DRT  Legal  Solutions

(Debts Recovery Tribunal Legal Solutions) is an India based

Law Firm specializing in DRT, Securitisation, Sarfaesi, IBC, NCLT, Borrowers, Guarantors in Debts Recovery Tribunals and Defamation Solutions with Damages

Pioneers in Counter-claims and Damage Suits based on Law of Torts and Law of Damages 

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DRT Solutions Weekly Mail – 170th Issue dated 12th August ’11

 

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


 

(1) Illegal Physical Possession u/s 14 of Securitisation Act

 

Recently one of our clients from Delhi informed that when he was out of station, the bank officials took illegal possession of his properties with the help of police. Subsequently when he informed this incidence, following facts were revealed and our comments were as under:-

(a)    The bank sent the notice u/s 13(2) few months back. The borrower submitted his representation and objections within the prescribed period of 60 days. The bank did not reply within the prescribed period of 7 days

(b)    The bank did not issue any notice u/s 13(4). It so happened that the borrower was out of station, the bank officials took possession of the property with the help of police.

(c)    After few days when the borrower came back, he found such action of the bank, he informed us. We asked him to ascertain all the facts and submit application before the DRT u/s 17 of the Act with an urgent application to restore the possession of the property.

(d)    This is just like any other action by the bureaucracy when blatant and misuse of the power is considered to be use of the power. It is similar to what Delhi Police did on the night of 4th June ’11 at Ramlila Maidan. That is why we advice all the borrowers to be vigilant and alert. Caveat should be submitted before the Magistrate. Proceedings in his office must be watched. Proper Review and Appeal must be made. The persons on the spot must be aware that whenever any bank officials with police come, copy of the Court Order is a must otherwise, no possession should be given. If the possession is forcibly taken, FIR must be filed. If the Police refused to accept the FIR, the same should be sent by registered post. Further private complaint be lodged with the Magistrate. Immediate Application be made with the DRT u/s 17 of the Act. It is needless to mention that the borrower must include loss and damages in his representation and the said application before DRT. The proceedings before the Magistrate and DRT must be conducted with proper written submissions, Review and Appeal etc as we have emphasized in several weekly mails.

(e)    In many cases, we have found that the Magistrate and the PO DRT are not conducting proper trial as per the law and procedure of law laid down by the Supreme Court, it is all the more important for the borrower to keep all these aspects in view while his advocate conducts the proceedings.

 

(2) Use of Tablet PC by the Borrowers and the Advocates

 

Past six months we have been using Tablet PC of Chinese make. Recently we have procured branded one of the specification which we were waiting past 4 months i.e. ‘Asus Eee Pad Transformer Tablet PC’. It is a wonderful device for use by the borrowers and their advocates even in the court room. It has a detachable keyboard. The combined batteries provide operation upto 16 hours. The weight of the 10.1” tablet is 680 gms and it has very good resolution with two cameras, rear of 5MP and front of 1.2 MP which can shoot and record HD videos. The download from internet including e-mails on wi-fi is quite fast. We are now using it for full fledged purpose during walking and thus injurious sitting is completely avoided. All the borrowers and their advocates must use this device as it will not only greatly improve the efficiency but will contribute to better healthy life.

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DRT Solutions Weekly Mail – 169th Issue dated 5th August ’11


 

(1) Useful Case Study – Challenge to Borrowers & Guarantors to understand & take Active Part in Litigation Process in DRTs & Higher Courts as their stake is Highest.

 

The following case analysis, study and comments will be quite useful to the borrowers and their advocates fighting in DRTs as well as in the higher courts. The name of the client and the DRT are not mentioned due to professional secrecy and not to cause any aspersion on any body:-

(1)    We have been emphasizing our clients right from 2001 to understand and take active part in the litigation process in DRTs. The following case study, analysis and comments will again prove our contentions.

(2)    One of our clients filed his application (i.e. appeal which is misnomer as per Mardia Chemicals but it has not yet been corrected yet by the legislature since 2004)) u/s 17 of Securitisation Act in DRT. The appeal contains exhaustive pleadings about the wrong doings of the bank as well as the loss and damages suffered due to the said wrong doings. Since the said loss and damages are much more than the alleged claim of the bank,  prima facie there is ‘No Debt Due’ Hence until and unless the said application u/s 17 is fully decided by the DRT, no recovery action can be initiated by the bank.

Comments :-

(a)    Govt & Banks want DRT to decide the cases quickly within 6 months but they are unable to get simple correction in the Act even in 9 years.

(b)    DRTs are to be transferred from Ministry of Finance to Ministry of Law despite SC Judgments past several years. Despite writ petitions and applications under RTI Act, the Ministry of Finance is not effecting this transfer due to obvious influence of banking lobby.

(c)    The DRTs are to be manned by persons (judges & advocates) having specialized knowledge in banking, finance and industry vide page 77 in ‘Tiwari Committee’ report of RBI published in 1984 ( 27 years back) Till today this vital aspect has not yet been implemented by the Govt. 

(d)    The DRTs are to function judicially without any bias in accordance with the principles of natural justice i.e. (i) Hear the other party, (ii) nobody can be a judge in his own case, (iii) apparent errors in finding of facts and law should be corrected quickly the moment they are brought to the court, obviously by the process of Review. Further as per the law laid down by the SC, the DRTs can even go beyond CPC in the interest of justice.

(e)    The bogey of ‘Public Funds’ can only be raised by the banks if before coming to the court, they have followed all RBI Guidelines and Govt policies as well as the SC judgments otherwise they themselves are not caring for ‘Public Funds’ and hence they have no authority to point out such aspect.

(f)      All the above aspects are to be taken care of in pleadings, submission and arguments before the DRTs. We have been emphasizing the same to the borrowers to avoid any lapse by their advocates, if any.

(3)    Our client also filed a caveat before the Magistrate so that if the bank approaches the Magistrate, the borrower should be given opportunity of hearing. The Magistrate informed in writing that due opportunity will be given.

(4)    Subsequent to filing of the said application u/s 17, the bank approached the Magistrate Court u/s 14 to take physical possession of the secured assets. Our client submitted exhaustive reply, arguments were held by our senior advocate and written arguments were submitted.

(5)    The Magistrate kept the issue of order pending for few months and then finally gave his verdict in favour of the bank.

(6)    We immediately advised the client to file a Review before the said Magistrate. At this juncture, our client committed a blunder by not filing the required Review and without informing us went to anther advocate and filed an appeal before DRT.

(7)    Our client sent us copy of the said appeal. We found many mistakes in the said appeal and since our advice for filing Review was ignored, we preferred to keep quiet and asked the client to proceed as per advice of his advocate.

(8)    The PO DRT rejected the said Appeal. Our client then approached us for further advice in the matter. We told him that since he ignored the important Review and filed an erroneous Appeal, he should continue with his advocate for further action. 


 

Analysis and Comments :-

(a)    We had full control on the case till issue of the order by the Magistrate as we submitted exhaustive oral as well as written arguments.

(b)    Under such situation, there was strong case for Review as we had created sufficient record in the court of Magistrate.

