and directives, it is apparent that an account can be classified as NPA only when all the means of making the account performing which includes repeated rehabilitation fail to produce the desired result and then and then only the legal proceedings under Securitization Act 2002 can be invoked and proceedings initiated by issuing the notice u/s 13(2) of the said Act.

(2) Useful SC judgment – ‘Kanaiyalal Lalchand Sachdev vs State of Maharashtra’ decided on 07.02.11   

The highlights of above ruling are as under:-

(a)    Actions taken by the secured creditor u/s 13(4) (e.g.  notice of possession) are open to scrutiny u/s 17. Such actions can not only be set aside but even status quo ante can be restored by the DRTs.

(b)    Action u/s 14 constitutes an action taken after stage of section 13(4) and same would fall within the ambit of of sec. 17 of the Act.

(c)    Before filing any writ under Art 226 of the Constitution, the following should be considered whether:-

(i)                  adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;

(ii)                the petition reveals all material facts;

(iii)              The petitioner has any alternative or effective remedy for the resolution of the dispute;

(iv)              person invoking jurisdiction is guilty of unexplained delay and laches;

(v)                ex facie barred by any laws of limitation;

(vi)              grant of relief is against public policy or barred by any valid law; and host of other factors.

Our Comments   

We have been all along voicing our guidance and advice on the above lines and the same are reiterated as under:-

(a)    In some cases, the bankers are jumping to initiate action u/s 14. Hence we have been advising for filing caveat before the CMM or DM to extend an opportunity for hearing. We can also file an application u/s 17 to grant stay against the possible order by the said Magistrate.

(b)    In those case were an application u/s 17 is pending before DRT and the banks proceed with filing an application u/s 14, an stay application may be moved before the DRT.

(c)    We have been advising for including loss and damages in the application u/s 17 and in almost all the cases, since the said loss and damages are much more than the claim of the bank, there is ‘No Debt’ due. Hence no recovery action can be implemented till the said application u/s 17 if finally and fully decided with due process of law.

(d)    The inclusion of the said loss and damages will prevent any objection by the bank under O-2 R-2 later on. Further any objection to transfer the said loss and damages to civil court not disturb the state of ‘No Debt’ due till the civil court finally decides the same.

(e)    Since as per Mardia Chemicals, the said application u/s 17 is akin to a civil suit, it has to be tried as such with complete adjudication e.g. discovery of documents, oral evidence etc.

(f)      The outcome of all above will be time taken similar or more than that in civil court earlier to formation of DRTs. This is so as the ultimate goal of justice will involve time more so when there are already more than 3 crores cases pending and the clearance of pendency will require 320 years. The only solution is more law abiding nature of the bank bureaucracy, better management and technology in DRTs etc.

(g)    In case at any stage, filing of writ petition is contemplated, all the points mentioned in the above judgment be examined before filing of the said petition. In fact there will be rare occasion when the High Court should be approached. 

DRT Solutions Weekly Mail – 149th Issue dated 18th March ’11

(2) SC says - Every Procedure is permitted to the Court for doing Justice unless expressly prohibited  

The following reference of very useful SC judgment has been provided to us by Mr. N.K. Sharma, our associate and ex-GM (Law) :-

“Recently, hon’ble Supreme Court in RAJENDRA PRASAD GUPTA V. PRAKASH CHANDRA ver MISHRA & ORS.{(2011) 2 SCC 705; Civil Appeal No(s). 984 of 2006-Decided on 12-01-2011} has held as follows (in para 2).  

“the Code of Civil Procedure gives inherent powers to the court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted. “

DRT Solutions Weekly Mail – 148th Issue dated 11th March ’11

(1) Judgments useful / favorable to Borrowers   

The Litigants are requested to study the various digests in the libraries as well at the internet and whenever any judgement is found useful / favourable to the Borrowers, a brief reference as in the following cases may be mailed to us. The same will be published in the weekly mails. We shall also open a separate web page which will contain at one place all the information contained in the weekly mails.

One can get full text of these judgments from libraries, digests, internet etc. by searching the names of the High Court, date of the judgments and names of the parties. Whosoever finds the judgments may inform us the reference so that the same is incorporated in the said web page. The multiple references will help others.

(2) Recovery Agents and Enforcement Agents  - these required to know not only basic principles of law but must be familiar with those governing possession and sale of immovable assets  

A comprehensive analysis on the above has been given by the Andhra Pradesh High Court (DB) in the matter of Badugu Vijayalakshmi vs State Bank of India decided on 31.12.09 vide citation 2011 (1) Bankers’ Journal 192. Court disallowed the agent’s claim of Rs. 1,90,000/- being exorbitant and permitted only Rs. 15,000/-

DRT Solutions Weekly Mail – 147th Issue dated 4th March ’11

(1) Links for all Weekly Mails given on every page of our web site www.drtsolutions.com  

Our weekly mails have become quite popular and all the weekly mails including the old ones are being read by the visitors. There have been  complains about variety of errors in the links. To obviate such problems, we have placed all the links on each page of the web site. Whenever one desires to visit the old weekly mail, he just should go to the top of the page where he is or any page of the web site, he may click the links there for the particular group of the weekly mails.  

Despite above, if there is any further problem, please inform to us for remedial measures. 

(2) Judgments Useful / Favorable to Borrowers  

During past 6 months or so, there has been spate of judgments from all courts in the country from DRTs, DRATs, High Courts and Supreme Court, which are useful and or favorable to Borrowers and Guarantors. Such judgments are published in various Digests and Journals. Hence we advise the Borrowers and Visitors of our web site for the following:-

(a)    Please go through the various publications such as Banking Digests and Journals which may be available with the Court Libraries, Advocates, Law Book Sellers as well as on Internet. Where ever such judgments are found, please make a summary and along with citation, mail to us. We shall publish the same in weekly mail as well as on a separate web page devoted for this purpose.

