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DRT Solutions Weekly Mail – 199th Issue
dated 2nd March ’12
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(1) ‘Borrowers Rights Forum’ needs Your Support
‘Borrowers Rights Forum’ (e-mail ID borrowersrightsforum@gmail.com )
under the guidance and advice of Dr. Suresh ( M-09959288599 ) one of our
clients from Vijaywada is fighting an exemplary battle with the Ministry of
Finance. All the borrowers and guarantors are requested to support and help
this forum so that the administrative control of the DRTs is transferred
from Ministry of Finance to Ministry of Law without further delay. It is
needless to mention that the bank lobby through the Ministry of Law has been
causing tremendous injustice to the litigant borrowers due to obvious
reasons. Despite the clear directive of the Supreme Court of India, the
Ministry of Finance continues to be a party to such injustice by
dilydallying the said transfer. Dr. Suresh has all details of the sorry
state of affairs. You may contact him and extend all out suppport for his
laudable efforts.
(2) Supreme Court dismissed the Appeal of a Govt deptt for Condonation of
Delay
Mr.
Haresh Gandhi, one of our clients from Mumbai has sent an important judgment
of the Supreme Court of India decided on 24.02.12 in the matter of ‘Office
of the Chief Post Master General vs Living Media India Ltd in which the
Supreme Court dismissed the appeal of the said Central Govt Deptt for
condonation of delay. The following extract from the said judgment are self
explanatory:-
“12) It is not in dispute
that the person(s) concerned were well aware or conversant with the issues
involved including the prescribed period of limitation for taking up the
matter by way of filing a special leave petition in this Court. They cannot
claim that they have a separate period of limitation when the Department was
possessed with competent persons familiar with court proceedings. In the
absence of plausible and acceptable explanation, we are posing a question
why the delay is to be condoned mechanically merely because the Government
or a wing of the Government is a party before us. Though we are conscious of
the fact that in a matter of condonation of delay when there was no gross
negligence or deliberate inaction or lack of bonafide, a liberal concession
has to be adopted to advance substantial justice, we are of the view that in
the facts and circumstances, the Department cannot take advantage of various
earlier decisions. The claim on account of impersonal machinery and
inherited bureaucratic methodology of making several notes cannot be
accepted in view of the modern technologies being used and available. The
law of limitation undoubtedly binds everybody including the Government.
13) In our view, it is the
right time to inform all the government bodies, their agencies and
instrumentalities that unless they have reasonable and acceptable
explanation for the delay and there was bonafide effort, there is no need to
accept the usual explanation that the file was kept pending for several
months/years due to considerable degree of procedural red-tape in the
process. The government departments are under a special obligation to ensure
that they perform their duties with diligence and commitment. Condonation of
delay is an exception and should not be used as an anticipated benefit for
government departments. The law shelters everyone under the same light and
should not be swirled for the benefit of a few. Considering the fact that
there was no proper explanation offered by the Department for the delay
except mentioning of various dates, according to us, the Department has
miserably failed to give any acceptable and cogent reasons sufficient to
condone such a huge delay.
Accordingly, the appeals are
liable to be dismissed on the ground of delay.”
DRT Solutions Weekly Mail – 198th Issue dated 24th Feb
’12
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at the top
(1) Illegal Auction (organized by the Bank Officials) foiled by the Borrower
One of our
clients from Bangalore found that the bank officials were bent upon to
dispose off the alleged secured assets hurriedly by deliberately
undervaluing the same despite DRT order that first valuation must be carried
out correctly in consultations with the borrower. Without paying any heed to
the DRT order, the bank went ahead with newspaper publication with auction
date as 23.02.12. The borrowers first sent a strong legal notice to the bank
officials including the Chairman and Mananging Director of the Bank. The
said notice contained all the illegalities and wrong doings committed by the
bank. It also mentioned that the loss and damages suffered due to the said
wrong doings was much more than the alleged claim of the bank resulting in
“No Debt Situation’ for the bank. Since there was no reply to the said legal
notice, the borrower was compelled to issue news paper advertisement in
Bangalore describing the said wrong doings of the bank and its officials. On
accout of all these actions, no buyer came forward and hence the said
auction was completely foiled. The complete matter is now being put up
before the DRT by way of detailed and exhustive SA.