(c)    Despite Review getting rejected, we would have forced the Magistrate to mention all our points in the order.

(d)    Ignoring Review by the Magistrate created a lacuna and his order remained unchallenged.

(e)    Appeal is undertaken for correction of illegalities, if any  in the bottom court. We would have used the said record and would have made a very strong appeal but on account of serious error of not following our advice, the Review was ignored and the said record was not created.

(f)      Further the said appeal being erroneous had erroneous arguments and no written arguments were submitted and hence anther defective order by the PO was issued.

(g)    With such serious defects, we preferred to keep our hands off.

(h)    The lesson is that since we know that entire environment is against the borrower, we have to be cautious at every stage and should not proceed at any point without sufficient efforts and records so that the same are submitted before the higher courts which should always be forced to include all our points in their order as per verdict of the SC in the matter of Swaran Lata as well as Mohd Akram.

(i)      Many of our clients are getting success when they follow our guidance and advice fully otherwise they suffer as in this case.

 

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DRT Solutions Weekly Mail – 168th Issue dated 29th  July ’11


 

(1) Importance of Review – PO DRT Bangalore hears Review and admits some of his mistakes

 

One of our clients from Bangalore has informed that the Review was heard and the PO said that he would correct some of the mistakes but will not change his conclusion. Accordingly he adjourned the matter to subsequent date. As advised by us the party now got time to file the appeal also.

 

Our Comment

 

Had the Review not been filed, neither the said mistake would have been corrected, the matter would have not been adjourned and more time for appeal would have not been obtained. Side by side, it has put a pressure on the mindset of the PO that he should be careful in future to abide by law. Further the incidence has demonstrated to other advocates that they should also utilize the tool of Review.

 

Now we advised the party that the order on Review must be gone through and if any point which has been pressed during Review does not find place in the order, another application must be filed giving reference to the SC Judgment in the matter of Mohd Akram so that the PO includes all the points in the Review Order. This will further correct the mindset of the Review that he must listen to all points and mentions the same in his order. When he does so he needs to be reminded about SC judgment in the matter of Swaranlata so that reasons are given in respect of all points and conclusion is to be based on such analysis. This will prevent the PO to be arbitrary or bias towards bankers.

 

It is unfortunate that there is no system of constant trainings of the Advocates and Judges and that is why we are educating our clients and the borrowers to understand all these things and impress upon the advocates and the judges to think if they were the borrowers, how they would have handled their own case. In this respect the SC judgments in the matter of SP Gupta and AK Kripack would be highly useful.

 

(2) Importance of Review – PO DRT Lucknow hears Review and provides useful Relief

 

Recently one of our visitors from Jharkhand informed that DRT has passed decree without mentioning several points put forth during arguments and he desired our suggestions for Appeal. We asked him to file an application for Review based on the Judgment of SC in the matter of Mohd Akram. The PO DRT Lucknow though did not modify the order but agreed to annex certified copies of the written arguments. Such action on Review resulted in a very useful relief for Appeal as the Appeal Court will have a definite proof that the trial has not be done properly and hence the case be remanded to lower court. As soon as the case is remanded for retrial in DRT, we shall amend the pleadings to include all the wrong doings of the bank as well as the counter-claim.


 

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DRT Solutions Weekly Mail – 167th Issue dated 22nd July ’11


 

(1) Problems in DRT and Importance of Review

 

One of our clients at Bangalore has informed the following problems:-

(a) The PO in the said DRT is looking after other two DRTs also and hence he is extremely busy.

(b) The said PO is an ex-banker and appears to have no practical legal knowledge of a trial court.

(d) On account of above, there is a huge discontent among the borrowers, guarantors and their  advocates on account of biased orders favoring banks.

(e) We have advised that Review and Appeal must be filed against such orders. Court proceedings must be audio recorded and written record verbatim be filed in the court. When there will be several cases, cases be filed in DRAT to transfer the case to some other DRT. Side by side, writ be filed in High Court so that injustice be thus caused is remedied. The affected borrowers and guarantors should initiate suitable joint action.

(f)  Many of the Advocates do not believe in the remedy of Review. In this connection, the following information will be useful.

 

Our Comments

 

(1)    The DRTs were created consequent on the Tiwari Committee Report on ‘Rehabilitation of Sick units’ in 1980. The said Committee recommended formation of Tribunals which should be manned (i.e. Judges and Advocates) by persons having knowledge about banking, industry and finance. The said recommendation of 30 years back has not yet been implemented.

(2)    As per Article 141 of the Constitution of India, the law declared by the Supreme Court shall be binding on all courts (which includes the Tribunals i.e. DRTs also) in territory of India. The Supreme Court in its judgment vide AIR 1969 SC 1167, Swaranlata vs Harendra Kumar has laid down in Para 6 as to how the trial is to be conducted. The DRTs are required to follow the said law. Most of the judges of the DRTs are not following the said law.

(3)    Violation of law declared by the Supreme Court amounts to ‘Error Apparent on Face of Records’ and hence such orders of the DRTs become amenable to correction by way of Review.

(4)    The remedy of Review is as old as the present legal system vide Pg 842 in “Commentaries on the Laws of England’ by Blackstone, 4th Edition 1938. This Commentary is referred to by our Supreme Court in its several judgments. Many of our Advocates and Judges do not believe in the Review due to their lack of knowledge.

(5)    Recently the Govt of India has filed Review in the matter of formation of SIT to investigate the quantum of Black Money. Even in the famous case of Union Carbide, the question of Review was raised. One of our clients got a favorable Review order in 1997. If one goes through any Digest on CPC, he will find that past 100 years there are many cases of successful Reviews.

(6)    The famous judgment on Reference on the matter of Review vide AIR (35) 1948 Allahabad 353, Behari Lal vs Gobardhan Lal is virtually a research on the matter of Review past 150 years.

(7)    The tool of Review is most powerful whenever any Judge disregards his duty to do justice. One will have to use the law declared by the Supreme Court in the matter of Mohd Akram so that all the points raised during the arguments are covered in the order.    

 

 

(2) Cases against Netas seldom probed properly says Supreme Court

   

 

Dhananjay Mahapatra, TNN | Jun 29, 2011, 01.35am IST

http://timesofindia.indiatimes.com/india/Cases-against-netas-seldom-probed-properly-says-Supreme-Court/articleshow/9032130.cms

NEW DELHI: The Supreme Court has moved to plug loopholes in the judicial administration system that are exploited to undermine probe into criminal cases involving important political figures and inordinately delay their trial. 

Terming the problem a 'grave and serious' danger to justice delivery system, the apex court has sought a report from the Law Commission on the issue. 

The initiative came in response to a PIL filed recently by V K Ohri which stated that criminal cases against influential persons seldom got properly investigated and tried fairly, expeditiously and in accordance with law. 

"As a result, influential people/accused having committed heinous offences are not brought to book and are mostly able to escape. This results, on many occasions, into grave miscarriage of justice and erodes the credibility of the criminal justice system," Ohri's counsel Prashant Bhushan told the court. 