(b)    If any litigant in DRTs find such judgments in DRTs, the same may also be mailed to us as the DRT judgments are not published anywhere.

(c)    This item may please be spread among all concerned litigants as well as their advocates so that a very good resource for such judgments is created. It will be very much useful only to the existing litigants but for the future ones as they will get ready made reference.

(d)    As an example, Mr. B.K. Dubey, Advocate and our Associate has mailed us the following useful judgment of the Supreme Court:- 

“2010 STPL(Web) 43 SC

[2010(1) SCALE 553 = 2010 AIR(SCW) 3966]

SUPREME COURT OF INDIA

(DALVEER BHANDARI & A.K. PATNAIK, JJ.) 

MARUTHI AND ORS.                                                                                    Appellant(s) 

VERSUS 

STATE OF KARNATAKA                                                                          Respondent(s)

Criminal Appeal No.52 of 2010 (Arising out of SLP(Crl.) No.5197 of 2009)-Decided on 08-01-2010.

Practice and Procedure – Appeal - Facts and questions of law not properly appreciated 

ORDER

1. Leave granted.

2. Appellant Nos.1 to 5 were tried for the commission of offences punishable under Sections 147, 148, 341, 504, 506, 324, 326 read with Section 149 of the Indian Penal Code (I.P.C.).

3. The Trial Court did not find the appellants guilty of the aforesaid offences and hence they were acquitted. The High Court, however, by the impugned judgment reversed the order of acquittal and convicted all the appellants for commission of offence punishable under Section 326 of the I.P.C. and sentenced them to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.5,000/- each and simple imprisonment for two months for default in payment of fine.

4. The appellants were also convicted for commission of offence punishable under Section 324 of the I.P.C. and sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.5,000/- each and simple imprisonment for two months for default in payment of fine. The sentences, however, were to run concurrently. The appellants have been given benefit of set off under Section 428 of Cr.P.C. by the High Court. PW-4 Balaji, who sustained injuries on his head and back, was directed to be paid compensation of Rs.25,000/-.

5. We have heard the learned counsel for the parties. Looking to the facts and circumstances of this case, we are clearly of the opinion that the High Court being the appellate Court in this case, has not properly appreciated the facts and questions of law involved in this case. The impugned judgment, therefore, cannot be sustained and is accordingly set aside.

6. The case is remitted to the High Court for deciding the criminal appeal afresh after hearing the parties.

7. The appellants have been released on bail granted by this Court and they shall continue to be on bail till the disposal of the criminal appeal by the High Court. This case relates to the incident which occurred in 1998. Therefore, we request the High Court to dispose of the criminal appeal as expeditiously as possible.

8. The appeal is disposed of accordingly. 

Head note: Duty of the Appellate court-to appreciate both the facts and the law before delivering the judgment/order-non compliance-remand for hearing afresh. 

DRT Solutions Weekly Mail – 146th Issue dated 25th February ’11

(1) Lack of Management & Technology in Indian Judicial System – Greatest Cause of Huge Pendency & Utterly Low Efficiency

We have prepared an Article on the above topic and the same is given at the end of this weekly issue. This also has been published on a separate page of our web site www.drtsolutions.com Your comments and suggestions are invited.

(2) Tardy Approach of Government towards Judicial Reforms

A news item contained in the link below is reproduced 
http://timesofindia.indiatimes.com/home/opinion/edit-page/Step-On-It/articleshow/7549722.cms#ixzz1Em3DCx7h

The Centre's approach to judicial reforms leaves a lot to be desired. Notwithstanding the plethora of promising ideas suggested in recent times, movement on removing judicial bottlenecks has been excruciatingly slow. Statistics recently released by the Supreme Court provide grim reading. 

The number of pending cases in high courts stands at a staggering 41,83,731. Subordinate courts fare worse: the backlog increased from 2.67 crore cases in March 2009 to 2.78 crore in June 2010. The trend is unlikely to reverse anytime soon. 

In this context, it is inexplicable why, despite disposing of over 60 lakh cases since 2001, India's 1,562 fast track courts now face an uncertain future. Union law minister Veerappa Moily has indicated the Centre's reluctance to continue funding them, the logic being that within three years all courts in the country would be on fast-track mode. 

But, given tardiness in correcting structural anomalies till now, there's little guarantee this deadline will be kept. Consider the issue of massive vacancies in the judiciary. As of October 2010, high courts had a shortfall of 287 judges. Subordinate courts recorded a deficit of 3,070 judges in June last. Both figures are rising. Yet little has been done. 

The net result is a pathetic judge-to-population ratio of 10.5 judges per million people - the lowest in the world. The law commission recommends the ratio be around 107. Pressed to address these problems, the law ministry's response has merely been to throw out more ideas. 

There's long been talk of setting up a national judicial service along the lines of the IAS to attract new talent to the judiciary. A national litigation policy has been announced that is supposed to see voluminous government litigation cut down by a third. Exclusive courts to dispose of commercial cases, revision of archaic laws, mobile courts in rural areas and the Judicial Standards and Accountability Bill have all been on the anvil for a while now. 

Blaming disruptions in Parliament for holding up the judiciary-related Bill is no excuse. Deficiencies such as vacancies mount because the authorities sit on appointments. Meanwhile, massive delay - running into decades in some cases - in dispensation of justice means the system largely works just for the privileged, since the less well-off find it hard to pursue protracted and costly litigation. 

Yet that a huge number of cases are filed each year bears testimony to the faith of people across the social board in the judiciary. Indeed, the courts being a vital pillar of democracy, the status quo cannot continue. We must speed up judicial processes, bring in institutional transparency while addressing the issue of corruption. Reform needs expediting, starting now.

