DRT Solutions - Weekly Mails - 21st to 30th Issues

In the matter of one of our clients from Mumbai, an important precedent has been revealed as under:-

Under similar circumstances, the OA No 1194/2000 was dismissed by the DRT III, Mumbai on 27.03.03 in the matter of Indian Bank vs Jems Metals P Ltd. The Appeal No 109/2003 filed by the bank in DRAT Mumbai was also dismissed on 31.03.04 vide details in citation 2004(4) ALL MR(JOURNAL) 19. The bank filed writ petition no 867/2005 before High Court of Judicature at Bombay. During the proceedings held on 07.12.07, the counsel of the Bank sought adjournment with the information that the Bank was seeking instructions from its Head Office to settle the matter. On 07.01.08, further adjournment was desired as the matter was under considerations of the higher bank authorities. The said writ petition is still pending waiting for the settlement initiated at the instance of the petitioner i.e. the Bank.

In view of above, on account of defects in the accounts and its incorrect presentations, OAs filed by the Banks in DRTs Mumbai are destined to be dismissed as the law has been well settled.

The Banks have no options but to correct their accounts and present the same as laid down in the well settled law and procedure of law. The balance sheets of the banks will have to be corrected in accordance with Companies Act 1956. If such defects continue to exist, the banks will have to take actions against the erring officials and auditors. The huge professional charges being paid for audits also become questionable as such audits are conducted within a day or two in a hurried manner at the fag end of the year.

The present Judicial System has originated from Greek and Romans and have passed through France and UK. Following working of the American US system will reveal as to how much they have improved and comparatively how much we have deteriorated:-

(a) In US Supreme Court, there is only one bench consisting of 9 judges headed by the Chief Justice.

(b) Only two cases are taken up in a day. Further only 6 cases are taken up in week and only 12 cases in a month. There are no adjournments.

(c) Exhaustive Brief on a case (may run in hundreds of pages) with exhaustive Index (may run in several pages giving reference of page no and line no) is submitted months in advance.

(d) Maximum permitted time for argument per case is one hour. During this time, the Judges ask several questions. The complete arguments are recorded in form of audio and video. The said argument is simultaneously transcribed with exhaustive index. The complete argument – audio, video and transcription appears on the web site on the same day in the evening. It is pertinent to note that the Court Room Videos are being recorded in USA since 1970.

(e) The full bench of 9 judges have series of discussions among themselves and after thorough research, the final judgment is prepared. There is no time limit for award of the judgment. The only criteria is thoroughness and perfection.

(f) We can well compare Indian Judicial System and draw our own conclusions on the real implementation of the verdicts of our Supreme Court that ‘The first duty of the Courts is to do Justice – Courts must endeavor to find the truth – Justice is a virtue which transcends all barriers – Even the law bends before justice – the function of a judicial trial is to hear and decide a matter in contest between the parties in open court in the presence of parties according to the procedure and rules of evidence etc.’

(g) In view of above, the Indian Judiciary needs improved management and application of modern technology. Accordingly the DRT Conference held at Indore dealt with these aspects. We are also trying to introduce the same in DRT Court cases of our clients. The emphasis on Review has been to achieve thoroughness in the trial. We are also developing exhaustive briefs with index as well as video arguments. All these measures have started bringing better results in the DRTs. When these cases come to the level of High Court and Supreme Court, the thorough trials will be useful to our clients.

In the matter of one of our clients from Mumbai, a particular AGM of the bank committed wrong doings and initiated illegal recovery actions as well as threatened to declare the company as ‘willful defaulter’ Despite legal proceedings, the said AGM of the bank continued to harass the borrower. There was no alternative but to commence criminal proceedings against him. When an exhaustive notice was served, the said AGM did not submit any reply. The bank also informed that the matter is being considered by the Head Office of the bank. Now a criminal complaint is being filed against the said AGM.

The DRT Jabalpur has been without any PO and Recovery Officer for past several months. Now the PO DRT Lucknow has been asked to look after the duties of DRT Allahabad and Jabalpur. Thus one PO will be looking after 3 DRTs. We have asked our clients to be very careful so that quick disposal do not endanger their cases.

Despite our repeated emphasis, the Appeal u/s 17 of the Securitisation Act is not being contested as a suit. As per the law laid down by the Supreme Court in the matter of Mardia Chemicals, the said word appeal in Sec 17 is a misnomer and it is an original action akin to a suit. The litigant borrowers and guarantors should ensure the complete proceedings of a suit viz discovery of documents, framing of issues, cross-examination etc. If any counter-claim has been filed, no recovery action can be taken, till the said counter-claim has been decided.

In the matter of one of our clients from Madurai, the case in DRT is going on for more than ten years. When the party came in touch with us, we guided them in such a manner so that the facts are first determined judicially. Since our approach is based strictly on law and procedure of law, it was resulting in more time due to greater thorough and more accurate work in DRT itself. This was not liked by the PO and hence he started behaving erratically. We advised our client to cover everything in writing. The said PO was unable to dispose off certain interim application properly and in some cases, his orders had ingredients of Review. When Review Petition was filed, the said PO got infuriated and fixed the date for final arguments even without disposing off the interim applications.

In the matter of certain other clients also we found that the cases are hurried up as above without following the law and procedure of law. The parties are asked to submit there pleadings and proof affidavits, after which the dates are fixed for final arguments.