A bench comprising Justices Aftab Alam and R M Lodha said, "The problem identified in the writ petition is indeed grave and requires serious consideration. However, the court finds it difficult to deal with the issue in a meaningful way in the absence of necessary data and all the facts and figures relevant to the issue." 

It added, "In these circumstances, apart from expecting a serious assistance from the side of theUnion of India, we would like the Law Commission of India to examine the matter and submit its report with a view to assist the court." 

The court requested the commission to consider the issue and submit a detailed report by end of August, when Ohri's petition would be taken up for hearing afresh. The commission headed by Justice P V Reddy discussed the issue last week and kept it for further deliberation next month. 

The petitioner had cited the case of Shibu Soren, alleging that despite being declared proclaimed offender in a case, he was able to avoid arrest allegedly in connivance with police, and attended Parliament, election meetings and became a minister at the Centre. 

"Similar is the fate of thousands of cases against influential persons who have committed gruesome crimes against common man and have gone scot free due to delay in process manipulated by them because of their influence," the petitioner said. 

The outcome of the case could affect the proceedings of the 2G scam trial in which former telecom minister A Raja, MP Kanimozhi and corporate biggies are made accused after the CBI filed a chargesheet alleging that the nation was cheated of Rs 22,000 crore because of irregular allotment of spectrum. 

 

 

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DRT Solutions Weekly Mail – 166th Issue dated 15th July ’11


 

(1) Mughal-era law still governs road accident relief: SC

 

Just after becoming independent in 1947, we evolved our own constitution based on various constitutions existing in the world at that time and it was introduced in 1950. We took pride and announced that we have a world class constitution. But we didn’t do anything to create world class courts, world class advocates and world class judges. As a result now we have more than 3 crore cases pending in the courts and the high court judges are telling that it will take 320 years to clear the pendency.

 

We still continue to have not only British laws but even older Mughal-era laws as may be seen from the following news item. The worst part is that despite SC telling past 20 years to amend such laws, there is no effect on our Govt.

 

Dhananjay Mahapatra, TNN | Jul 9, 2011, 01.53am IST

http://timesofindia.indiatimes.com/india/Mughal-era-law-still-governs-road-accident-relief-SC/articleshow/9156097.cms

 

NEW DELHI: Apart from the penal laws punishing drunk drivers running over people, can the offender be sued by the victim's relatives for compensation? 

Yes, under a law that was enacted when the last Mughal Emperor, Bahadur Shah Zafar, was the titular head of the throne at Delhi

Taking note of this, the Supreme Court has asked the Centre to immediately commence work to draft a new law to replace the archaic legislation. It expressed serious concern over the extreme inadequacies in the law governing suits for damage filed by relatives to claim compensation for death due to rash and negligent act, including drunken driving cases. 

It rapped the government for not taking note of a 20-year-old apex court judgment recommending drastic change in the 1855 law or a new legislation to meet the present day challenges. 

A bench of Justices Aftab Alam and R M Lodha said: "We are constrained to observe that a suit for damages for a murder of a person, like the present one, is filed under Fatal Accidents Act, 1855. As the year of enactment shows, the Act dates back to the period when the greater part of the country was under the control of East India Company with the last Mughal 'Emperor', Bahadur Shah Zafar, as the ineffective, though titular monarch on the throne at Delhi." 

The Act was enacted to provide compensation to families for loss occasioned by the death of a person caused by actionable wrong. "It is a matter of grave concern that such sensitive matters like payment of compensation and damages for death resulting from a wrongful or negligent act are governed by a law which is more than one and a half centuries old," said Justice Alam, who wrote the judgment for the bench. 

With anguish it remembered that a constitution bench of the Supreme Court in a 1990 judgment had said: "The Fatal Accidents Act, on account of its limited and restrictive application, is hardly suited to meet such challenge. We are, therefore, of the opinion that the old antiquated Act should be drastically amended or fresh legislation should be enacted which should contain appropriate provisions" for various exigencies. 

Justice Alam said: "It is unfortunate that the observations of the Supreme Court have so far gone completely unheeded. We hope and trust that the Union government would at least now take note of the urgent need to bring a contemporaneous and comprehensive legislation on the subject and proceed to act in the matter without further delay."


 

Our Comments

 

On one hand the Govt. is not bothered to amend the Mughal and British-era laws, it is enacting coercive legislations such as Securitisation Act, the Govt wants DRTs to decide the cases within 6 months, the DRT Judges are being appointed by the Ministry of Finance despite SC verdict that it should be done by the Ministry of Law. Such inherently biased DRT Judges are inclined to favour the banks. Thus there is no proper judicial management in our country in any area whether it is Legislation, Courts or DRTs, appointment and training of the Judges.

 

In view of above facts and circumstances, we have come to the conclusion past several years that the litigant borrowers and guarantors alone will have to take the lead in safeguarding their own interests by understanding and using the relevant legal provisions on which we throw light through our web sites and the weekly mails.


 

(2) Our Per capita share in the Black Money is Rs. 4 lac 40 thousand on conservative estimate    

 

Mr. Firoz Poonawalla has sent a presentation on ‘Corruption in India’ vide attachment  this mail. From the data given in the said presentation, we conclude as under:-

 

(a)    Past 64 years, the politicians, bureaucrats and businessmen in collusion have looted our hard earned money and the amount deposited by them in foreign banks and tax havens is $ 1456 billion (1.4 Trillion dollars) i.e. Rs. 655 lac crores based on one dollar equals Rs. 45 (today’s rate is Rs. 47.96) Thus from conservative estimates, per capital amount for 121 crores Indians comes to Rs. 5 lac 40 thousand.

(b)    The public must quote this figure while talking to the politicians and bureaucrats so that they are pressurized to get the said public money as early as possible.

(c)    There are 40,000 cases in DRTs and each case on conservative estimate is affecting 10 persons and thus the affected persons have a sum of Rs 21,600 crores. Imagine if this money is invested in the following DRTs aspects, the results will be spectacular;-

(1)    The number of DRT judges should be increased to 10 times.

(2)    The said DRT Judges be imparted one year training in banking, industries, finance, technology, trial court management etc.

(3)    The DRT advocates should have 6 months training in all the above aspects.

(4)    There should not be any court fee or deposits.

(5)    Court rooms should be modernized with latest facilities.

(6)    Each DRT will have its own web site and there will be live transmission of proceedings.

(7)    Each case including counter-claims be decided in 9 months time.

(8)    Such quick decisions will improve the banks, industries, business, businessmen and entrepreneurs.

Thus we will have world class DRT courts, DRT advocates, DRT Judges and hence it is our duty to devote portion of our time to get the said black money as early as possible. Till such time we must not allow any injustice in the present setup and as emphasized, the litigant borrowers alone will have to involve themselves.

 

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DRT Solutions Weekly Mail – 165th Issue dated 8th July ’11

(1) No faith in Govt, SC appoints special team to trail blackmoney

http://www.indianexpress.com/news/No-faith-in-govt--SC-appoints-special-team-to-trail-blackmoney/812533/

 

Pulling up the government for the 'laggardly pace' in investigations into the issue of black money stashed abroad, the Supreme Court today appointed a Special Investigation Team (SIT) headed by former apex court judge B P Jeevan Reddy to investigate and monitor steps taken to bring the unaccounted money back home.