It is
needless to mention that perfect pleadings including the loss and damages
suffered due to the wrong doings of the bank and its officials and perfect
contest on all the dates will create tremendous pressure on the bank
officials who will, henceforth either lose the case or will come forward for
setttlement at attractive terms for the borrower.
(2) Magistrate refuses to issue covering order for physical possession of
secured assets
One of our
clients from Nagpur informed that the bank officials illegally took physical
possession and sold the secured assets. Subsequently the said erring bank
officials approached the Magistrate to issue covering order for physical
possession. The said Magistrated refused to issue such order. The borrower
should initiate criminal action against the said bank officials as well as
file damage suit against them and the bank.
DRT Solutions Weekly Mail – 197th Issue
dated 17th Feb ’12
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(1) ‘Borrowers Rights Forum’ issues An Important and Laudable Advertisment
in ‘The Hindu’ dated 17.02.12
Dr.
Suresh, one of our clients from Vijaywads has informed that the ‘Borrowers’
Rights Forum’ has issued the following advertisement to be published in ‘The
Hindu’ on 17.02.12. The e-mail ID of the said Forum isborrowersrightsforum@gmail.com
The
continuous efforts made by this Forum should be appreciated by one and all.
All
the borrowers are requested to join their hands with this Forum and contact
them at the said e-mail ID.
MINISTRY
OF FINANCE IN CONTEMPT
DELIBERATELY IGNORES
HON
SUPREME COURT DIRECTIVES
· Separation
of Executive and Judiciary as provided for in Constitution and the
question of Judicial Independence, appointments, safety of tenure,
termination, funding for salaries, benefits and facilities of all
Tribunals was clarified by the Constitutional Bench of the Hon Supreme
Court of India.
· In
a landmark judgment ( 2010 INDLAW SC 405), a Constitutional Bench of Hon
Supreme Court made the following orders . Para
56 (xiii)…The Administrative support for all Tribunals should be from
the Ministry of Law & Justice. Neither the Tribunals nor its members
shall seek or be provided with facilities from the respective sponsoring
or parent Ministries or concerned Department.
· In
contempt of said judgment Ministry of Finance even after one and half
years still continues its administrative control of Debt Recovery
Tribunal (DRT).
· Ministry
of Finance own the Banks and Ministry officials are appointed as Board
Directors of Banks and as Board Members they authorize claims of debt to
be filed by the Banks in DRT under RDDBFI Act. At the same time
Ministry of Finance officials have administrative control of Judicial
Officers of DRT including powers to recruit/suspend the Presiding
Officers of DRT.
· If
any Presiding Officer of DRT does not toe the line of the banks,
complaints are directly written to the Ministry of Finance by the Banks
against the Presiding Officers. No action has been taken against the
Bank officials for writing complaints against Presiding Officers and
Chairpersons who are deemed to be Judicial Officers. On the contrary in
some instances the Ministry of Finance officials have suspended
Presiding Officers based on complaints from Banks. Clearly, fear of
suspension by Ministry of Finance prevents the Presiding Officers who
are Judicial Officers from conducting fair and free trial even in cases
where the banks have acted illegally.
· Conflict
of interest is obvious as Ministry of Finance officials are in control
of both litigants (i.e. Banks) and adjudicator i.e. the Judicial
Officers of DRT. Because of this unconstitutional cozy relationship
between Banks and DRT officials, free and fair trial guaranteed under
Constitution is being denied.
· Are
citizens not entitled to a free and fair trial as directed by Hon
Supreme Court?
· What
can a borrower do when he does not get free & fair trial because
Ministry of Finance deliberately ignores to implement Hon Supreme Court
directives?