The courts including DRTs have been established for awarding justice. The original recommendation in Tiwari Committee Report published by RBI in 1984 at page 77 was that the proposed DRTs should be manned by persons having specialized knowledge in the functioning of banks, financial institutions and industry. So far since 1993 such persons have not yet been posted, the POs with only legal background will take more time. Further the procedure in DRTs is in the evolving stage, it will take more time even compared with civil courts.

The practice of the banks to submit general and evasive denials further complicate the matters resulting into inspection of documents and cross examination of bank officials.

Until and unless the pleadings have been transformed into ‘Undisputed Facts on Record’. and issues have been framed, no final arguments can take place. If the PO pressurizes, everything must be put down in a written submission with legal provisions stating that such pressure will amount to injustice. Despite if he goes ahead with ordering final arguments, his orders must be subjected to Review and Appeal as well as change in court.

The DRT Defendant Litigants should not fall in the trap of quick disposal by which the final orders in DRTs are first quickly issued. The trap is revealed when the borrowers point out the deficiencies in trial, the higher courts only support the lower court or blame the appellants for not getting the trial properly conducted.

In one of the case, the Supreme Court blamed the Appellant for not reviewing the order of the High Court as well as slapped a cost of Rs. 25,000=00

On account of above, we have been repeatedly advising our clients to be thorough on every date and if there is any violation of law in any order, go for Review, Change in Court and Appeal. The existing legal battle for borrowers is long drawn, highly time consuming and expensive. If it is hurried, it will be only against the borrower and not the bank.

In the matter of one of our clients at Madurai, the amendment to Counter-claim has been filed after several years. The law relating to amendment to pleadings is contained in O-6 R-17 of CPC 1908. There are numerous authorities on this subject.

In the matter of one of our clients at Bangalore, the final order passed by the DRT Bangalore is found having several ingredients of Review and hence we have advised the said client to first file Review and then Appeal within the limitation of Appeal. Both the remedies are available. First Review is to be decided and till then the Appeal has to wait.

One of our clients at Ranchi asked us as to how he can liquidate the inventory during the ongoing litigation. He has already filed counter-claim which is much more than the alleged claim of the bank. We have advised him that since there is no debt due, no recovery action can be taken till the counter-claim is decided and hence he should run his business and liquidate the inventory.

One of the recipients of our Weekly Mails enquired about the action to be initiated against the bank in the threatened action to declare the borrower as ‘Willful Defaulter’ We have advised him that out of the three proposed actions viz DRT, Writ and Civil Court, the best course of action is to file ‘Injunction and Declaratory Suit’ in civil court which alone gives the scope for full trial. In fact, we have done so in respect of one of our clients at Mumbai.

Our Weekly Mails are scheduled to be issued and published on the web site on every Friday morning 6AM. But on 27^th November morning, Mr. Ram Kishan will be traveling out of Indore for few days, it has been decided to prepone this issue of the Weekly Mail by a day.

In the matter of Canara Bank vs Makers & Sellers Union, OA No 805/1997, the DRT Bangalore in its order dated 11.11.08 has awarded counter-claim of Rs. 33.96 lacs with interest @ 12% p.a. with quarterly rest from the date of application till the date of realization.

In the matter of Bank of Maharashtra vs Parvati Farms (Pune) Pvt. Ltd. OA No 935P/2001, the DRT Pune in its order date 13.10.08 has opined that the bank is to be blamed 60% and hence if the claim of the bank is reduced 60%, it would compensate the defendant loss.

Thus as may be seen from the above mentioned two cases, the DRTs have started noticing the wrong doings of the bank which are forcing the borrowers and guarantors to file their counter-claims and damage suits. In due course of time, the DRTs will have a better understanding of law of torts and law of damages and more such cases will be decided in favour of bank victims.

One of our clients at Mumbai submitted an application for ‘Dismissal of OA’ in DRT. The counsel of the applicant Bank requested for further time for submitting the reply. Under similar circumstances, the OA No 1194/2000 was dismissed by the DRT III, Mumbai on 27.03.03 in the matter of Indian Bank vs Jems Metals P Ltd. The Appeal No 109/2003 filed by the bank in DRAT Mumbai was also dismissed on 31.03.04 vide details in citation 2004(4) ALL MR(JOURNAL) 19. This information will be useful to all such litigants who have filed similar applications.

We have found that in almost all the cases, the accounts maintained by the banks are defective. Time is not far when the banks will have to rectify their accounts before filing the OA in DRTs.

The banks will also be made to realize that they have to abide by the law in all their dealings otherwise their recoveries through DRTs will also be meeting the same fate as in civil courts.

Many of our clients have pointed out that in DRTs, their cases are hurried up and just after the pleadings and proof affidavits, the cases are fixed up for final arguments.

The above procedure is totally wrong. It is pertinent to note that the complete adjudication process in any trial court including DRTs is for judicial determination of facts relating to alleged recoveries by the banks. Assuming that proper counter-claim or damage suit has been filed, the goal of the defendant borrowers and guarantors should be to achieve ‘Undisputed Facts on Records’ relating to the bank claim, wrong doings of the bank and consequent damages. There is no short cut for the said judicial determination of undisputed facts otherwise the trial will be defective and once the decree is passed, nothing can be cured in the higher courts.