Lack of Management & Technology in Indian Judicial System – Greatest Cause of Huge Pendency & Utterly Low Efficiency

-        Ram Kishan

M - 09691103689

www.drtsolutions.com

We adopted the Judicial System established by the British Rulers meant for governing over an alien country and hence obviously not suited for a democratic setup or even their own country.

We created so called a ‘World Class Constitution’ which was based on inputs from the various constitutions of the world. It was our lack of management that on one hand we took self pride that we have a created a world class constitution but did not do anything to create world class courts, world class advocates, world class judges and world class judicial system. We left the court system in lurch to continue on their own. The attitudes of most of the judges, advocates, their staff, procedures and dealings with the litigants continued in the same manner as in British Days. As per the Constitution, the Public should have been respected as the Master, Customer or the Client but the dealings are not much different than those in British Days. On one hand the Judges and Advocates are using most modern TVs, Cars, Air-conditioners etc. but in court room they are not willing to go beyond 500 years old technology of paper and oral submissions.

On account of above, during last 60 years, there has been ever increasing pendency from year to year and now it has crossed 3 crore pending cases and is going up day by day. This pendency is not created all of a sudden. We were voicing our concern every year but no substantial measures have been taken to arrest the ever growing pendency. One of the sitting Judges of Andhra Pradesh High Court, Justice V.V. Rao has said that it will take 320 years to clear the pendency (vide news item dated 07.03.10) Thus the said ever growing pendency of above 3 crore cases and clearance period of 320 years is the proclamation of the Indian Judiciary itself.

The sole reason of above sorry state of affairs is due to lack or near absence of management approach as well as appropriate technology. While there is hue and cry about the lower strength of judges, nobody is emphasizing that first there should be implementation of appropriate management and technology. Justice Krishna Iyer has said in his book ’Law, Lawyers and Justice’ 1988 edition at page 133 that we are behind 200 years compared with developed countries. Hence it will be a prudent step to adopt the already established practices in the said countries. Highlights of the important practices in the developed countries as well as our proposals are given below.

Court Management in USA

The Americans did not follow the Court System created by the British but  developed their own Judicial System suited for a democratic country. The concept of ‘Court Management’ was introduced in USA in 1960 when a body called ‘National Association of Court Management’ was created. Past 50 years massive work has been done and as a result the performance of Judicial System has considerably improved. They identified 10 core competencies viz (1) Purposes and Responsibilities of Courts, (2) Case Flow Management, (3) Leadership, (4) Visioning and Strategic Planning, (5) Essential Components, (6) Court Community Communication, (7) Resources, Budget and Finance, (8) Human Resources Management, (9) Education, Training and Development, (10) Information Technology Management. In each core competency they prepared standards for KSA i.e. Knowledge, Skill and Ability. Exhaustive training and development programs were prepared and implemented. All this was done under the guidance and advice of top notch experts chosen from different fields in the country. All details about history and methodology are available on internet.

Our High Court and Supreme Court Judges and Law College Professors have visited USA several times but no worthwhile efforts have been made to induct and introduce the modern judicial management and practices developed and established in USA.

On account of ever increasing pendency of more than 3 crore cases past 60 years and verdict of a sitting High Court judge that it will take more than 320 years to clear the pendency; it is proved beyond doubt that the existing approach of the present setup of the advocates, judges and their associate bodies like the Bar Council of India etc. can not accomplish better than the existing sorry state of affairs.

The only hope is out of the public initiatives to force the Govt first to enhance the budget from less than 1% to atleast 5% by filing PILs and creating pressure through media. After enhancement of budget, public bodies as in US and UK are to be created and they should monitor and guide the implementation as is being done in those countries. It is needless to mention that the judges are heavily overloaded and hence the advocates also in turn get heavily overloaded. The briefs are not read and studied thoroughly and orders do not deal with all the points in the brief or pressed during the arguments. Hence as a result the orders being defective or incomplete result in avoidable reviews and appeals and thus creating further load on already heavily overloaded system. Unfortunately the review and appeal courts are also heavily overloaded and hence getting speedy and cheap justice is a remotest possibility in the present system. Such heavily overloaded system becomes a easy ground for rampant corruption in the staff and even judges. The advocates also being under pressure of such overloaded system can not spare time for their clients. 

The American Bar Association has undertaken massive plan for public education by making the following statement:-

“As members of the legal profession, we serve as the guardians and caretakers of the American Justice System. Our responsibilities include improving public understanding of the Justice System and sustaining public confidence in it.” They have resolved “that the American Bar Association encourages every lawyer to consider it part of his or her fundamental professional responsibility to further the public’s understanding of and confidence in the rule of law and the American system of Justice.”

Bar Council of India has no such approach towards public.

In USA, the Judges are addressed as Mr. Justice so and so, Mr. Chief Justice so and so. In documents and records also they are addressed like this. No where words like ‘My Lord’ or ‘Your Lordship’ are used. But in our country still we are continuing the old British Addressing like ‘Hon’ble Justice’, ‘My Lord’, ‘Your Lordship’ Thus in Indian Judiciary, we have still not become a free nation. In USA and UK, the Judges are living in flats but in our country they have large mansions in very costly localities. 

Looking to the above sorry state of affairs, in a modest way we have created a body ‘Legal Forum of India’ which is active (past two and half years) in the arena of Judicial Management, Technology and Reforms in DRTs (Debts Recovery Tribunals) apart from educating the borrowers and guarantors vide details in our web site www.drtsolutions.com (active since 2000) We have held two All India Conferences in May 2008 and Jan 2011 which were attended to by the litigants, advocates, chartered accounts, business men, industrialists etc. All proceedings were video recorded and are available in form of DVDs. The said DVDs were indexed by a Digital Clock perhaps for the first time in the country. We have been publishing ‘Weekly Mails’ past two and half years every Friday. All the said weekly mails are available on our web site vide link http://www.drtsolutions.com/weekly-news.htm These mails deal with practical solutions to the management and technological problems in DRTs. We intend to implement better management and technology in DRTs and the models thus developed will be available for implementation in other tribunals and civil courts.