(2) DRT Nagpur passes Orders favouring Borrower in respect of Inspection of
Documents and joint hearing of OA having Counter-claim with the SA
Mr. Bharat Gandhi, Advocate, Mumbai who is handling case of one of our
clients at DRT Nagpur has sent us following two orders:-
(a)Regarding Inspection, interrogations and production of document in
respect of the SA:- The DRT ordered on 20.12.11 that the documents from Sl
No 1 to 22 be supplied to the borrower. In respect of certain specifed
documents, the same be inspected with the record of the bank. Remaining
documents are not allowed as the same are available with the RBI web site.
(b) Adjudicating Counter-claim in the OA and SA together:- Basing an earlier
order dated 28.04.08 of DRAT Mumbai which held that if the counter-claim is
filed in the OA and SA is also filed then both the applications as well as
the SA should be heard together, on 20.12.11, the DRT decided that the dates
for hearing in the OA as well as SA including counter-claim are being fixed
on the same date.
------------------------------------------------------------------------------------------------------------------------------------
Note:- Mr.
Ram Kishan will be out of Indore from 17th Feb
A.N. to 21st Feb ’12
morning. However as usual he will be available on mobile and net.
DRT Solutions Weekly Mail – 196th Issue
dated 10th Feb ’12
All Weekly mails right from 1st Issue to latest, click links
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(1) Wilful Defaulter – Declaration thereof - Our Client scores Victory over
Banks
Bank
declared one of our clients from Mumbai, a willful defaulter. On
examination, it was found that the bank did not follow the prescribed RBI
Guidelines. We advised our client to file a delcaratory suit against the
bank and its officials. When the bank was to submit the written statement,
the bank decided to withdraw the notice declaring the borrower as wilful
defaulter and requested the court accordingly. The borrower then withdrew
the suit and on 21.01.12, the court ordered that the suit stands disposed
off as withdrawn. This is a noteworthy victory for the borrower. The
complete proceedings are contained in Short Cause suit no 1823 of 2009 in
City Civil Court at Dindoshi (Borivili Div) in the matter of National Flask
Industries Ltd vs Saraswat Co-operative Bank and other 3 banks.
(2) Publication of Photo of Defaulting Borrower may amount to Defamation
The
banks have decided to publish the photos of the defaulting borrowers in the
newspapers to pressurize them for repayment of loans vide news item “Your
Pic to Make ‘News’ in Papers” vide Page 6 in the Economic Times dated
04.02.12. One of clients at Indore received such a notice. We asked our
client to reply to the bank (and all the concerned officials including the
Chairman) that such action amounts to defamation and accordingly our client
will initiate civil as well as criminal action against them.
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DRT Solutions Weekly Mail – 195th Issue
dated 3rd Feb ’12
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(1) Advice to DRT Advocates
Several of our clients narrate their sad experience with their bank
litigation. Our views are as under:-
(a) Since
the borrower was not having the required funds for the project, he had to
approach the bank to obtain the said fund as loan. His scheme or the project
was technically and financially appraised by the experts of the bank and
when it was found technically and financially viable, the said loan was
sanctioned. The main security was the financial viability of the project
i.e. the loan and its interest would be paid out of the surplus generation
which was the main security.
(b) Any
business will have ups and downs. In the absence of surplus generation, the
duty of the bank should have been to restructure, revive or rehabilitate
till surplus generation is achieved.
(c) In
the event of both the above situations, no security, collateral or personal
guarantee is required. In fact on account of such securities, the banks
adopt easy option of encashing the said securities. Had such securities were
not taken, the bank will have to pursue the course of restructuring,
reviving or rehabilitating till surplus generation is achieved.
(d) The
above were the main aim or objective of nationalization of banks in 1969 and
hence calling for the collateral, personal gurantee or other securities goes
against the spirit, objective and legal foundation of the said bank
nationalization. The advocates and the legal community need to grasp this
basic foundation for bank and borrower relationship in our country.