Hence all the litigant borrowers and guarantors are advised first to have proper pleadings preferably drafted by someone who has mastery of facts and mastery of law. Then using the tool of established procedure of law, the facts must be determined judicially. After this only the stage of arguments will be reached and not earlier.

(5) Arguments (Oral & Video) in USA Supreme Courts available on internet within a day:-

The arguments in US courts are recorded in audio and video format since 1970. Nowadays the same are available on internet e.g. in respect of Illinois Supreme Court, the Oral Argument Audio & Video on demand may be found by clicking the link at http://www.state.il.us/court/Media/On_Demand.asp

Just after completion of Arguments, the audio and video versions are posted on the above web site on the same day. The advocates, litigants and common public may download the same and study thoroughly by playing forward, backward and pause any number of times.

The Supreme Court of India has recently decided to commence audio records of the arguments and in due course of time, it will be introduced in High Courts and District Courts. Such records will also be available on the web sites. With such measures, the quality and service of justice delivery system will definitely improve.

(1) DRT Case filed by the Bank stayed till the SLP filed in Supreme Court is finally decided:-

One of our clients at Mumbai informed that the DRT case filed by a Co-operative Bank has been stayed till the SLP filed in the Supreme Court is decided. The issue regarding Co-operative Banks being treated as ‘Banks’ under the Banking Regulations Act is under considerations with a 5 judges bench and the hearing is scheduled on 6^th Dec ’08. All such cases filed by the Co-operative Banks in DRTs have been stayed all over the country.

(2) Panchnama made by the Borrower on refusal of the Bank to receive letter:-

One of our clients at Indore received a notice under Sec. 13(4) of Securitisation. The borrower sent a reply through speed post as well as through hand delivery. When the bank officials refused to receive the said reply through hand delivery, the borrower sent his representative along with two witnesses and after refusal by the bank officials, a Panchnama was prepared for the said refusal and sent to the Bank and concerned officials. Thus any untoward conduct by the public servants including bank officials can be recorded by such Panchnamas.

One of our clients at Chennai has noticed an organized scandal by a Factoring Services Firm which has employed ex-officials of the banks and government. They have created a web site and are in regular collusion with the recovery departments of the banks. They plan all the activities in banks and DRTs in locating the securities, arranging valuation and sales at much lower values. The said Factoring Services firm even joined as one of the parties in the ongoing DRT litigation. On certain wrong doing, the DRT even asked the said firm to tender apology in writing. The borrower has also lodged complaint with the police and CVC (Central Vigilance Commission) This topic was discussed in the Indore Conference and mention was made vide DVD No – D-014.

In one of the cases at Indore, a Review was filed in trial court on 28.02.05. On the same matter an Appeal was filed on 31.08.05. While the proceedings in Review were going on, the Appeal came up before the Division Bench of High Court which on 17.09.08 ordered as under:-

(1) “Admittedly both i.e. present application filed under Order 44 Rule 1 of C.P. Code and review can not be prosecuted simultaneously and therefore, so long as the review petition is not finally disposed of, this application filed under Order 44 Rule 1 ibid can not be proceeded with.”

(2) The said High Court on 03.11.08 ordered “This appeal is adjourned sine die with a direction that after the applicant makes an application for taking up the matter, only then the appeal will be taken up for consideration.”

(3) Thus our contentions have again been validated when statute provides two remedies, the litigant can avail of both but in sequence. The remedy which has been invoked first has to be decided on merits first and till then only the second remedy has to wait. A comprehensive analysis of this subject is available in AIR 1948 Allahabad 353 which has not yet been overruled. In many Supreme Court judgment, the same concepts have been upheld in the matter of Review and Appeal.

(5) DRT Bangalore orders interim stay without any deposit in the matter of appeal under sec 17 of the Securitisation act:-

In respect of one of our clients from USA having Registered Office at Bangalore and facing action under the Securitisation Act in the matter of their Power Project setup in Hassan, the PO DRT as usual initially insisted for Deposit (against alleged claim of Rs. 28 crores approx.) While arguing the case, our Senior Advocate Mr. Dubey submitted various legal and factual grounds on account of which such deposit is not justified. Finally the said PO issued the order without any deposit or any other conditions as under:-

“Interim stay of all further proceedings such as taking physical possession, conducting auction sale, confirmation of the same etc. until further orders”

(6) Approach to Trial in DRTs – application of Constitution of India and CPC:-

In respect of trials in DRTs and civil courts we have been all along insisting for the following:-

(1) These courts are the first and last to determine the controversial facts and proper law to be applied to determine the controversy as well as the rights and liabilities of both the parties.

(2) The Borrowers and Guarantors facing DRT Litigations should regard DRTs as the ultimate courts just like the Supreme Court so far as the judicial determination of facts are concerned. Any lapse on this aspect can not be remedied in the Higher Courts.

(3) The above becomes all the more important when all the courts in our country are heavily loaded and there is acute shortage of judges. There will always be pressure for hurry from the Judges and opposite parties like Banks and Financial Institutions.

(4) Under the above facts and circumstances, one has to be perfect in pleadings and adjudication on every date. A thorough understanding and application of Constitution of India and Civil Procedure Code as well as the leading judgments from the Supreme Court of India must be kept in view and used in all submission before the courts and DRTs. Either written or Video Arguments must be submitted.

(5) Further details may be had from the DVD No D-013 of the Indore Conference.