Another former apex court judge M B Shah will be Vice Chairman of the 13-member SIT into which Director of Research and Analysis Wing (RAW) has been inducted.

A bench comprising Justices B Sudershan Reddy and S S Nijjar, which is seized of the issue raised in a PIL by noted jurist Ram Jethmalani and others, pronounced the order saying monies generated and secreted away reveal the degree of "softness of the State".

The court rejected the demand for disclosing the names of individuals which had figured in the list given by German government but ordered giving out the names of those against whom show-cause notices have already been issued and prosecution has taken place.

(2) Black Money contains Portion for All Citizens including that of Yourself, Bank Officials and Judges. 

Past 64 years, the politicians, bureaucrats and businessmen in collusion have looted our hard earned money. Had it been in our own country, it would have been part of circulation but these thieves had been so callous that they have transferred the loot to foreign banks. The foreign banks and governments had been using and enjoying our money. The worst part is that the same money becomes part of our borrowing through world bank and IMF. Further the said thieves dare to invest in our country through Mauritius Route.

The quantum of this money is so huge, modest estimates put it to something like Rs. 400 lac crores.

The fault lies with us who are the owners of the said money and we are not bothered about the daylight robbery and loot.

Had this money would have been in our country, we long back could have better roads, railways, ports, aerodromes, etc.

Our first thought comes to the Judiciary and DRTs. Had this money been with us, government would have not dared to restrict only 1% on the judiciary compared with 8 to 12% in developed country. The civil trial courts would have decided the cases in 9 months as in USA. Then there would have been no need of DRTs. The bankers would have been more law abiding to implement the RBI Guidelines, Govt policies and SC judgments. Hence all the litigant borrows and guarantors are also suffering due to the said loot and robbery. If we continue to sleep and ignore this important leakage of our hard earned wealth, we are committing a serious wrong doing due to breach of our duty of care towards our family and our children. Please devote portion of your time daily say at least half an hour. There is sufficient material on the internet and study the same, discuss in you circle and spread the message in the society. We may resort to the following thought process and action plan:-

(a)    Every citizen has the highest office even more than President of India as he/she is a public servant. This was stated by Justice Hegde and we have got the media video clip. 

(b)    We need not follow any leader, party, group etc. We should start from our home and discuss the matter with whomsoever we come in contact.

(c)    We should talk to employees particularly low paid servants and maids and explain them meaning of black money and how it has been and continues to be looted.

(d)    We should tell them the importance of election and following method of choosing candidates:

(i)                  First preference to the Independent Candidate. Visit home of that candidate and ascertain from his neighbors whether he is honest and hard working.

(ii)                Second preference to the party which had been least in power. It is well known that more no of years the party is in power, more is the loot.      

(e)    Learn video making on you mobile. Whenever you visit house of the candidate and talk to them, make video films for future records. During elections, make videos of the promises made by the candidates. 

(f)      Show these videos in your circle, family and employees. On holidays visit the pockets of voters and show them these videos. Post these videos on YouTube and internet. Send these videos to TV Channels. Make CDs of these videos and handover to the public. 

(g)    If you do above, for next 2 years, there will be a sizable impact. The message will go to the politicians(i.e. servants) that their masters have woken up from sleep as the video record from the mobile, internet and TV Channels will prevent them to fool their masters.

(h)    Study Constitution and SC judgments so that you can point out to the politicians that they can not fool the public and hence the black money has to come back, the guilty has to be punished.

(i)      Whenever anyone of you visit my office, we may exchange our views and videos.

(j)      Our goal is have a parliament of such members who will selflessly work for the nation. They will enact ‘Right to Recall’ (based on our video proofs), ‘Right to Reject’ (i.e. if none of the candidate is competent, we shall reject all so that there will be reelection. The parties will be afraid to spend money again and again and hence they will have to come up with proper candidates. Here again our videos will be of great use.)

(k)    This is a silent movement by the citizens without aligning with any party, group, caste and creed. Citizens working for betterment of their fellow citizens, their families and children. Instead of complaining, if we do some solid work, it will be our contribution to cherish our democracy for which nearly 7 lac persons sacrificed their life during freedom movement. 

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DRT Solutions Weekly Mail – 164th Issue(2) dated 1st July ’11

(1) Attitude of Executives in India – not bound by any law – proved by Govt. & Police Action on 4th June ’11 midnight 

The Executive Action by the Police under the approval of the Govt on the  midnight of 4th June ’11  the following facts:-

(a)    As per the Constitution of India and the provisions of various existing laws, the said action prima facie is totally illegal.

(b)    The Govt through Police not only committed the said illegal act openly, it continues to justify it.

(c)    The Govt committed another illegal act by filing a wrong affidavit before the Supreme Court.

(d)    The above is borne out of inherent attitude that the Executives in India that they are not bound by any law and hence they are not afraid of any such violations. If the affected person has any problem, he has to go to the Court of Law.

(e)    In the Court of Law, the said affected person has to fight using his own money and time. On the other hand, the said Executive will fight using public money and he gets salary during the time he fights such battle.

(f)      The said Executive will fight from the lower court upto the Supreme Court using all technical provisions and hence the battle may take years and decades. Hence the Executive is not at all afraid of such violations. That is why he feels that he is not bound by any law.

(g)    In USA, all suits are decided in 9 months and no case can be filed in Higher Courts until and unless trial has established the controversial facts. In all cases, the punishment is by way of damages and jail terms and that is why the Executives are always afraid of taking law into their hands as happened on 4th June ‘11’

(h)    In Germany and few other nations, no recovery suit can be filed against a unit which is under loss or closed. The unit needs to be brought in healthy state first and then only suit can be filed. In Japan, such legal action is extremely rare. In China, no such legal action is possible. In such nations, running of the unit is paid maximum attention. The industrialist need not leave his unit, the bank and other executives have to visit them to render necessary service. In Japan, the Collector sits at a lower desk and public is given higher seat. Even in British days, the collector when writing a letter to public has to end the letter with ‘Yours most obedient servant’

(i)      Any way at present, our country is being ruled by Executives worst than the British days or other countries. Our Executives are not afraid of any law and hence their attitude is that they need not follow any law.

(j)      We do not know what trial will be conducted by the Supreme Court which has initiated a suo motu action. In our view since all the facts are available in the media video clips, the Supreme Court may come to the findings that the entry of the Police itself was illegal and unwarranted, the sufferers must be given all compensation, the activity on the Ramlila ground be allowed to be renewed at the cost of the Executives and the Govt. All persons who ordered and approved such action must be punished. If such action is not possible, the Govt must tender its resignation.

(k)    We are curiously watching whether our Constitution is in working condition or not. Till such time, we need to take following precautions.

Precautions

(a)    Since we are concerned with the defence of borrowers and guarantors in DRTs, accordingly we are highlighting the precautions for them.

(b)    The Bank Officials and the Judges are the Executives. We should never converse with them orally.