(e) On
account of above violations and lack of understanding, the borrower becomes
an innocentsufferer as he or his advocates are not aware of the said
violations. He is like a patient having acute pain. He comes to the advocate
just like the patient approaches a doctor to get relief. He should be
attended to by the advocaters just like a doctor attends his patients.
(f) He
needs listening sympathetically.
Efforts be made to obtain immediate relief he needs. He should be told
frankly and honestly what can be done and what can not be done.
(g) He
should be told and explained the
overall litigation process and the costs involved. He must understand
clearly whether he can afford the costs and expanses.
(h) The
advocates need to do lot of research and study in the relevant aspects of
banking, industry, finance, law of torts, law of damages, law of pleadings,
law of evidence, principles of natural justice, procedural law etc. Since
the DRTs, DRT Act, Securitisation Act are of recent origin, there is
continuous legal developments which require constant and continuous studies.
There is no substitute or avoidance of all these for a true professional
advocate. Any lapse or shortfall in the approach wil result in such judicial
orders which will become final and reversal may not be possible. On account
of all these factors, such services will not be cheap otherwise, the
litigant will suffer and the ultimate objective of the judical process i.e.
justice will not be achieved.
(i) We
explain all these facts to our clients right from the inception as well as
remind him during the process of the litigation. Accordingly we have been
preparing thorough pledings including counter-claims based on law of torts
and damages. As a result most of our clients could achieve satisfying
results. Many of our clients have been instrumental in getting several
clients from their circle. On account of all India exposure as well as NRI
guarantors, our knowledge base has been and is getting continuously enriched
day by day. Many advocates of our clients have accordingly been greatly
benefited and their practice zoomed in their DRTs. Let us have a proactive
role so that monumental and leading judgments are achieved which will
benefit those borrowers who are financially weak for the expensive legal
process.
(2) One of our clients declared Indigent Person
One
of our clients came to us after bank litigation of 21 years. He lost his
factory as well as his house. We prepared damage suit against the bank and
the same was filed as an Indigent Person as he was not having resources for
payment of court fee of Rs. 1.5 lac. After thorough trial of several months,
the court declared him an Indigent Person and now his damage suit will
proceed accordingly.
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DRT Solutions Weekly Mail – 194th Issue
dated 27th Jan ’12
All Weekly mails right from 1st Issue to latest, click links
below:-
(1) Borrowers’ Defence – Counter-claim – Queries by the Judiciary
Recently, one of our client’s case reached upto the Supreme Court in the
matter of an SLP filed by the Bank. During the hearing, the Supreme Court
Judge asked some questions. Our comments are as under:-
(a) The
bank dues were about Rs. 90 crores whereas the damage suit filed by the
borrower is for Rs. 1900 crores. The Judge enquired as to how such huge
amount of damages could take place and what was the court fee.
Our Comments:-
The damages have been arrived at by the application of law of damages and
the amount of damages are based on direct loss, business opportunity loss,
mental tension, loss of image and reputatiton, aggravated damages and
exemplary damages. The calculations are on the basis of project report,
performance and balance sheets. The figure of Rs. 1900 crores is the maximum
amount permissible by the application of law of damages. The borrower will
prove these figures during the trial. The court fee paid was Rs. 3000=00
which is the maximum fee prescribed in Union Territories. Such queries may
be made but it carries no weight till the trial is completed.
(b) The
Judge further enquired about the Securitisation Notice issued by the bank.
Our Comments:-
The bank lost the said notice in the DRT it has appealed to DRAT. On one
hand the bank has lost its recovery case and the damage suit filed by the
borrower is pending in the civil court. Under such facts and circumstances,
the bank is not entitled to initiate any recovery action. This is one of
such cases, where our client has stuck to our guidance and advice past 6
years. It is needless to mention that the bank will continue to fight upto
the Supreme Court but if one sticks to the law and procedure of law, the
erring bank is bound to fail. This is the power of knowledge which calls for
perfect pleadings and perfect contesting on every date.