(a) In one of the cases at Indore, a civil suit was dismissed by the trial court on 15.02.05 on preliminary issues . A review was filed on 28.02.05. While the review was in process, the limitation for appeal was getting nearer. Hence the Appeal was filed before the High Court Bench at Indore on 31.08.05.

(b) In the mean time when the said Appeal came up before the High Court, the Division Bench desired on 17.9.08 that the Review must be decided and completed within a month.

(c) During arguments on 03.11.08 after reviewing the entire matter, the High Court gave the following important verdict:-

“The Appeal is adjourned sine-die till Review is decided and Appellant comes up for continuing the Appeal.”

Our Comments:- The above verdict of the High Court is validation of our views being put up past 8 years summarized as under:-

(1) The Review and Appeal are two legal rights under the statute (e.g. in CPC 1908) with well defined jurisdictions.

(2) If Review is filed while no appeal is pending, the legal right of Review has to be decided on merits. Such legal right can not be taken away by any court of law.

(3) During the pendency of such Review, if Appeal is filed due to limitation, the said Appeal being another legal right is also needs to be decided on merits.

(4) Under the above circumstances, the Appeal has to wait till Review is decided.

(5) There are several High Court and Supreme Court judgments which support above view. The above mentioned verdict of High Court dated 03.11.08 is the latest.

(6) Those who have not gone in depth about such matter still are carried away by a wrong notion that when two remedies exit, one can exercise only one. There are several Supreme Court judgments which uphold simultaneous use of both the remedies, The latest verdict of the Supreme Court in the matter of Transcore is well known.

(7) We are preparing exhaustive and exclusive ‘Video Opinion’ on the above matter based on analysis of various High Court and Supreme Court judgments.

(8) As we are emphasizing perfect trial in DRTs, the said ‘Video Opinion’ will be of immense use to the Borrowers and Guarantors facing DRT litigations. The tools of Review and Change in Court combined with ‘Video Arguments’ will greatly improve the quality of adjudicative process in DRTs. When the facts are correctly established in DRTs, the Higher Courts will not be misled or misdirected by the Bankers’ pressure for ‘Recovery by Hook or Crook’

One of the Advocates recipient of our weekly mails has objected to the language used in our weekly mails and in our web site. In this context, the following facts need to be kept in view:-

(a) Some of the advocates and judges in our country are unable to part with the age old practices established by the British.

(b) The scenario dramatically changed after promulgation of our Constitution when public acquired fundamental rights. As per sec. 21 of IPC 1860 the judges are public servants. As per sec 2(17) of CPC 1908, the judges are public officers. The advocates are professionals hired by the public. The public as litigants are the customers and consumers in the service industry of Justice Delivery System. Time is not far when just like ‘Customer is the King’, the ‘Litigant also will be the King’ The Constitution of India has already armed the public with fundamental rights and separation of judiciary from the executives. When the present rule by ‘Public Servants’ will be replaced by ‘Public’, we will have the real democracy.

(c) Even in British days, the then ICS officers whenever used to write any letter to the public were required to end the letter with the phrase ‘Yours most obedient servant’ Our IAS officers have conveniently dropped this phrase which is most appropriately needed in the democratic setup like ours.

(d) When the courts are deciding damages due to deficiency of service under Consumer Protection Act and violation of statutory duties, the same concepts will come into play for the advocates and judges. The complete setup is meant for giving excellent service to the litigants. More so in DRTs where huge court fees of Rs. 1 lac to 1.5 lac as well as deposits have been prescribed without any considerations whether the unit is closed or the industry is sick, whether the promoter is able to survive or not.

(e) For new entrepreneurs, we have been advising them that their project reports must include the funds for survival and fighting legal battles during sickness. When there is no such problems for the Bankers, why the entrepreneurs should suffer. More so when there is no 'No Fault Insurance' and 'Lenders' Liability Enactment' in our country. All these matters we have already highlighted on our web site since last 8 years.

(f) For the existing litigants in DRTs, we have been basing the counter-claims and damage suits on their balance sheets with suitable comments so that the related facts are established by way of judicial determination. It is interesting to note that despite package of Rs. 71,000 crores, the farmers are still committing suicides as the package may correct the balance sheets of the banks but the farmers have no provision of survival expenses.

(g) All over the world, the trend is to modify the legal language in such a manner so that it is easily understood by the common man as litigants. This has been highlighted in the book ‘Plain Language for Lawyers’ by Michele M Asprey, 2^nd edition – First Indian Reprint by Universal Law Publisher in 2002.

(h) Under the above scenario, our language in the web site and weekly mail expresses in simple language the ground realities relating to the bank victims who are being treated and termed as defaulters and culprits, in many cases, due to the wrong doings committed by the banks. The farmers and industrialists are real wealth generators and so long as they are not treated properly, major portion of the society (85% in India) will remain poor and only window watchers for the products coming from outside countries like China.

One of the Research Scholars from Pune University has called on us to understand and analyze the functioning of DRTs in Maharashtra. We provided him with complete background material and fundamental concepts. The improvements can only be achieved by application of modern management techniques and improved technology. He was informed about various areas in which he should carry out the research. Further he was told that the bankers are unable to implement the law contained in the Constitution of India and the Bank Nationalization Act. They are openly violating the duty of care contained in law of torts as well as the breach of statutory duties laid down in the RBI Guidelines. The borrowers and guarantors have the only option to file counter-claims or damage suits against them. The battle is to be fought in the trial court of DRTs based on law and procedure of law keeping in view the principles laid down by the Supreme Court of India in the matter of Swaranlata AIR 1969 SC 1967 para 6.