We now highlight the most important aspects for immediate implementation in the court rooms as under.

Recording of Oral Arguments

All the oral arguments in the courts in USA are transcripted since 1935. Such transcripts are part of court records. The said transcripts are available to public on the same day.

Subsequently audio of all oral arguments are available since 1953. Such audio recordings are part of court records. The said audio recordings are available to public on the same day. The transcript, audio and video recordings are published on the internet on the same day.

It is reiterated that our High Court and Supreme Court Judges and law college professors have visited USA several times but no worthwhile efforts have been made to induct and introduce the transcripting, audio recording and video recording of the oral arguments.

It is needless to mention that recording of the Oral Arguments is a vital document in the adjudication process. The existing system of written arguments is not the true record of the oral arguments. Hence the system of transcripting oral arguments as prevalent in USA since 1935 and audio recording as prevalent in USA since 1953 need to be implemented immediately in the Indian court rooms without further delay. We welcome earliest possible introduction in DRTs.

With the above records of the oral arguments, the court orders will be much more accurate and hence there will be lesser review and lesser appeals. Thus unnecessary pendency on this count will reduce. Ultimately there will be much better attainment of Justice for which the courts exist. Finally there will be more satisfaction to the consumers i.e. litigants due to Justice, lesser time and lesser costs of the judicial process.

Interim Measure till Commencement of Recording of Oral Arguments

Before commencement of Oral Arguments, the arguing advocate should submit the points which he will be pressing during the arguments. As per the law declared by the SC in the matter of Mohd Akram Ansari vs Chief Election Officer vide citation 2008(2) SCC 95 all those points pressed during the arguments must be dealt with by the Judge in his order. If any of those points are missed in the order, the said advocate is entitled to submit an application to include the said point. With such approach, the quality of orders will definitely improve and hence there will be overall improvement

E-filing in High Courts and Tribunals

The system of e-filing in the Supreme Court has started. We made the first e-filing (from MP) of PIL in the Supreme Court on 05.11.10 vide Diary no 31960/2010 in the matter of Satya Pal Anand, Dharmdas & Ram Kishan vs Chief Justice S. H. Kapadia and others relating to investigation into corruption charges levelled against 6 chief justices of India. It was hailed by the print and electronic media on 07.11.10. All the defects have been removed and we are waiting for earliest possible listing. Reminders have been sent through e-mails. We intend to request the Supreme Court to conduct the oral arguments through Video Conferencing as well as to make Video Record of the said arguments.

The similar system needs to be introduced in the High Courts and the Tribunals without further delay. In fact we have filed a PIL in M.P. High Court at Jabalpur on 14.02.10 to introduce e-filing in the High Courts vide PIL by Satya Pal Anand and Ram Kishan vs Registrar General MP High Court. Mr. Satya Pal Anand, 81 years, famous PIL Crusader from Indore has been kind enough to learn modern computer technology from the author of this article and was the Chief Guest in the All India DRT Conference held on 8^th Jan 2011 at Indore. His thought provoking address is available in the DVD No 021 of the said Conference. Mr. Sudhir Bindal and Mr. R.K. Tekriwal of Indore have gifted a ‘Tablet PC’ to ‘Anand Trust’ of Mr. Satya Pal Anand with the hope that he will use the same in his office and the court room.

At present the e-filing system in the Supreme Court is limited to the Petitioner-in-Person and the Advocates on Record. It needs to be extended to all the advocates.

The system of e-filing avoids unnecessary travelling of advocates or their representatives. Further it saves papers as well as their physical movements. Since it works on round the clock including holidays, the efficiency of the system as a whole will improve. All these will considerably   save the time and costs of the litigants.

Arguments by Video Conferencing

The Information Commissioner under RTI Act in Delhi, in 95% of the cases, is carrying out ‘Arguments by Video Conferencing’ particularly for the litigants from far off places like Kerala and Assam vide news item published in Economic Times, Mumbai dated 19.12.10. The litigant has to walk down to the nearest Collector’s Office where all the facility for video conferencing are available and carry out the arguments through Video Conferencing with the said Court in Delhi. This saves lot of time and costs of the litigants.

When the above Court in Delhi can carry out such process of oral arguments by Video Conferencing, the Supreme Court can also adopt the same system immediately particularly for the litigants from far off places.

Similarly in the Tribunals like DRTs and DRAT which cover many states, the same above method of arguments can be adopted immediately.

Video Arguments by the Advocates

Such ‘Video Arguments’ are being prepared and presented in USA for past several years. The Author of this Article has indigenously developed a method of ‘Video Arguments’ for the first time in the country and demonstrated the same before the District Judge Indore on 10.07.07 when the said DJ appreciated the same. This method was shown to many Retired Judges and Senior Advocates who also appreciated the same and desired immediate implementation. The proposal was sent to the Supreme Court and High Court where it is still under considerations. The Author has demonstrated the same in All India DRT Conference in May 2008, All India CAs Conference held in Indore in Feb 2009 as well as in All India DRT Conference in Jan 2011. The arguments is prepared on a PowerPoint Presentation which shows all the documents, records, judgments etc with narration. It is recorded on a CD and submitted to the court with copy to the opposite party. There are numerous advantages of such method. It saves time of the court as well as the advocates. It improves the quality of the judgments as the Judge need not note down or remember anything. This will be available even if the Judge is transferred as well as to the appellate and higher courts.

Court to Publish All the Case Materials on their Web Sites

In USA, all the documents, brief, transcript of the oral argument, audio and video records of the oral argument and the court orders are published on the web site of the courts. This will greatly help the litigants particularly from far off places by conserving their time and costs and thus will help in speedier and cheaper justice as envisaged in our constitution.