(2) Appeal Case relating to Chief Justice of India – Pending in Court past
37 years
In 19th Jan
internet issue of ‘The Hindu’, a news item appeared with the title ’37 years
after attempt on A.N. Ray’s life, case still stuck at appeals stage’ This
case pertains to A.N. Ray, former Chief Justice of India who was travelling
along with his son. In 1975 his car was stopped near the Supreme Court and
two live grenades were lobbed into his vehicle. Fortunately the grenades did
not explode. This case even after 37 years is still going on at the appeal
stage. On 19.01.12 hearing, a bench of Justice Aftab Alam and Ranjana Desai
said “We are constrained to say that we are distressed beyond words to find
that the case - - remains stuck at the stage of appeal even after about 37
years of the ocurrance.”
Our
Comments:-
The state of affairs in the Judiciary is highly deplorable. Incidence
occurring with the Chief Justice of India near to the Supreme Court in Court
of law in Delhi has taken more than 37 years at the appeal stage, what more
one can think about other cases for the common man. The litigants die and
generations may pass before getting the final verdict. That is why sitting
Judge of Andhra High Court has said that it will take more than 320 years to
clear the pendency of 3 crore cases in the country. Justice V.R. Krishna
Iyer has rightly said that we are 200 years behind the developed countries.
On account of all these factors, we have been stating all these years that
if perfect pleadings are made including that of the counter-claim and the
cases are contested perfectly on all dates, the banks can never win their
recovery cases.
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DRT Solutions Weekly Mail – 193rd Issue
dated 20th Jan ’12
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below:-
(1) Appeal and Review
A
reference was made to Full Bench of Allahabad High Court in whether the
filing of an appeal subsequent to the filing of an application for review
makes the hearing of the review application incompetent. The matter was
exhaustively examined right from provisions of CPC of 1859 and citations
ranging from 1857 to 1937. It is one of the master piece references and the
legal content has stood test of the time till today. The citation is AIR
1948 Allahabad 353, Behari Lal vs M.M. Gobardhan Lal. Important extracts
from the said judgment are as under:-
(a) “A
review is perfectly distinct from
an appeal, the primary intention of granting a review was a reconsideration
of the same question by the same Judge, as contradistinguished to an appeal
wbioh is a hearing before another tribunal. We do not say that there might
not be cases in which a review might take place before another and a
different Judge; because death or some other unexpected or unavoidable cause
might prevent the Judge who made
the decision from reviewing it; but
we do say that such exceptions are allowable only ex
necsssitate. We
do say that, in all practicable cases, the same Judge ought to review.”
(quoted from Report from the Judicial Committee of 1857)
(b) The
powers of an appellate Court are to be found enumerated in S.
107 read with O. 41, Civil
P. C. The grounds which would justify a Court to entertain an application
for review have, on the other hand, been laid down in S.
114 read with O. 47,
R. l, Civil P. C. Order 47,
R. 1 is a reproduction of S.
623 of the Code of 1882 which
is substantially the same as S.
376 of the Code of 1859.
(c) The crucial date
is the filing of the application for review. If on that date the appellate
Court has no appeal pending before it, the review application is under the
Code, as it stands, competent. The power to entertain the review remains in
existence till such period as the appeal is not heard and disposed of. After
the appeal has been heard and a decree passed by the appellate Court, it is
not open to the Court before whom the application for review was presented
to proceed with its hearing, But where an application for review comes to be
heard and decided before the appeal is hoard and finally disposed of, the
position is that it is incompetent for the appellate Court to hear the
appeal for the new decree is, in that case, held to supersede the decree
appealed from.
(d) It
is clear that, If a review be applied for in proper time and before an
appeal has been preferred the Judge is not prevented from proceeding upon
the application for review by the subsequent presentation of appeal and he
has full power,
and is bound to proceed under the application for review. This
was a case under the Code of 1869, but
substantially there has boon no change in the sections relating to review
in the Codo of 1908.