(c)    If there is any oral interaction, it must be recorded with least lapse of time which they must approve.

(d)    The said Executives are not to be trusted as they can change anytime to suit to their interest.

(e)    The Constitution and provisions of laws must be strictly applied when dealing with the said Executives.

(f)      One can not leave the things fully to intermediate agents liken the advocates. The litigants or his competent and trusted representative other than the advocate must always be present in the court of law. All proceedings must  contain the full record and certified copies be obtained periodically.

(g)    One should have sufficient financial resources to fight the battle upto the Supreme Court.

(h)    All orders must be minutely examined and if there is any defect, it should be corrected by the established process of Review and Appeal.

(i)      All orders must contain all the points pressed during the arguments otherwise the famous SC verdict in the matter of Mohd Akram vs Chief Election Commissioner must be applied.

(j)      Keeping all the above, we have been emphasizing past more than 10 years on our web site as well as in all the discussions and conferences that the legal battle in India is long drawn, time consuming and highly expensive.

 

(2) An Important Supreme Court Judgment relating to Sec 14 of the Securitisation Act – Action u/s 14 is questionable u/s 17 

The Supreme Court of India in the matter of Kanaiyalal Lalchand Sachdev vs State of Maharashtra decided on 07.02.11 has ruled that the order of the Magistrate u/s 14 can be questioned before the DRT u/s 17 of the Act.

It is relevant to note that we have been advising our clients that caveat should be filed in the Court of DM or CMM so that opportunity is extended during the proceedings in the said court. During the said opportunity, all the illegalities of the bank as well as the ‘No Debt Due’ on account of the loss and damages be emphasized and pressed. The Magistrate must cover all these points in his order. Despite these if the order is adverse, appeal should be filed u/s 17 in DRT.

 

 

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DRT Solutions Weekly Mail – 163rd Issue dated 24th June ’11


 

(1) Startling Facts about the Ram Lila Maidan Episode – Defeat of the Government   

 

The following are the startling facts about the Ram Lila Incidence happened on 5th June 2011 early hours:-

(a) Past 9 months, Swami Ramdevji toured all the States of the country covering one lac kms. It was non-stop having 2 to 4 functions every day without any break. He had direct contact with nearly ten crore people mostly villagers. Perhaps in the world history such tour of this magnitude has taken place. On account of such mass following the Govt became damn scared. During this period, there was no threat to his life.

(b) Several months in advance, he declared about the ‘Anshan’ by one lac persons at Ram Lila Ground’ on 4th June 2011.  This was  openly shown in the posters put up in and around Delhi. Even a child was fully knowing about the said Anshan – A peaceful protest. Such Anshan again has no parallel in world history. Naturally the Govt was highly scared.

(c) On 1st June when Swami Ramdevji arrived in Delhi, 4 Ministers of the government went to the airport to receive him. Further there was discussions at the airport itself for nearly 3 hours. The said 4 Ministers included Seniormost Mr. Pranav Mukherjee. These Ministers were aided by Principal Secretary and other Secretaries. Thus an army of Ministers and Secretaries were counteracted by Swami Ramdevji alone. He was well prepared with facts and figures on Black Money and Corruption based on World Bank, Transparency International, RBI etc. Mr. Ved Pratap Vaidik, a senior journalist who accompanied Swami Ramdevji in a video stated that Ramdevji was alone sufficient to deal with the said army of Ministers and Secretaries. Such welcome treatment has not been given to even to Mr. Obama, the President of America. As a whole, Swami Ramdevji was most powerful person in the eyes of the Govt. In fact the Ministers intended to please Swami Ramdevji but he was least affected as he was more bothered about the national issues of corruption and black money rather than getting pleased by the Ministers.

(d)  On 3rd, Mr. Kapil Sibbal played a mischief by taking a letter from Mr. Balkrishnaji that Govt accepts all their demands and the Anshan will be broken by 6th June. He said that since Congress Party has ridiculed the Minister and to save their faces, he desired to have such letter for showing to the Prime Minister. Both Swami Ramdevji and Balkrishnaji are simple hearted persons and they gave such letter.

(e) The Ministers tried their best but could not influence Swami Ramdevji and hence the said letter was shown to media by Kapil Sibbal. Thus there was clearcut breach of trust and hence Swami Ramdevji hardened his stand.

(f) The talks continued and again Govt sent another letter at 11 PM on 4th June stating that Govt accepts all their demands and stand committed to fulfil the same. It was just as simple reotoric. There was no effect of such letter on Swami Ramdevji. Balkrishnaji said that suitable reply will be sent in the morning.

(g) Thus Govt failed in all their scheming moves. Sensing that on 5th June, Anna Hazare was to meet Swami Ramdevji and it would be big showdown. Further being Sunday, the entire nation will view such showdown on TV, the Govt was left with no option to break the law. Hence it was a great defeat of the Govt. It is said that even schemes were prepared to kill Swami Ramdevji.

(h) The Govt is all powerful. It has huge Army, Police and Para-military forces. It has full control on the media and judiciary. It has all experts on all types of battles. It has no problem about financial resources. But such powerful Govt, became mad to take action at midnight to attack innocent old men, women and children who were deep in sleep and were fasting not for any personal cause. They were not stopping any traffic, not stopping any train, were not damaging any public property.

(i) Swami Ramdevji offered to arrest him peacefully but the Govt desired to send the mass of one lac people out of Delhi and hence they resorted to create scare by teargas shelling and water jetting and the innocent people were made to leave not only Pandal but Delhi.

(j) The best part is that Swami Ramdevji saved himself and now disheartened the Govt as to why he is alive. Swami Ramdevji was persuaded to live as otherwise the Govt acting in most criminal bend of mind would have been successful.

(k) Swami Ramdevji is back again with renewed spirit. Daily on Ashtha TV, he is dealing with all the above facts from 7AM to 8AM and 8PM to 9PM. His Yog Shivir will be resumed from 1st July. His plans for overseas Yog Shivir will be carried out. When he returns, he will resume his massive touring of the villages.

(l) He is supporting the proposed Anshan of Anna Hazare from 16th August.

(m) The persons taking part in Anshan from 16th August have been told to come prepared for the Police action just like the incidence of Ram Lila Maidan. If they are jailed, there will be country wide protest to go to Jail.

(n) All the videos and visuals are being recorded by the public and these will be used at the time of elections. Thus the forthcoming General Election will prove the mandate of the people i.e. the famous saying by a Supreme Court of USA and recalled by Justice Santosh Hegde – ‘ The highest office in a democracy is held by citizens’

 

(1) Harrowing Experience of A Borrower – Unprofessional Treatment by Advocates - Remedy   

 

On 20th June ’11, a small borrower narrated his harrowing experience. He filed his appeal u/s 17 of Securitisation Act in DRT Chennai. His advocate assured him that nothing will happen to his property till the said appeal is decided. When the case proceeded, the advocate told the borrower that the court has decided to grant stay provided Rs. one lac is paid to the bank. The borrower paid the said amount to the bank. The advocate continued telling the borrower that the case was going on as usual in the DRT. After about 7 months, a party came to the borrower to vacate his house as it was sold to him. When the borrower went to DRT, he was told that:-

(a)    The advocate never attended DRT.