One of our clients from Indore when viewed the ‘Video Arguments’ was so much impressed that he desired to have such ‘Video Arguments’ prepared by us for his writ petition to High Court in respect of appeal dismissed by the DRAT. He appreciated the thorough research being done by us as well as the Superior Presentation (due to 100% record and 100% recall) which will be liked and demanded by the Advocates and the Judges.

One of our prestigious client based in USA and having case in DRT Bangalore desired to have our Advocacy Services also. Accordingly our Senior Advocate Mr. Dubey will be in Bangalore during next week.

Our weekly mails have become quite popular in the country among the borrowers and guarantors. Huge number of new recipients are being added every week. It has been greatly appreciated by them as may be seen from number of mails received by us. One of such mails is reproduced below:-

From: suman sundar <gurumira@yahoo.com>
Date: Fri, Oct 24, 2008 at 7:15 AM
Subject: Re: From Sundararajan - Wishing You a very Happy & Prosperous Diwali - DRT Solutions Weekly Mail - 24th Issue 24th Oct '0
To: Ram Kishan <ramkishandrt@gmail.com>

Dear Mr. Ram Kishan,

The article about review is enlightening the aggrieved borrowers who are being trapped by the power and possession of the Bankers. The borrowers so far came with the conclusion that there is end of justice. Some of the advocates are also not versatile in Laws and hence are losing the battle wherein the wrong doings of the banks are unnoticed.

The letter from Mr. Prem Kumar is the reflection of many borrowers. The article about the simplicity of the Iranian President is mind touching.

The weekly mails are the feedbacks of the cases from many parts of the nation under one web site and gives valuable assistance how to proceed in the cases.

Thank you.

Sundararajan

Madurai

The CPC (Civil Procedure Code) 1908 in India is the most litigated enactment. It is based on the well established procedure in English Courts past several hundred years. The first version of the CPC in India was issued in 1859. All the judicial trials in the country including that in DRTs are based on CPC.

In Bank litigations, all the facts are contained in documents. All the documents are in power and possession of bank.

In specific case of counter-claim or damage suit against the banks, the defendant bank is required to submit their written statement. In almost all the cases, we have observed that as a routine practice, the defendant bank comes up with general and evasive denial of all the facts contained in the pleadings of the plaintiff borrowers. Hence as per the law contained in CPC, the plaintiff borrower is entitled to discover all the facts contained in the documents. If this stage of trial is fought properly, either the bank will have to offer all the documents for inspection or their defence will be closed. Either way the bank will lose the case.

Cross examination of bank officials is the next most important stage of the trial. Person having mastery of facts and mastery of law should alone cross-examine the bank officials. The goal of the said cross-examination should be admission of wrong doings by the bank officials.

In that eventuality the final argument becomes very simple as one has to describe the admissions only. Once wrong doings are thus established, the plaintiff borrower has to prove the quantum of damages.

Our clients from time to time made many queries. We submitted our replies based on the CPC. Some of such matters alongwith our replies were in brief as under:-

(a) There is no such thing as motion hearing of interim applications.

(b) There is no such thing like ‘Repliction’ WS and the enclosed documents are the final pleadings of the defendant bank.

(c) The plaintiff is free to enjoin defendants justifying the same on his pleadings.

In this context, we have observed that the defendant Bank comes up with general denial and fighting on all above and similar matters. If there is lack of knowledge of CPC at the trial stage, there are wrong decisions at the trial stage. Efforts for resolution from Higher Courts may entail Herculean efforts or even the decisions from higher courts from complicate the matters.

All the above aspects are fully covered in CPC. There is no substitute of thorough knowledge of CPC. The litigant and the trial lawyer should be very meticulous on every date. That is why we are empowering the clients and their advocates. The goal should be that one should be very particular on every date. In important matters, written and or video arguments must be submitted.

(3) An Interesting Book ‘The Terrible Truth about Lawyers What Every Business Person Needs To Know’:-

Mr. Mark H. McCormack has written a best seller ‘What They Don’t Teach You At Harvad Business School’ The same author has written an interesting book ‘The Terrible Truth About Lawyers what Every Business Person Needs To Know’ This book contains lot of useful suggestions for the litigants.

(a) Consequent on our emphasis based on Legal Research in the matter of review, our Clients and Advocates have started using this important tool to improve the quality of litigation at the trial stage. One of our clients at Indore first filed Review in DRT, Jabalpur and subsequently before expiry of limitation, appeal was filed in DRAT, Allahabad. Since the services of the PO at Jabalpur has been terminated on account of corruption charges and new PO has not yet been posted, the Appeal in DRAT came up for hearing. Under such situation, we should have not allowed the Appeal to proceed till Review is decided. It is non of the fault of the citizen litigants that their right of Review can be overlooked just because a public servant Judge has not been posted.

(b) In another case of our Madurai clients, the PO Madurai has not passed a reasoned judgment on Review. He did not go through the written arguments and did not comment anything on the SC Citations. These points need to be raised by way of amendment in the Appeal already filed with DRAT Chennai.

(c) It has been informed by our clients that the POs are getting irritated and start misbehaving on such Reviews and Appeals. The Judges with such behavior are violating their statutory duties. We have asked our clients to put down their demeanor in writing with two witnesses and submit before the said judge to make it part of the records.