(e) The
fact that an aggrieved party presents an appeal to the superior Court
subsequent to the presentation of an application for review to the Court
which decided the case is not sufficient, under any provision of the Code,
to take away the right of having
his review application heard and disposed of, if it comes up for hearing
and disposal before his appeal has been heard and disposed of. Where a right
has been conferred upon a person and a Court has boon vested with
jurisdiction in a certain class of cases, that right and jurisdiction cannot
be taken away or cut down except, by express words or necessary implication.
(f) The fact
must be remembered that
review jurisdiction had
its origin in Courts of equity
in England which, upon being satisfied that
new matter had come
to the knowledge of
the applicant and
his agents at a
time when ho could not have
made use of it in
the action, that it
could not by reasonable diligence havebeen discovered sooner
and that it was of such a
character that, if brought forward
in the action, it would probably have altered the judgment, used to allow
what was virtually
a re-hearing of the case.
Our Comments
In our
country there is no perfection in
pleadings and trial on every date. Everybody is in a hurry to dispose the
matter as early as possible. This is how majority of judgments and orders
are defective calling for review. But most of the advocates and judges are
not in favour of review and hence the said defects are carried on resulting
into defective trials, judgments and hence injustice. Even the review
petitions are not handled thoroughly. We have been emphasizing all these
aspects past 20 years. Hence there has been some awakening but we have to go
far till perfect trials are achieved on all dates. In such context, the
review is a very important remedy and study of above judgment will be quite
beneficial.
(2) DRT (i.e. Trials court), DRAT, High Court and Supreme Court
In
any bank litigation, the facts are to be first judicially established. This
is only possible in DRT which is a trial court. Until and unless, this has
been done, one should never approach the higher courts. In bank litigations,
the facts are contained in the documents i.e. those executed as well as in
correspondence apart from financial applications, appraisal reports and
sanctions etc. That is why we have insisting for production and inspection
of documents. The remaining facts are to be established by cross-examination
of bank officials. Hence until and unless all the material documents have
been brought in the court records and bank officials have been
cross-examined, the case can not proceed further or should never be taken to
higher courts. Since numerous material facts are to be established through
documents and cross-examination and that is through the unwilling bank
burearucracy which will oppose and deny at all stages, the whole trial in
DRT itself will take several years. Any amount of pressure or hurry will
only spoil the trial resulting into injustice which will not be remedied by
the higher courts as the said courts are also in hurry to dispose off the
matter. We have been emphasizing all these aspects and in this context, the
counter-claim or damage claim becomes the only defence for the borrower.
Thus perfect pleadings right from the beginning and perfect trials on every
date with the defence of counter-claim or damage claim is the most essential
requirement in any bank litigation for the borrower to attain ultimate
justice.
DRT Solutions Weekly Mail – 192nd Issue
dated 13th Jan ’12
All Weekly mails right from 1st Issue to latest, click links
below:-
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at top of this page
(1) Sufferings due to Lack of Knowledge, Alertness and Vigilance on part of
Borrowers
Many
borrowers approach us with their problems. In many cases, it is revealed
that some of them suffer on account of lack of knowledge, alertness and
vigilance on their part. Our observations and comments are as under:-
(a) So
long as there is wealth generation, interest payment and repayments are in
time: the borrowers feel that there are no problems. Many of them make
mistakes here. One should create cash reserves for bad time in future. Such
reserves should be available in form of liquid cash or the investment of
such reserves should be suchs that conversion to cash is possible
immediately in time of need.
(b) As
soon as there is any sign of downturn, one should become extremely careful,
alert and vigilant to save and enhance the said cash reserve.
(c) All
dealings with the banks should be in writing or important happenings should
be translated into writing.
(d) Never
get agitated during the meetings with the bank officials. Never sign any
paper without understanding implications of the same. Before signing ensure
that a certified copy will be given.
(e) Study
the relevant laws under which the bank will intiate recovery actions.
(f) Before
appointing an advocate, visit his office, home and discuss his performance
with some of his exisiting clients. Attend hearings and watch his court
performance.