Permission for Video Recording on Mobile of All Discussions with Public Servants

Corruption has become the most important issue for our country. Oral Verdicts and Black Money are the sole causes. Public needs to be legally authorised to make video record of all the discussions with the Public Servants like politicians, bueauracrats, police as well as businessmen, industrialists. There are now 70 crores of mobile phones and many of them have got video cameras. With the legal authorisation of video recording, there will be more transparency, responsibility and accountability. A PIL in this respect will be quite useful. When one is required to have written record, why video record should not be insisted upon along with the written record.

Implementation of Above has become Easy & Affordable

Our country has sufficient manpower and world class expertise in modern IT Technologies. The costs of hardware and software has also come down considerably. Similar systems are now being used by the many departments of the State Governments. Hence implementation has become easy and affordable. Whenever we get time, we illustrate use of modern technology and management to the Advocates, Judges, Law College Professors, PIL crusaders, Litigants, Chartered Accountants, Doctors etc. For important personalities, we have even paid several visits not only to illustrate but to train them in using modern technology. We have even shown them how to e-file the petitions in the Supreme Court. We have also illustrated use of ‘Tablet PC’ in the court room. The Tablet PC is a powerful device which replaces laptops and mobile and is so handy that it can be easily carried in hand. The author is using this device at home during walking to study written records, documents, news paper extracts, court judgments etc. He carries the same during discussions with advocates, retired judges, law college professors, legal luminaries as well as the litigants particularly in DRTs.

Recently Dr. N.S. Poonia, Editor ‘Lost Justice’ from Indore became interested in application of modern technology in court room. We had few sessions of interactions. We have devoted a page to Dr. Poonia on our web site vide link http://www.drtsolutions.com/Lost%20Justice.htm titled ‘Lost Just’ Unique Law Journal by Dr. Poonia’

Conclusion & Proposal for Plan of Action for Implementation

In USA all suits (howsoever complex they are) are decided within 9 months whereas in our country we may take decades. That is why Justice Krishna Iyer has said that we are 200 years behind. On account of most inefficient and tardy judiciary in our country, the corruption and law breaking has become rampant from the highest level to lowest level as no body is afraid of wrong doings. More than 70% litigations are pertaining to the Govt departments or agencies. They fight even on petty issues upto the Supreme Court. Hence on account of various factors narrated in this article, the pendency has become more than 3 crore cases for which one of the sitting High Court Judge has said that it will take more than 320 years to clear.

We as Indians are habituated to collect information and to interact using the same just to show off superiority but we are very poor in the management of implementation. That is why goonda elements from Portugal, Moghul Countries and England ruled over us. And now that is why Indian stooges of the said goonda elements in the country are looting the wealth generated by the ignorant citizens. The only solution is application of proper management techniques and appropriate modern technology in empowering the citizens to exercise their powers to dethrone and unseat (as they can not be deported) the goonda elements in politics, bueauracracy, business and industry.

We through our web site www.drtsolutions.com (in existence since 2000) and body like ‘Legal Forum of India’ (working past two and half years) have taken up a social activity (in our free time and hence progress is slow) to implement modern management and technology in DRTs in a modest way. Our two bi-annual conferences in May ;08 and Jan ’11 at Indore were attended to by people from all over the country. The DVDs of both the Conferences are in great demand. Similarly our weekly mails published on Fridays past two and half years are viewed  with great interest. We shall continue to make efforts with our limited resources through the said web site, weekly mails and bi-annual conferences under the banner of ‘Legal Forum of India’ We are ready to spread the practical aspects of management and technology to the interested persons. We welcome suggestions through e-mail ramkishandrt@gmail.com and or mobile phone 09691103689.

Our Weekly Mails and DVDs are DRT Legal Guide and gold mine of practical information for the borrowers and guarantors - The mail recipient particularly Borrowers and Guarantors will be immensely benefited by our weekly mails and DVDs, all previous issues of weekly mails from 1st one till the last one may be viewed by clicking the links given at the top. Separate web pages have been created to contain these mails in batches of 10 so that pages open up fast. These mails are gold mine of information on current topics giving lot of practical suggestions and ill comments. Any new recipient to these mails must go through all the weekly mails right from the issue no 1 to the latest. If possible please spread the reference of our web site and the weekly mail among the persons, borrowers and guarantors who are the bank victims. If anyone desires to get these mails regularly, he may write to us for inclusion of his e-mail ID in the regular mailing list. The weekly mail is issued on every Friday morning 9 AM. The particular issue of the weekly mail is first published on the web site and then mailed to borrowers, guarantors and their advocates in the country. We are getting huge no of mails appreciating our weekly mails.  We welcome suggestions.

DRT Solutions Weekly Mail – 145th Issue dated 18th February ’11

(1) SC again reiterates that the HCs not to deal with the Securitisation matters – DRT is the only forum

The following news item was forwarded by Mr. Sudhir Bindal, one of our clients from Indore and is self explanatory:-

“Business Standard

Our Comments

(1)    Since past more than 10 years we have been repeatedly emphasizing that we should never approach High Court/Supreme Court till the facts have been judicially determined by DRTs and now our views are getting confirmed by several judgments by the SC. The Borrowers must keep in mind that before going to High Court, they should check up the facts in the writs and if the said fact is not based on any judicial determination by the DRT, they should tell their advocate firmly that the case should not be put up before the High Court.