(d) The litigant borrowers and guarantors have no option to ensure that the trials in DRTs are conducted strictly by law and procedure of law. Any lapse will result in inherent weakness in the case which can not be corrected by the higher courts. One should not worry on the delay otherwise spoiled case due to hurry after all is going to result in defeat. The best course is to file counter-claim so that the delay does not affect due to increase in the interest even if there is delay.

(e) On the topic of the Review a copy of our mail sent to one of our client is reproduced below. We have given citations of important judgment as well as our comments on this important matter of Review. Every litigant borrower and guarantor must comprehend all these aspects so that there is no lapse on part of his Advocate.

From: Ram Kishan [mailto:ramkishan@drtsolutions.com]
Sent: Tuesday, October 21, 2008 1:14 PM
To: Indore-PithampurPolyproductLtd
Subject: Mail from Ram Kishan

Dear Mr. Tekriwal,

(1) Our approach was based on following considerations:-

(a) The leading judgment on Review is 1993 Supp (4) Supreme Court Cases 595, S. Nagaraj & another vs State of Karnataka & Others, Para 18 and 19 lay down the importance of Review.

(b) The legal provision of 'Review' dates back to ancient time of 'Court of Equity' in England. Accordingly such provision of Review was incorporated even in CPC 1859. These historical facts and importance of Review are mentioned in AIR (35) 1948 Allahabad 353, Behari Lal vs M.M. Gobardhan Lal. As per para (48), 'There are certain situations for which a review is a more appropriate remedy than appeal'

(c) Unfortunately in our country, the present generation of advocates and judges are not paying due attention to the importance of Review. This is just for your information that in 1946, a review petition filed in High Court of Travancore contained 92 grounds for review vide para no 29 in 1954 AIR (SC) 526, Moran Mar Basselios Catholics vs Moat Rev. Mar Poulose Athanaslus This is another leading judgment on ingredients of Review.

(d) Another leading SC judgment is AIR 2005 Supreme Court 592 Board of Control for Cricket India vs Netaji Cricket Club

(e) There are 80 judgments on Review delivered by the Supreme Court of India Depending on the facts, suitable judgments have to be cited to prove our contentions.

(f) For further details, you may view the DVD No - 013 of Indore conference

(2) Based on above, we could have emphasized stay of the appeal to enable us first to excercize our right of review. In that eventuality, the appeal should have not been proceeded with.

(3) This is just for your information that recently when we started arguing a Review Petition, the DJ Indore mentioned that the argument be limited to 5 to 10 minutes. We requested him just to hear the arguments. After hearing the matter for one and half hours, the judge became so much interested to hear further that he enquired as to how much more time you want, we said 2 hours. He further permitted 2 hours. Thus instead of 10 minutes, he permitted 3 and 1/2 hours.

(4) Since the judges are heavily overloaded and they are under heavy pressures for quick disposal, the chances of defective orders have gone up tremendously. The first remedy is Review which must be carried out thoroughly with written arguments. If the judge does not listen, one should go for change in court.

(5) In view of above, wherever possible, we are emphasizing the importance of Review and change in court. We can achieve justice only when we are thorough in securing it.

(6) In respect of your case, since the appeal has been disposed off by DRAT, the jurisdiction of DRT hearing the review has come to an end. The next course of action is to appeal to High Court.

With best wishes,

Ram Kishan

One of our recent clients from Chennai called on us. He spent time with us nearly for 18 hours on two days when we enlightened him with the essential concepts of Industry, Banking and Judicial process apart from laying down strategy for his case. His following mail is self explanatory:-

On Thu, Oct 23, 2008 at 4:03 AM, PREM KUMAR wrote:

DEAR SHRI RAM KISHAN JI / SHRI DUBEY JI,

IT WAS A GREAT OPPURTUNITY MEETING TRUE INTELLECTUALS AS YOU, WHOSE MISSION IS TO OFFER RELIEFS TO ALL THOSE IGNORANT ENTREPRENEUERS AS MYSELF STRANDED IN THE WEB OF SELFISH, MINDLESS, HEARTLESS SECURED CREDITORS AND FURTHER MISLEAD, EXPLOITED AND FEASTED UPON BY THE ADVOCATE WHO WAITS UNDER DARK SHADOWS LIKE THE WICKED HYENA WAITING FOR ITS TURN TO DEVOUR THE LEFT OVERS OF THE FALLEN.

IN THE PAST THREE YEARS SINCE I FACED THE CRUNCH, LATER TO CLOSURE OF MY BUSSINESS, SUBSEQUENT HAPPENNINGS WHICH LED TO LITIGATION, I HAD CONTEMPLATED HUNDREDS OF TIMES TO END MY LIFE. THE ONLY QUESTION WHICH CAME TO MY MIND WAS, WHY SHOULD MY WIFE AND CHILDREN CARRY THE BURDEN OF DEFEAT FOR NO FAULT OF THEIRS. IT IS LIKE THE DREADFUL DISEASE PASSED ON TO YOUR DEAR ONES FOR THE SINS YOU HAVE DONE. IF ONE WAS WISER ENOUGH, THESE SITUATIONS WOULD HAVE BEEN FEWER.

BUT WHERE DOES WISDOM LIE?