(g) Discuss
your case with him thoroughly and observe his response.
(h) Be
watchful on the future course of actions by the bank and prepare safeguards
in advance.
(i) It
is needless to mention that hangover of British days still continues in govt
offices, bankers and court rooms.
(j) Keeping
all the above in view, we have been furnishing lot of useful and relevant
knowledge in our website, phone discussions and personal meetings. Our
weekly mails centre round the practical aspects of all these matters. Our
conferences deal with such subjects which are practical useful. Since we
have been concentrating mainly on the defence of borrowers and guarantors
since 1989 and accordingly we have done lot of research, our approach has
brought many reliefs to the borrowers and guaranators facing litigations in
DRTs and other courts. It’s a continuous process and with the application
and adoption of modern technology, the things will continue to be better and
better.
(k) We
have found that those who have paid attention to all the above aspects are
able to face the challenges and come out of the difficulties. It there are
sufferings, they are mainly due to lack of knowledge, alertness and
vigilance.
(2) Law of Limitation
The
following aspects will be useful in understanding the foundation of Law of
Limitation in India:-
(1) INTRODUCTION -
It is for general welfare that a period be put on litigation. Moreover,
there should be certainty in law and matters cannot be kept in suspense
indefinably. It is, therefore, provided that Courts of Law cannot be
approached beyond fixed period. Such periods are provided in ‘Limitation
Act, 1963’.
(2) BAR
OF LIMITATION –
Subject to provisions of sections 4 to 24 of the Act (i.e. Limitation
Act),every suit instituted, appeal preferred and application made after the
‘prescribed period’ shall be dismissed, although limitation has not been set
up as a defence. [section 3(1)]. - - ‘Period of limitation’ means the period
of limitation prescribed for any suit, appeal or application by the schedule
to the Act and ‘prescribed period’ means the period of limitation computed
as per provision s of the Act. [section 2(j)].
(3) LAW
OF LIMITATION ONLY BARS REMEDY, BUT DOES NOT EXTINGUISH THE RIGHT -
In Bombay Dyeing and Mfg Co.
Ltd. v. State
of Bombay AIR 1958 SC 328 =
1958 SCR 1122 (SC Constitution Bench), it was held that the law of
limitation only bars the remedy of approaching the court of law. However,
it does not extinguish the right as such.
(4) LIMITATION
IN CRIMINAL MATTERS -
As per section 468 of Cr PC, Court cannot take cognizance of offence after
expiry of following limitation period - (a) Six months, if the offence is
punishable only with fine (b) One year, if the offence is punishable with
imprisonment for a term not exceeding one year (c) three years, if the
offence is punishable with imprisonment for a term not exceeding three
years.
(5) LIMITATION
IN CRIMINAL MATTERS – IMPORTANT SUPREME COURT JUDGMENT –
In the matter of Shakuntala
Devi & Ors vs Chamru Mahto & Anr vide
citation AIR 2009 Supreme
Court 2075 (photocopy
attached), it was held that since no period of limitation is prescribed for
an application (MJC) for implementation of the order passed under 138 NI
Act, the same ought to have been filed within a period of three years from
the date of the order otherwise it would be beyond limitation under the
provision of Art. 137 of the Limitation Act.
(6) LIMITATION
IN QUASY CRIMINAL MATTERS LIKE 138 OF NI ACT CRIMINAL MATTERS –
Basically the objective of 138 NI Act is definite honouring of a cheque, a
negotiable instrument representing a financial transaction and commitment.
Since the adjudication has been brought under Criminal Court without any
specific provision of limitation, application of the Limitation Act and the
law laid down by the Supreme Court will lead to Art. 137 of the Schedule of
the Limitation Act i.e. 3 years.