(2)    All the material facts concerning banking, industry and finance must first be pleaded before the DRTs along with the loss and damages caused due to wrong doings of the banks. Such facts must be determined by inspection of documents and cross-examination of the bank officials. If there is any unfavourable verdict by the DRT, one should file Review and Appeal. One must always keep in view that whatever points are pressed during the arguments, the same must be dealt with by the PO DRT otherwise application under inherent powers must be filed. In short, the case should not be allowed to proceed till all the material facts are judicilly determined. The borrower must have his foot down without any lapse on part of his advocate till this minimum requirement is achieved otherwise the case is destined to be lost.

(2) The DRT and the Recovery Officer do not have any powers under the RDDBFI Act, to decide tenancy and ownership issues

One of our mail receipients Mr. Bimal Kumar Sureka from Mirzapur made a query as above. Mr. N.K. Sharm, ex-GM (Law) and our associate carried out the following legal research and  analysis, the same is reproduced below:-

QUERY: "The DRT and the Recovery Officer do not have any powers under the RDDBFI Act, to decide tenancy and ownership issues." This has become necessary to convince the Civil Court, before whom a suit is to be filed by the Owner of a Property, whose assets have been attached and auctioned, treating that tenant (borrower) is holding ownership/transferable tenancy rights.

REFERENCES:

1.      The Recovery Of Debts Due To Banks And Financial Institutions Act, 1993 (‘the 1993 Act’) Section 17. Jurisdiction, powers and authority of Tribunals-(1) A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions forrecovery of debts due to such banks and financial institutions.

2.      Section 18. Bar of jurisdiction - On and from the appointed day, no court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court, and a High Court exercising jurisdiction under articles 226 and 227 of the Constitution) in relation to the matters specified in section 17.

3.      The Code of Civil Procedure, 1908 (‘the Code’) Section 9. Courts to try all civil suits unless barred-The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.      

[Explanation I].- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

4.      As per P Ramanatha Aiyar’s the Law Lexicon, 2^nd Edition 1997 at page 1687 the term “Right” means an interest which is recognised and protected by law. As it is recognised by law a man is entitled to have it. As it can be protected by law the possessor can enforce it by an appropriate action in a court. (Raj Rajendra Sardar Maloji Narsig Rao Vs. Shankar Saran, AIR 1958 All 775, 787).

REPLY

Bar of Jurisdiction of Civil Courts

1.   Section 18 of the DRT Act, 1993 (short for “Recovery Of Debts Due To Banks and Financial Institutions Act, 1993”) provides for the bar of jurisdiction of civil courts in relation to the matters specified in section 17. Similarly, Section 34 of the Securitisation Act, 2002 (short for “The Securitisation and Reconstruction Of Financial Assets and Enforcement Of Security Interest Act, 2002”) provides, inter alia, for the bar of jurisdiction of civil courts in respect of any matter which a Debt Recovery Tribunal or the Appellate Tribunal is empowered by or under the Securitisation Act. However, since long the Courts have held that “the jurisdiction of civil court is not excluded unless the cognizance of entire suit as brought is barred” (Mayadevi vs. Indernarian, 1967 A.A. 118, 120;Mewa vs. Baldeo, 1967 A. A. 358). In this regard hon’ble Supreme Court in Bhatia Co-Operative Housing Society Ltd Vs. D. C. Patel (1953 AIR 16; 1953 SCR 185 date of judgment: 05/11/1952) held as follows:

“Learned counsel  for  the respondent took  a  preliminary objection,  founded  on the provisions of section 28  of the  Bombay Act, that the City Civil Court had no jurisdiction to entertain the suit, for that section clearly states that  in Greater Bombay the Court of Small Causes alone shall have jurisdiction  to  entertain  and  try  any  suit  between  a landlord  and a tenant relating to the recovery of  rent  or possession of any premises to which any of the provisions of that  Part of the Act applied and to decide any application made  under the Act and to deal with any claim or  question arising out  of  the Act and no other Court should have jurisdiction to entertain any suit or proceeding or to deal with  such claim or question. ………………………….The question at once arises as to who is  to decide this point in controversy. It is well settled that a Civil Court has inherent power to decide the question of its own jurisdiction, although, as a result of its enquiry, it may turn out that it has no jurisdiction  over  the  suit. Accordingly we think, in agreement with the High Court, that this preliminary objection is not well founded in principle or authority and should be rejected.”

1.1    Further, Hon’ble Supreme Court in Dhulabhai and others vs. State of M. P. and another [1969 AIR 78; 1968 SCR  (3) 662 decided on  05/04/1968] held as follows:

“Where the statute gives a finality to the orders of the special tribunals  the civil court's jurisdiction  must  be held  to be excluded if there is adequate remedy to do what the  civil  courts  would  normally  do in  a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. [682 A-C; 683 C]” (emphasis supplied)

1.2    Hon’ble Bombay High Court in a recent judgment in Centurion Bank Ltd vs. Indian Lead Ltd [(2000) 100 Comp. Cas. 537: (1999-3) 101 Bom. L.R. 556] held as follows:

“Under the 1993 Act (i.e. ‘the DRT Act, 1993’), there is no total ouster of jurisdiction of civil Court. The ouster is by virtue of Section 18, which sets out that no Court or other authority can try matters for recovery of debts. Insofar as the reliefs which do not pertain to debts, on a plain reading of Section 17 of the 1993 Act are concerned, there can be no doubt that the civil Court will still retain jurisdiction.”

1.3    Recently, Hon’ble Supreme Court in Indian Bank vs. ABS Marine Products (P) Ltd [JT 2006 (5) SC 281: SCC 2006 (5) 72] held as follows:

“From Section 17 and 18 the Civil Court’s jurisdiction is barred only in regard to application by bank / financial institution for recovery of its debt and not barred to file a suit by a borrower against a bank.”