IT IS OUR AGE OLD TRADITION SINCE AGES THAT WISE PEOPLE TRAVELLED ACROSS NATIONS AND SPREAD THE WORD OF WISDOM AND REPOSED CONFIDENCE IN THE WEAK AND INTIMIDATED, WHICH MADE THEIR MINDS STRONGER AND ULTIMATELY WINNING THE BATTLES OF LIFE.

THE PLEASURE WHEN ONE BEGINS TO AQUIRE SUCH KNOWLEDGE IS HIMALAYAN. IT GIVES COURAGE AND DETERMINATION TO LIVE ONCE AGAIN OPENING NEW VISIONS FOR ACTIONS ONE MIGHT DARE TO ONLY IN THE NEXT BIRTH.

I HAVE ASSIGNED MYSELF TO THIS YAGNA IF NOT ABLE TO CHANT THE HOLY MANTRAS, WILL BE ONE OF THOSE SPREADING THE WORD, DRAWING THE SICK TO THIS CONGRESSION TO RENEW LIFE IN ITS AMBIENCE.

I FEEL IT AS A DUTY AND NOT SERVICE.

NAMASTE

PREM

From: Ram Kishan [mailto:ramkishandrt@gmail.com]
Sent: Thursday, October 23, 2008 5:54 AM
To: PREM KUMAR
Cc: Indore-Dubey
Subject: Re: MY VISIT

Dear Mr. Prem Kumar,

We appreciate your grasp and expression of the true state of affairs. The law and procedure of law is highly developed. Whenever you find time, please view the DVDs of the Indore Conference. The task ahead is gigantic. The entire beauracracy (bank and judiciary) is against the concepts and desires of the trapped entrepreneurs. Perfect pleadings and perfect adjudication on all dates at the trial court is the first requirement to establish the facts judicially relating to the wrong doings committed by the banks. Once it is done, next important step is proving of the consequent loss and damages. The process is long drawn, time consuming and expensive as lot of records are to be created at the bottom courts. It is only after winning the case in trial (i.e. the first part), one will have to pursue the second part when the bankers appeal to higher courts. The best legal brains in higher courts at the instance of the bankers will try their bests to mislead the judiciary. Here the the said records created at the bottom courts combined with the perfect knowledge of law and procedure of law will alone counter-act the impending misconceptions of the judiciary.

The above is required to be done by all the conscious citizens in their own battles against the beauracracy if they desire to usher in long sought after democratic way of life since we enacted the Constitution of India.

We are confident that one day we will have freedom as few of our clients like you have understood the concepts as well the process of implementation.

With best wishes particularly on the auspicious occasion of Deepavali (a festival of light to dispel the darkness of ignorance),

Ram Kishan

(1) Chief Justice. Supreme Court of India informed about ‘Video Arguments’:- Following communication has been sent to the CJ, Supreme Court of India :-

(2) Chief Justice. MP High Court informed about ‘Video Arguments’:- A similar communication has also been made to the Chief Justice, MP High Court about the ‘Video Arguments’

(3) Web Site of Legal Forum of India:- A web site of 'Legal Forum of India' is nearly ready and will be launched shortly.

The remedy of ‘Review’ has an ancient origin right from the ‘Court of Equity’ vide pg. 842 “Commentaries on The Laws of England’ by Sir Blackstone, 1877 (American Edition) 4^TH Edition 1938. It was also incorporated in CPC 1859. Even in 1952, in Supreme Court of India, an appeal was filed wherein there were 92 grounds for Review.

Compared with 1952, in the present time, the judges are heavily loaded, matters are more complex, and there is huge shortage of time for everybody, huge pendency which is growing at much faster rate and hence there is pressure for quick disposal. All these factors naturally are causing much greater incidence of ingredients for Review in judicial orders. Thus the scope for Review has been greatly boosted.

The Indian Advocates and Judges have not been paying adequate attention to Review. When we analyzed all the above factors and did lot of research on ‘Review’, even highly experienced

As per the provisions of CPC 1908, if Review has been filed and if it has not been decided and appeal is also filed to avoid bar of limitation; as per the provisions of law, until and unless Review is decided, the adjudication on appeal has to wait. This has also been confirmed by the Supreme Court.

In case of one of our clients of Ludhiana, when the claim of the bank and counter-claim of the borrower, both, are under adjudication and when prima facie, the counter-claim is much more than the claim of the bank i.e. there is no debt due, the winding up of the Company , if ordered, is liable to be set aside.

In respect of our Ranchi client, the PO DRT Ranchi on 29.09.08 has issued an important order which will be very useful to all the defendant litigants in DRTs. The OA was filed by the bank on 21.07.06 and the WS was filed on 14.03.07 on which date the bank had filed their proof affidavit. The defendants were given chance to file counter-affidavit which was also filed belatedly on 30.08.07. Even after this date, at our instance, the counter-claim was filed on 04.03.08 i.e. after about a year of filing WS. The bank in its preliminary objection claimed that the defendants have no justification of filing counter-claim at this belated stage which is, as per the submission of the bank, was not maintainable and barred by law of limitation. We provided necessary inputs including Supreme Court judgment according to which the counter-claim could be filed even after filing the WS.

The PO DRT after going through the records stated that prima-facie there is some existence of discrepancy which has occurred at the time of advancing the credit facilities by the bank to the borrower and which warrants an adjudication in detail in the matter. As such, the preliminary objection filed by the bank on maintainability of the counter-claim does not stand. As such the preliminary objection filed by the bank fails and the said preliminary objection is rejected. The bank was asked to file WS in the counter-claim case on the ensuing date of hearing.