(b)    There was no such order for payment of Rs. one lac to the bank.

(c)    The case was decided ex-parte.

(d)    Auction was held and the house was sold.

On further investigation, the borrower found from the bank accounts that out of the said Rs. one lac, Rs. 10,000=00 were paid to the Advocate. When the borrower told all these things to the Advocate, the said Advocate requested the borrower not to point out these facts to the DRT. Anther Advocate took up the case and with dilly dally took lot of time and then finally said the limitation for filing any appeal to DRAT was over. Obviously, the second Advocate happen to be in league with the first Advocate.

 

At this stage, the party rang to us. We advised him to write everything in his own language, go to DRT and handover the write up to the Judge personally stating as to how he was victimized by the Advocates.  

 

Our Comments   

To avoid incidents as above, we have been telling our clients to present in all proceedings, to take copies of the court proceedings, to be in touch with us just after the proceedings and before the proceedings. We all along emphasize that the stake of the client is highest and he himself has to understand everything from us and then discuss the matter with the advocate so that there are no chances of anybody misleading or deceiving. On all dates, we must ensure proper recording of proceedings. Further always written arguments be submitted. All orders must contain all the points placed during arguments. The pleadings in all submissions including interim applications must be self contained and one must prepare sufficiently in advance. With such advice, many of our clients changed the advocates till desired mode of working is achieved.

 

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DRT Solutions Weekly Mail – 162nd Issue dated 17th June ’11


 

(1) Inherent Attitude of Public Servants – Amply Illustrated by Recent Public Movements   

 

The recent public movements i.e. by Anna Hazare and Swami Ramdev have validated our long time contentions as under:-

(a)    Moghul and British attacked other countries just as thieves attack prosperous people to loot them. India was a prosperous society and hence the Moghul and British came to India to rule with a view to loot and plunder the country as it was a rich nation. The British created official organization of babus i.e. public servants to accomplish their loot and plunder. Lord Macaulay designed the education system to create army of such public servants.

(b)    The said public servants had to be obedient to their masters i.e. their seniors and British Officers. More than 150 years of British rule i.e. spanning several generations created mental make up of the said public servants to rule over the public.

(c)    British established the Judicial System to decide the disputes between the public but none can fight against the Govt., its agencies and public servants.

(d)     Such approach made the people in power and the public servants not to be afraid of the rule of law or such people and servants can indulge in open violation of law.

(e)     We got freedom. A committee under the chairmanship of Ambedkar and created our Constitution by taking the best parts of various Constitutions existing at that time in the world. They said that we have a created a world class Constitution.

(f)      The Preamble in our constitution starts with

“We, the people of India - - - to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and opportunity;

FRATERNITY assuring the dignity of the individual and the unity of the Nation;

- - do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSITITUTION.” 

(g)     The British left the country but left behind the said babus i.e. public servants. The place of British was taken by the Netas. The Netas soon in connivance of babus aped the British Rule and indulged in loot and plunder of the nation. The Constitution was a great hurdle to them and hence they did not like the public should know about it.

(h)     Had the Netas and Babus been keen to bring in Democracy, there should have been a nation wide education program to educate all Indians, children, women and men to understand ,  grasp and assimilate  the Constitution. Had such a thing would have been done, there should have been sufficient courts with well trained advocates and judges imbibed with the values laid down by our Constitution. But the Netas and Babus will never liked this to happen. As a result there is huge black money, corruption and pendency in courts.

(i)       We continue to live in British Raj with their laws to rule over the public to loot and plunder the country. Instead of the British, we have Netas and Babus.

(j)       The existence of above facts and circumstances  was seen by the nation on the late night of 4th June 2011 at Ram Lila Maidan New Delhi at mid- night when armed police attacked sleeping women, children and old person. This incidence was broadcast live by various TV channels as the media persons were also sleeping with the said gathering:-

 

(k)   The Indian Police was quite brutal with the old persons, ladies and even children.

(l)     The said persons were deep in sleep.

(m) The said persons were fasting since morning.

(n)   They came to Delhi from various cities of India. It was gathering of about one lac persons.

(o)   All of a sudden, at about 1 AM Indian Standard Time, the Indian Police (about 15,000 in numbers and armed) wakes them up, orders them to leave the Pandal, beats them with lathis, scare them with tear gas shells and water jets and made them to run out of Delhi.

(p)   Many women were mishandled, their clothes were torn, some of them were made naked and no wonder some might have been raped.

(q)   Despite injuries, the Police chased them out of Delhi. They were asked to board whatever train was leaving Delhi.

(r)    It is said that about 5000 persons may be missing.

(s)    The Indian Media is not broadcasting the horror story of sufferers and missing persons.

(t)     Such brutal and heinous action by Police on a large sleeping public has no parallel in Human History. Even in Mahabharat days, no one was attacked in night. Even in British days no such police action was done in night. All warrants for arrest were served during day time with due notice. It is to be noted that the persons were sleeping. They were fasting. They did not have any personal cause. They were not obstructing any train or were not blocking any road. They did not damage any public property. They had fundamental rights. Duty of Police is to protect the citizens. Such brutal action has been condemned globally.

(u)   Police told that they had done very little otherwise the orders from the higher ups were for much stronger, tortuous and horror action so that none should dare to come against the government.

(v)    It is a matter of record that 4 Top Ministers of Govt of India went to airport to receive Baba Ramdev and had series of dialogues from 1st June to 4th June and accordingly the activities at Ram Lila Ground were to continue upto 6th June if the Govt heeded to all the demands. On the 1st day of fast i.e. 4th June at 11:30 PM, Baba Ramdev was hoodwinked with a simple promise letter. Within half an hour he and his one lac devotees who were sleeping were asked to leave Delhi immediately. Under the Constitution, proper notice is to be given so that if required the affected person can approach to Court of Law. Police can not enter the premises at night. Male Police can not touch ladies and children. Such blatant and open violation of law by Govt of India makes the existing Govt non-existent. Country is now virtually being ruled by Goonda elements. Such persons can go to any extent. They are all out to protect their ill gotten black money. They don’t want to stop corruption. They won’t allow public to speak anything against them otherwise they will crush and destroy such opposition. When they can do so with a powerful person like Baba Ramdev, ordinary citizen can not have a voice and is living under conditions worst than British days.

(w)  The problems are more difficult and complex to solve, as the British could be made to leave the country but the Netas and Babus can not be driven out. The can misuse the law to rule over the country. They will use the tool of law and police to create scare among the masses. They will not allow any expression of dissent. They don’t want anyone to create hurdle in their amassing the black money. They don’t want to take action against the corrupt Netas and Babus. They don’t want the Judiciary to implement the Constitution.

(x)   Under the above facts and circumstances, the attitude of public servants in banks and judiciary will never change. They will help the banks and public servants in banks. They will act against the public i.e. litigant borrowers and guarantors.