1.4  Further, in a latest judgment Hon’ble Supreme Court in  Rajender Singh Vs. Vijay Pal @ Jaipal & Ors.[(2008) 4 SCC 36 Appeal (civil) No. 3867 of 2001 date of judgment: 19/02/2008] held as follows (in para 2 and 3):

“2.        The plaintiff/respondent no. 1 had instituted the suit before the Civil Judge, Delhi for declaration and injunction in respect of the suit property and for other incidental reliefs. In the said suit, a preliminary issue was framed to the extent that in view of Section 185 of the Delhi Land Reforms Act, 1954 (in short ‘the Act’), the jurisdiction of the Civil Court to entertain the suit was barred.

3…………………..The (Delhi)High Court in the impugned judgment held that Section 185 of the Act could not be applied in view of the nature of the reliefs claimed in the suit and therefore, the suit shall be heard on merits on the other issues. In view of the stand taken by us, as noted hereinafter, and considering the facts and circumstances of the case and the allegations made in the plaint, we are, prima facie, satisfied that this appeal can be disposed of by directing the trial court to decide the suit not only on the other issues on merits but also on the issue regarding the jurisdiction of the civil court to entertain the suit in view of section 185 of the Act.”

DRT Solutions Weekly Mail – 144th Issue dated 11th February ’11

(1) SBI Chairman & other bank officials get firing and Contempt Notice from High Court Bombay in a Securitisation matter for not acting as per law and for deliberate auction of a flat at throwaway price despite party prepared to make full payment – scandal and corruption by bank officials by misuse of powers

The following news item was referred to us by Mr. Sanjay Jain, one of our clients from Nagpur. It appeared in the Times of India, 6th Feb, Mumbai Edition and is reproduced below:-

  
”MUMBAI: Nationalized banks are not supposed to act like " moneylenders" the Bombay high court has said in an order and issued contempt notices against State Bank of India chairman O P Bhatt and another bank official. The bank, violating HC orders, took possession of a disputed flat in Thane and put it up for auction. 

"The SBI being Government of India undertaking is expected to honour the rule of law," said a division bench of Justice V C Daga and Justice R G Ketkar. "It is not expected to act as a moneylender. The approach should not be to deprive citizens of their property in garb of executing powers under the Securitisation Act and make unlawful gain for its officers while disposing of property at a throwaway price. Rather the approach should be to recover monies by legal means." 

The HC has asked Bhatt and S Ramaswamy, of the SBI Wagle Estate, Thane branch to respond to the contempt notices by February 9. The court has issued a notice to deputy manager of the Wagle Estate branch Abhay Nimkar as to why he should not be prosecuted for perjury for making a false statement in court. 

In 2006, Mumbai resident Firdosh Mehta signed a deal with one Pandurang Hiwarkar to buy his flat in Neelkanth Tower in Thane for Rs 57 lakh. While Mehta paid a part of the amount, he found out that the flat was mortgaged with SBI and Hiwarkar had defaulted on the home loan. Mehta moved court as the deal with Hiwarkar fell through despite him paying part of the money. He asked the court to order Hiwarkar to carry out his part of the deal and sell him the flat. The court ruled in Mehta's favour in December 2009. 

Hiwarkar then approached the HC. Despite the fact that Mehta offered to pay off the liability, SBI refused to settle the case. He issued cheques of over Rs 34 lakh, but they bounced. On December 6, 2010, SBI took possession of the flat despite court orders that it should remain with Hiwarkar. The HC found that the bank took possession of the flat at 1.45 pm but Nimkar said they attached it at noon. The bank subsequently issued public notice to auction the flat, which they claimed had a clear title. The HC wondered why the bank was insistent on auctioning off the flat even though Mehta was willing to pay the outstanding amount. 

"The Bank was all along trying to protect the defaulting borrowers (Hiwarkar), and colluded with them to harm the interest of Mehta with the intention to make unlawful gain from disposal of the flat by allowing purchasers to form a cartel," the judges said. The court also held that Hiwarkar, by depositing the cheques which bounced and handing over the flat to SBI, was "prima facie" violating the undertaking given to the court. 

Our Comments

(1)                We have been emphasizing all along to implead the Chairman of the Bank a necessary party. Our contention is proved once again.

(2)                Perfect pleadings must be made at the level of DRT so that full adjudication is made at the trial itself. When vital properties are at stake, the borrower is entitled for full trial in accordance with the principles of natural justice.

(3)                It is always kept in view that trial based on principles of natural justice will be more exhaustive even compared with the CPC.

(4)                Perfect pleadings including damages and or counter-claim, full inspection of all material documents and complete cross-examination of bank officials including the Chairman are the minimum requirements of a normal bank trial. All these need experienced Advocates in DRTs including full involvement of the borrower himself.

(5)                One should never go to higher courts until and unless all the facts have been completely determined in the lower court. The tools of review, application u’s 151 based on Mohd Akaram case of SC must always be used to check the hurry created by the bank officials and the DRTs.

(6)                We have found that the bank officials have not been trained or educated even in thinking or application of elementary law and hence they commit several mistakes and wrong doings resulting into loss and damages which must be claimed fully in the pleadings.

(7)                The above judgments will help in preventing misuse of powers by the bank officials or hurried trials by the DRTs.

(2) Advantages of E-filing in the Supreme Court

We have personally experienced the following advantages of e-filing in the Supreme Court:-

(a)    It is quite fast and comfortable and there is tremendous saving of money. There is no physical movement of either person or documents. Payment of court fee is made electronically by use of credit card. The defect removal is through e-mail. Thus right from the beginning and defect removal there is no physical movement of either person or documents. Certified copies of the documents may be obtained through e-mail. Further there is perfect record of complete proceedings and the process in the e-mails. The entire process works 24 hours including holidays at convenience of sitting in your own home or office.

(b)    In case of existing method of filing, one has to travel to the Supreme Court and stay there till the petition is filed. One has to engage an Advocate-on-record and the documents are to be sent to him. If there are any defects, it takes lot of time because of physical movement of documents as well as the person. It is highly cumbersome as well as expensive and time consuming. It is all the more trouble some for the petitioners from far off places like South India, Aasam etc.