In view of such verdict, since the counter-claim is much bigger than the claim of the bank, no recovery action could be initiated till the counter-claim is fully decided. This is yet another case which fully supported our approach since 2001 that counter-claim can be filed at any stage. Several of our clients have been greatly benefited when on account of the said counter-claim when the bank was forced to settle even below 5% of the alleged claim amount.

In case of one of our Mumbai clients, the AGM of the bank was troubling the party on all possible ways. Hence the party approached us for suitable remedial measure. We drafted a strong criminal notice and the same was sent to the said AGM and the bank on 28.08.08. The said AGM who was troubling on all fronts could not give any reply even after a month. A simple letter was received from the branch saying that they are referring the matter to their Head Office. The entire bank has been shaken by such criminal action.

We received reports from various places about appreciation of the ‘Video Arguments’ prepared by us. We recorded video interviews with the following persons. They all appreciated the method of the said ‘Video Arguments’ and desired immediate implementation:-

(1) Mr. P.D. Muley, ex-MP High Court Judge – retired in 1988 and at age of 83, he is quite hale and hearty – takes part in social activities – he appreciated the ‘Video Arguments’ and expressed that it will be highly useful to Judges, Advocates and the Litigants.

(2) Mr. N.K. Goel, Retired Judge of District Court – in his interview of 9.6.07, he was the first person who was shown the new development when he appreciated its various aspects.

(3) Mr. B.C. Jain, Senior Advocate, High Court, Bench at Indore – Gold Medal in LLB and Gold Medal in LLM – vast knowledge of law – he not only appreciated but desired implementation without loss of time.

(4) Mr. B.S. Dangi – Advocate and author of 7 books in various subjects of law. – he termed the ‘Video Arguments’ as revolution in Indian Judiciary.

(5) Mr. Rajendra Goyal, well known CA in Indore, ex-director in State Bank of Indore for more than 5 years, at present President of Tax Practitioners’ Association of Indore – he profusely congratulated and expressed as to when the Judges are using the modern technology in entertainment, car, mobile etc. then why not in the Court Room. He made an important suggestion of incorporating an Index at the beginning of the said ‘Video Arguments’

Our first commercial assignment of ‘Video Arguments’ has been highly appreciated by the client vide copy of his mail reproduced below:-

From: flask@bom5.vsnl.net.in [mailto:flask@bom5.vsnl.net.in]
Sent: Friday, September 26, 2008 5:59 PM
To: Ram Kishan
Subject: MESSAGE

Dear Sir,

We take this opportunity to thank you very much for putting great efforts in preparing ‘Video Arguments’ for our damage suit at Silvassa Court.

This concept of preparing Video Arguments in our case has definitely given a good mileage to our case.

It is because of your timely assistance and guidance, we have reached in a good position.

Hence we once again thank you for your great efforts.

Thanks / Regards

HARESH GANDHI

(2) ‘Video Arguments’ appreciated by Justice P.D. Muley, an Eminent MP High Court Judge:-

Justice P.D. Muley who retired in 1988 from MP High Court and now of 83 years of age still quite active for social development in general and particularly for Indore city was highly pleased to view the ‘Video Arguments’ prepared by us. In a video interview he appreciated the same and desired to help in spreading among judges and advocates as it will save time, cost and burden apart from improving the quality of justice delivery system.

Since 1984 till date the Supreme Court has delivered 66 judgments on ‘Review’ Majority of these judgments indicate that the cases have not been prepared properly. Perhaps due to ignorance of the clients, the Reviews have been filed by the advocates. That is why we are insisting for empowerment of the clients so that such situations are avoided.

(5) Filing of OA by the Bank in DRT other than that where the proceedings under Securitisation Act are going on :-

We have come across few cases where the banks intentionally are filing OA in DRT other than that where the proceedings under Securitisation Act are going on. There are several Supreme Court rulings law down the law that all the proceedings of the same matter must be held at one place only. The also serves to avoid conflicting decisions. In fact one of our clients at Chennai before coming to us suffered a lot due to a conflicting decisions in two DRTs.

(6) Dismissal of OA due to wrong presentation of accounts and mistakes therein:-

The DRTs are supposed to examine the OA before registering the same whether the documents are in accordance with law. In almost all the cases we have found that the DRTs are not fulfilling this duty. Hence in several cases, we have filed application for dismissal of OA and the bankers find it extremely difficult to reply. Hence there should not be any hurry to file WS as well as the counter-claim till the said application for dismissal of OA is finally decided.

(7) SC laid down the Conduct & Qualities of a Judge in 1992 i.e. 16 years back:-

The Supreme Court of India has laid down the Conduct & Qualities of a Judge vide citation (1992) 1 Supreme Court Cases 119, All India Judges’ Association vs Union of India in Para 61 reproduced below:-

“ 61. The conduct of every judicial officer should be above reproach. He should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, fearless of public clamour, regardless of public praise and indifferent to private, political or partisan influence; he should administer justice according to law, and deal with his appointment as a public trust; he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity.”

Our Comments:- Our constitution is one of the best in the world, we should have the world class judges and world class advocates. Since at present, it is not so, the litigants will have to make extra efforts to achieve world class standards in their defence.