(y)    Keeping the above state of affairs, we have been advising the Borrowers and Guarantors to be cautious about the Babus in Banks, Financial Institutions and Judiciary. That is why we have been advising to concentrate on the thorough pleadings and perfect trials so that there is enough records of the babus in banks and Judiciary.

(z)    The fight is now slowly coming before the public by the movements by persons like Anna Hazare and Baba Ramdev. It took more than 150 years to drive away the British. It is not known how much time it will take to make the country free from the Netas and Babus.

(aa)     We have now advance tools of technology. There are more than 70 crores of mobile phones. The public must make video record of all the talks with the Netas and public servants. Such video clips be used at the time of election.

(bb)     The litigants in DRTs may make such video records in the banks and court rooms. These video clips are the documents to be made part of the court records.

(cc)      The public must learn to record the TV Broadcast so that the clips be used at the time of elections.

(dd)     On account of modern technology of video recordings, the Netas and Babus will not be able to fool the public.

(ee)      The platform of the media will slowly bring about the constitutional values and with passage of time, the attitude of netas and babus will change.

(ff)        With passage of time, the parliament will have better stuff working for the nation and not for personal goals. Then only the British Laws will be amended for Democratic Nation. The wrong doers whether Neta or Babu will be quickly caught and punished. Then only we will be called as a free nation. The battle till then is difficult, time consuming, painful needing lot of sacrifice. Are you prepared?

 

(2) Creditor can not obtain forcible possession through police : High Court   

 

The following material has been sent to us by our Associate Mr. N.K. Sharma, ex-GM (Law):-

 

 

http://legalperspectives.blogspot.com/2011/05/creditor-cannot-obtain-forcible.html


Creditor cannot obtain forcible possession through police: High Court

In its recently reported decision, Clarity Gold Pvt. Ltd. v. State Bank of India (AIR 2011 Bom 42), the Bombay has declared that "no secured creditor can by seeking assistance of police machinery unilaterally carry out the eviction of the borrower and take over forcible possession of the secured asset". The High Court was dealing with a matter relating to debt recovery wherein it had been alleged that the possession of the assets with the help of the police without orders of the Court. While the High Court did not rule on the factual aspect, it indeed declared that it was no permissible for the creditors to obtain possession through use of force.

 

The High Court inter alia observed as under;

17 On behalf of the Petitioners, it has been urged that in the  present case possession was taken unlawfully from the Petitioners and forcibly without recourse to the provisions of Section 14. 

18 On 23 July 2010 the Bank addressed a letter to the Commissioner of Police, Mumbai stating that under Section 13(4), its authorised officer was taking necessary action in an area falling under the jurisdiction of the Malabar Hill Police Station. A request was made in the letter to direct the Police Station to provide constables for  the protection of the authorised officer of the Bank in discharging his official duties under the Act. This was followed by a letter dated 23 July 2010 to the officer incharge of the Malabar Hill Police Station. The letter also recorded that the Bank had authorised an enforcement agency to assist and take all necessary actions under the Act. At the foot of the letter, there is an endorsement to the effect that on 27 July 2010, police bandobast should be provided. After possession was taken, on 28 July 2010 a police complaint came to be lodged by the Manager Accounts and by the employees of the Petitioners. The complaint was to the following effect:

“We hereby place on record that at 3 pm today some nearly 20 people along with your API Mr. Machinder, Head Constable Mr. Patil and Constable Mr. Bhosle forcefully barged into the above mentioned address and started abusing and using the bad words. On enquiry they were telling that the State Bank of Indore have Court order to take forceful possession of the flat. We told the persons that the owner was not present and we have to take instructions. We also asked them to show the Court order to which they refused and then they started using bad language and started assaulting. Some of the unidentified person from Bank assaulted us, slapped us pushed us and they used the force and pushed us out of the house. The police was seeing this whole incident but they were standing still and did not take any action When we came to the police station the duty inspector has refused to take our complaint of physical assault and forcefully taking the possession of flat without the due of process of law.”

19 The Tribunal came to the conclusion that the Bank had taken forcible possession of the property without seeking recourse to an order of the Chief Metropolitan Magistrate under Section 14. Now, under Section 14, where the possession of any secured asset is required to be taken by the secured creditor, the secured creditor may make request in writing to the Chief Metropolitan Magistrate or the District Magistrate concerned to take possession. Thereupon, the Chief Metropolitan Magistrate or the District Magistrate is empowered to take possession of the asset and documents relating thereto and to forward them to the secured creditor. Under subsection (2) the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use or cause to be used such force as may in his opinion be necessary. Section 14 of the Act is an enabling provision under which the secured creditor is empowered to seek recourse to the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate for the purpose of taking possession. Though  section 14 is an enabling provision, it will be wholly impermissible for a secured creditor, despite the provisions of Section 14, to take the law into his own hands and to forcibly evict a borrower from the secured asset. Our legal system is governed by the rule of law. If the borrower hands over possession voluntarily to the secured creditor in pursuance of a notice under Section 13(4), it would be open to the secured creditor to take possession. But, if possession is not voluntarily handed over, the secured creditor cannot take the law into his own hands and secure vacant possession by taking recourse to the police machinery. In such an event, the only remedy that is available is to seek an appropriate order from the Chief Metropolitan Magistrate, or as the case may be, the District Magistrate.Parliament has specifically authorised in subsection (2) those authorities to take or cause to be taken such steps and use or caused to be used such force as may be necessary. Authorisation of the use of force for taking possession is therefore a matter which lies in the jurisdiction and power of the authorities prescribed by Section 14. No secured creditor can by seeking assistance of police machinery unilaterally carry out the eviction of the borrower and take over forcible possession of the secured asset.

20 Having said this, it is clear from the record, that the Debt Recovery Tribunal did, as a matter of fact enter a finding of fact that possession was forcibly taken over by a secured creditor in this case. However, the Tribunal clarified that it was not resting its decision on that finding, since quite independently the Tribunal had come to the conclusion that the notice of possession and the sale notice were invalid. When an Appeal was carried by the secured creditor, the Appellate Tribunal reversed the finding of fact of the Tribunal on issues pertaining to the service and delivery of the possession notice under Rule 8(1) and the publication of the possession notice in the newspaper under Rule 8(2). The Appellate Tribunal did not consider the correctness of the finding which was arrived at by the Tribunal that forcible possession was taken by the secured creditor. 

21 Whether forcible possession was taken by the secured creditor is essentially a question of fact to be determined on the basis of the material on the record. We are of the view that having regard to the parameters of the jurisdiction under Article 226 of the Constitution, it would only be appropriate and proper if that question is left to be decided by the Appellate Tribunal which has a fact finding jurisdiction. There being no finding of the Appellate Tribunal in that regard, we consider it appropriate and proper to remit the proceeding back to the Appellate Tribunal only on this aspect.”

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DRT Solutions Weekly Mail – 161st Issue dated 9th June ’11

 

(1) Latest ‘Directions for Sale’ laid down by Supreme Court   

 

On 14.03.11 the Supreme Court in the matter of KFC (i.e. Kerala Financial Corporation) vs Vincent Paul & Another has laid down vide following extract, the ‘Direction for Sale’ of the properties by the financial institutions and banks:-

 

(i)     The decision/intention to bring the property for sale shall be published by way of advertisement in two leading newspapers, one in vernacular   language having sufficient circulation in that locality.