(7) HISTORY
OF LAW OF LIMITATION IN INDIA –
Following extract from the 193rd Report
of the Law Commission of India are relevant:-
LAW COMMISSION OF INDIA, 193RD REPORT ON
TRANSNATIONAL LITIGATION – CONFLICT OF LAWS – LAW OF LIMITATION JUNE 2005
In the forwarding letter to the Govt, the
Chairman of the Commission mentioned –
“It has become necessary to take notice
of the fundamental changes in the law of limitation in all common law
countries. Traditionally, all the common-law countries have been treating
the laws of limitation, even in the context of International Litigation as
‘procedural’ whereas in the civil law systems limitation laws are treated as
‘substantive’. In the countries treating the limitation law as ‘procedural’,
the legal remedy gets barred after the expiry of the period of limitation,
gets barred while the right still remains notionally. But in the countries
which treat the limitation law as ‘substantive’ the substantive right also
gets extinguished in addition to the extinguishment of the judicial remedy.”
“Going back into history
briefly, we may state that before the year 1862, there was no law of
limitation applicable to the whole of India. The English law of Limitation,
as contained in 21 James I C and 4 Anne c 16(1) was adopted when the British
established the Supreme Court of Judicature at Calcutta. So far as the
Provincial Courts were concerned, they were initially governed by certain
Regulations like the Bengal Regulation III (1793), which was extended to
certain other provinces by Regulation VII (1795), Regulation II (1803) and
Regulation II, 1805; the Regulation II of 1802 applied to Madras and
Regulation I of 1800 and Regulation V of 1827 applied to Bombay. They were
replaced by the Limitation Act I of 1845, then by Act XIII of 1848 and Act
XI of 1859. Then in 1871, the Limitation Act IX of 1871 was passed providing
for the limitation of suits, appeals and certain applications to Courts and
also providing for the acquisition of easements and the extinguishment of
rights to land and hereditary offices. The Act IX of 1871 was replaced by
Act XV of 1877 which provided for the extinguishment of rights not only to
land and hereditary offices but also to any property including moveable
property. It also defined ‘easement’ as including ‘profits a prendre’.
That Act was replaced by the Act of 1908. The 1908 Act was amended from time
to time. The Third Report of the Law Commission of India resulted, as stated
earlier, in the present Limitation Act of 1963, repealing the Act of 1908.”
DRT Solutions Weekly Mail – 191st Issue
dated 6th Jan ’12
All Weekly mails right from 1st Issue to latest, click links
at top of this page
(1) Notice in Legal Matters
Legal
Notice is served under the following facts and circumstances:-
(a) There
are several statutes which prescribe serving of notice e.g. Sec 80 of CPC
for the Govt and Public Officers; Sec 115 of ‘Multi-State Co-operative
Societites Act, 2002 against the multi-State Co-operative Society or any of
its officers etc.
(b) When
there is no statutory provision, legal notice is not necessary.
(c) By
serving legal notice, one can claim the costs of the proceedings otherwise
not.
(d) Important
facts and circumstances leading to the dispute or claim need to be mentioned
in the notice in general terms.
(2) Defamation committed by Excise Deptt in collusion with a Newspaper Group
One
of our acquaintances suffered injury of Defamation under the Law of Torts by
the officials of the Excise Deptt. It was found that the said wrong doings
committed by the said government public servants were in collusion with a
Newspaper group. Legal Notice was served on 04.01.12 on the Excise Deptt in
Union of India, its concerned public servants as well as the said Newspaper
Group claiming damages of Rs. 1400 crores. It is relevant to note that the
injury of Defamation under the Law of Torts is highly advanced in developed
countries and leading judgments are available past 600 years i.e. since
1600.
In
our country civil law relating to damages for defamation has not been
developed due to long foreign rule by Moghuls and British. Recently a civil
court has awarded decree of Rs. 100 crores against the news channel ‘Times
Now’ vide Sunday Times dated 09.10.11. There is only one Indian book
exclusively on ‘Law of Defamation and Malicious Prosecution’ published in
2011. However all the books on ‘Law of Torts’ deal with Defamation as a
separate chapter.
In
criminal law ‘Defamation’ is dealt under Sec 499 of ‘The Indian Penal Code’
of 1860.