(c)    We filed a PIL writ on 05.10.10 from our office at Indore. It took hardly 5 minutes and the expenditure was Rs. 357=00 paid through credit card. The registry of the Supreme informed about the defects on 21.10.10 through e-mail. All the defects were removed by 16.11.10.

(d)    We feel such method of e-filing must be started in all High Courts and Tribunals including the DRTs. There will tremendous saving of national time and national wealth.

(e)    Since the present process is available for Petitioner-in-Person or the Advocate-on-Record, the petitioners are advised to include their names in the Petition. The complete instructions are available on the web site of the Supreme Court. One may practice in advance. One should also practice for making online payments using his credit card.

DRT Solutions Weekly Mail – 143rd Issue dated 4th February ’11

(1) Inspection of Bank Documents – Recent Experience

Recently we got an assignment from one of our clients of DRT Jabalpur to inspect their bank documents. Following is the highlight of our experience in conducting the said inspection:-

(1)    Initially  the party submitted a list of documents to be inspected. The DRT disallowed the said application.

(2)    The party appealed to the DRAT Allahabad which reversed the order of the court below with the stipulation that available documents out of those submitted by the bank in the OA may be inspected by the authorised official of the borrower.

(3)    On this we advised the party to submit a review application before the DRAT to modify their order to allow inspection of the documents as per the list originally submitted. Further the bank should first furnish the certified copies of the documents to be inspected.  

(4)    The party and their counsel, however, desired to carry on the inspection without any review.

(5)    Our banking expert was duly appointed by the party. As anticipated, the bank offered a heap of the documents without any list or certified copies.

(6)    On account of above, only few documents could be inspected and the detailed inspection report thereof was prepared with the ‘Recommendation and Conclusion’ that the DRAT should modify their order for inspection as per the original list along with provision of certified copies in advance of inspection.

Our Comments

(a)                In all the bank litigations, the facts are contained in the bank documents. If all the documents are not produced and inspected, all the material facts will not be revealed and the chances of success will remote.

(b)                Initially the list of material documents be sent to the bank to offer inspection. If the bank does not agree, the case be put up before the Court.

(c)                The bank must provide certified copies of the documents before commencement of inspection. If the bank does not agree, the case be put up before the Court.

(d)                The inspection has to be conducted by a person having expert knowledge of banking and bank documents as well as the law of evidence.

(e)                The above procedure is based on well established procedure of law in existence past 100 years and is nothing new. Experienced trial lawyers are fully aware about the same. Unfortunately the DRTs are mostly manned by young lawyers having not enough experience of trials.

(f)                  In USA there is separate Bar Association of Trial Lawyers. In fact no trials should be conducted by fresh and inexpericed lawyers. They should have experience of at least 5 to 10 years under senior trial lawyers and then only they should be allowed to practice independently.

(g)                Since in our country we have not given due importance to Judiciary and are continuing with the system left by the Britishers whose aim was to rule over the country. The said system is not at all suited for democratic setup like ours.

(h)                In UK, proper evolution of tribunals took 157 years where the society was having affordability and was carrying on the judicial process in their own mother tongue.  

(i)                  Conditions in our courty are all adverse.

(j)                  In view of above the borrowers in DRTs will have to face all odds and be prepared to fight with foot down to perfection at all stages of trials against the bueauracracy in banks and judiciary.

(2) Correcting an Error committed by the Draftsman in Legislative Drafting in CPC 1908

Mr. N.K. Sharma, Ex-GM (Law) and Associate DRT Legal Solutions has sent the following important item which is self explanatory:-

“Hon’ble Supreme Court in Afcons Infrastructure Ltd. & Anr. Vs. Cherian Varkey Construction Co. (P) Ltd. & Ors. {(2010) 8 SCC 24; Decided on 26.07.2010} held as follows in para 13.5 and 16 respectively:

13.5) A classic example of correcting an error committed by the draftsman in legislative drafting is the substitution of the words `defendant's witnesses' by this Court for the words `plaintiff's witnesses' occurring in Order VII Rule 14(4) of the Code, in Salem Bar-II {Salem Advocate Bar Assn. II Vs. UOI (2005 6 SCC 344)}. We extract below the relevant portion of the said decision :

"Order VII relates to the production of documents by the plaintiff whereas Order VIII relates to production of documents by the defendant. Under Order VIII Rule 1-A(4) a document not produced by defendant can be confronted to the plaintiff's witness during cross-examination. Similarly, the plaintiff can also confront the defendant's witness with a document during cross-examination. By mistake, instead of 'defendant's witnesses', the words 'plaintiff's witnesses' have been mentioned in Order VII Rule 14(4). To avoid any confusion, we direct that till the legislature corrects the mistake, the words 'plaintiff's witnesses, would be read as 'defendant's witnesses' in Order VII Rule 14(4). We, however, hope that the mistake would be expeditiously corrected by the legislature." 

“16. In view of the foregoing, it has to be concluded that proper interpretation of section 89 of the Code requires two changes from a plain and literal reading of the section. Firstly, it is not necessary for the court, before referring the parties to an ADR process to formulate or re-formulate the terms of a possible settlement. It is sufficient if the court merely describes the nature of dispute (in a sentence or two) and makes the reference. Secondly, the definitions of `judicial settlement' and `mediation' in clauses (c) and (d) of section 89(2) shall have to be interchanged to correct the draftsman's error. Clauses (c) and (d) of section 89(2) of the Code will read as under when the two terms are interchanged: 

(c) for "mediation", the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for "judicial settlement", the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed. 

The above changes made by interpretative process shall remain in force till the legislature corrects the mistakes, so that section 89 is not rendered meaningless and infructuous.”