 

(ii) Before conducting sale of immovable property, the authority concerned shall obtain valuation of the property from an approved valuer and in consultation with the secured creditor, fix the reserve price of the property and may sell the whole or any part of such immovable secured asset by any of the following methods:

 

(a)    by obtaining quotations from the persons dealing with similar secured assets or  otherwise interested in buying such assets; or

(b)    by inviting tenders from the public; or

(c)    by holding public auction; or

(d)   by private treaty.

Among the above modes, inviting tenders from the public or holding public auction is the best method for disposal of the properties belonging to the State.

 

(iii) The authority concerned shall serve to the borrower a notice of   30   days   for   sale   of   immovable secured assets.

 

(iv) A highest bidder in public auction cannot have a right to get the property or any privilege, unless the authority confirms the auction sale, being fully satisfied that the property   has fetched the appropriate price and there has been no collusion between the bidders. 

 

(v) In the matter of sale of public property, the dominant consideration is to secure the   best   price for the property to be sold. This can be achieved only when there is maximum public participation in the process of sale and everybody has an opportunity of making an offer. It becomes a legal obligation on the part of the authority that property be sold in such a manner that it may fetch the best price.

 

(vi) The essential ingredients of sale are correct valuation report and fixing the reserve price.     In case proper valuation has not been made and the reserve price is fixed taking into consideration the inaccurate valuation report, the intending buyers may not come forward treating the property as not worth purchase by them. 

 

       (vii) Reserve price means the price with which the public auction starts and  the auction bidders are not permitted to give bids below the said price, i.e., the minimum bid at auction.

 

       (viii) The debtor should be given a reasonable opportunity in regard to the valuation of the property sought to be sold, in absence thereof the sale would suffer from material irregularity where the debtor suffer substantial injury by the sale. 

 

Our Comments

 

(1)    It is interesting to note that this case relates to taking over the firm on 11.09.87 (24 years back) and in this judgment, the Supreme Court has found that the KFC has not followed proper procedure for sale and hence the sale was set aside. KFC was asked to return the deposit given by the buyer with interest @9% within 30 days from the date of deposit till it is repaid. Thus despite litigation past 24 years, the taking over of the assets and sale is still could not be done.

(2)    The above ‘Directions for Sale’ are to be scrupulously followed. The borrower should be very vigilant and alert and if there is any violation, it should be raised before DRT and contested till correct decision is obtained. Proper tools of Review, Appeal, Application u/s 151 of CPC should be used in DRT to highest court. If all these measures are taken, it will be very difficult for the financial institutions and banks to take over and sale any property. It will be further extremely difficult when counter-claim or damages have been filed as first the condition of ‘No Debt Due’ is to be decided. That itself will take several years. Our intention is not to cause delay but to achieve justice.

(3)    We have repeatedly expressed past more than 10 years that if pleadings are prepared perfectly and case is fought perfectly on every date, the institutions and banks can never win as they commit several wrong doings.

(4)    In the above case, the party did not file any counter-claim or damages. Had he done so, he would have been in much stronger position and ultimately would have won the case.

(5)    In view of above only we have been repeatedly emphasizing that the litigation in Indian Courts are long drawn, time consuming and expensive as the institutions and banks will fight upto the Supreme Court even for petty matters. At present 70% cases pertain to such litigations only. Judiciary says that there are more than 3 crore cases pending and it will take 320 years to clear the pendency.

(6)    In fact our entire democracy is failing because we continue to use the same system established by the British. The system was to loot the country and keep the public under rule. Just after getting independence, had there been proper (i.e. of democratic setup) rule of law, cases could have been decided quickly (In USA all suits are decided within 9 months) and guilty punished. Since the Judicial wing is so inefficient (taking decades), the corruption and black money continue to grow, no body is afraid of violations of law and those occupying the chairs of ruler will continue to loot. Hence the most important issue is ‘Earliest possible Judicial Reforms’ that alone will solve various problems like black money, corruption, police excesses etc. 

(7)    There is no shortcut to ‘Proper Judicial Reform’ We may learn from the work done and experience gained in USA and UK where they have involved public and applied modern management and technology. Since in our country the Ruler is not doing with application of mind and is against involving public, the public has started forcing it to do so.

(8)    We have been dealing with the above in a modest way in our web site since 2001, news paper articles in 2001, conferences in 2007, 2008 and 2011 and weekly mails since 2008.

 

(2) Our News Feeds in Global Cyber Media

 

We have published our personal views in form of news feeds in the following global cyber media. The said news feeds are also given below:-

 

 

http://connect.in.com/baba-ramdev/comments-263861.html

 

http://newshopper.sulekha.com/swami-ramdev-comments.htm

 

http://www.forestlaneshul.com/baba-ramdev-joining-politics-swami-ramdev-contesting-elections-latest-news-4139.html

 

http://www.torontosun.com/2011/06/06/indian-court-weighs-in-on-guru-protest

 

Posted on 06.06.11 at 9:30 PM

 

Brutal Police Action in India - There were more than 6000 armed policemen. At 12:30 PM in the night of 5th June '11, they entered the 'Ram Lila Ground' in Delhi where nearly 100,000 persons including saints, old, women, children were deep in sleep. They were on fast since morning and came from distance places from all over India. All of a sudden the said police men started beating, abusing and asking these persons to vacate the place immediately. It was a brutal and inhuman lathi charge, tear gas shelling and water jet force were mindlessly used. Incidentally more than 50 media (electronic) persons were also sleeping there. So entire worst incident of its kind was video recorded from all angles. Live telecast was made and is being repeated since then in all TV Channels in India. It was worst than the British days. Old persons, ladies and children were beaten. Clothes of many ladies were torn and removed making them naked. They were made to run to railway station and forced to board in any train. Some of sick persons were forcibly discharged from the hospitals. About 5000 persons are missing. There is wide coverage by the TV Channels for more than 24 hours, there is no effect on the Indian Govt. The reaction of Mr. Manmohan Singh is as if nothing happened. He is the person solely responsible for such police action on fasting persons and worst treatment because he has not taken any action so far. Even in Mahabharat days, there is no attack during night. Even in British days, advance notice is given for such police action. There is country wide agitation and this is the beginning of fall of Mr. Manmohan Singh and his corrupt government. This news feed is based on various videos recorded from different TV news channels. We have kept copies of the said video clips. 

 

http://www.news.com.au/world/meet-indias-political-yoga-star-swami-ramdev/story-e6frfkyi-1226069166331

 

Posted on 07.06.11 at 6:37 AM

 

 

Shame Manmohan Singh. Attacking mob of fasting old, women and children in sleep at 12:30 PM in night has no parallel even in Mahabharat or British days. Is it their  crime to agitate in peaceful manner for important national issues in a democratic country? If you feel any responsibility, please resign immediately.

 

    

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