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 - 371st to 380

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Expert in:- DRT, Counterclaim, securitization, debt recovery tribunal, NCLT  matters






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

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DRT Solutions Weekly Mail – 379th Issue dated 14th August ’15

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(1) Not Enough Manpower, CBI to SC  


The following news article is self explanatory:-

Not enough manpower to probe scam bigger than Vyapam: CBI to SC


The Madhya Pradesh Admissions and Fee Regulatory Committee had fined six private medical colleges Rs 13 crore for filling about 721 such seats between 2010 and 2013.

Expressing inability to investigate another scam linked to Vyapam, the CBI has told the Supreme Court that while this scam is bigger in “scope and depth”, the bureau has no manpower to probe it.

Responding to a petition by Vyapam whistleblower Anand Rai in the court, the CBI said, “In its scope and depth, the DMAT (Madhya Pradesh Dental Medical Admission Test) scam appears to be many times more than the Vyapam scam… It is humbly submitted that the CBI is finding it extremely hard and almost impossible to cope with the extent of cases already being investigated…due to scarcity of resources, particularly human resource.”

The CBI said investigations were normally conducted by officers ranging from the rank of inspector to additional SP, “whose total sanctioned strength is 1,264 only”.

Of the sanctioned strength, the CBI said 348 posts — 23 additional SP, 42 deputy SP and 283 inspectors — were currently vacant.

The court had sought the agency’s response to the petitioner’s plea that irregularities in alleged DMAT scam be investigated by the CBI since it was related to Vyapam and was bigger in scope. The petitioners, Rai and Ashish Chaturvedi, had requested the court to hand over the investigation to the CBI since the Special Task Force in Madhya Pradesh had refused to probe it.

Admitting that the scam appeared bigger, the CBI requested the court not to accede to Rai’s plea since there was “no allegation of corruption against public servants in the DMAT scam, (therefore) these cases should ideally not be entrusted to the CBI in the given circumstances.”

“Apart from the Vyapam cases, the CBI is already investigating more than 1,000 cases related to the chit fund scam in several states… besides its own normal targeted 846 cases (which results in the probes becoming) unmanageable and almost impossible to handle…with the existing workforce of the CBI,” the agency stated in its reply, filed by Superintendent of Police Pradip Kumar.

Talking about the alleged DMAT scam, Rai claimed, “The scorers or solvers of the Vyapam scam, who used to appear for students, also had a deal with private medical colleges where they would get admitted against management quota seats and later surrender them for money. These seats would then be allotted to elite students, including children of several bureaucrats and politicians.”

The Madhya Pradesh Admissions and Fee Regulatory Committee had fined six private medical colleges Rs 13 crore for filling about 721 such seats between 2010 and 2013.

The petition will be heard next on August 14.


(2) Govt Amending Procedures to Check Unnecessary Litigations  


The following news article is self explanatory:-

Government Mulls Amending Procedures to Check 'Unnecessary' Litigations


Published: 02nd August 2015 12:09 PM

Last Updated: 02nd August 2015 12:09 PM



NEW DELHI: With three crore cases pending in courts, the government may consider changes in legal procedure to make it mandatory for a litigant to issue a notice to the opposite party before initiating formal proceedings to enable them explore the possibility of a pre-litigation settlement.

According to a Law Ministry document, this would help curtail "unnecessary litigation" as people would then approach courts to settle civil contractual disputes as a last resort. The Department of Legal Affairs and Legislative Department in the Law Ministry "may explore" the possibility of bringing changes in procedural laws to introduce a requirement of mandatory notice to the opposite party before initiation of legal proceedings, sources said.

"This will help in curtailing unnecessary litigation as many parties may choose to settle the cases even prior to the initiation of formal legal proceedings," a Ministry document states. According to the note, very often parties may be able to

resolve the contractual differences between them through direct negotiations, without resorting to any formal or informal dispute resolution mechanisms. It referred to an April, 2009 Law Commission report which made a "pertinent recommendation in this regard in its 221st report on the 'Need for Speedy Trial -- some suggestions'."

The law panel had referred to Section 80 of the Code of Civil Procedure (CPC) which requires that a litigant who proposes to initiate legal proceedings against the State or a public officer must give two months advance written notice to the concerned party and suggested that a similar provision should be introduced for all categories of civil cases. "A provision of this nature is already seen in Section 138 of the Negotiable Instruments Act, 1881, which provides that a claim for dishonour of cheque can only arise after the claimant has issued prior written notice to the drawer of the cheque and the drawer has failed to make the payment of the relevant amount within 15 days of the receipt of the notice," it said.

The document, prepared for a recent meeting chaired by Law Minister D V Sadananda Gowda of the Advisory Council of the National Mission for Justice Delivery and Legal Reforms, states that "adopting such a provision with respect of all civil cases will help in curtailing unnecessary litigation as many parties may choose to settle the cases even prior to the initiation of formal legal proceedings.

"A provision of this nature would, however, need to be subject to an exception for urgent matters where the court can dispense with the notice after hearing reasons for the urgency." Legal dictionaries define civil litigation as a legal dispute between two or more parties that seek monetary damages or specific performance rather than criminal sanctions.

"The Department of Legal Affairs and Legislative Department may explore the possibility of introducing legislative changes to introduce a requirement of mandatory notice to the opposite party before initiation of legal proceedings," the agenda note said. The judiciary, including the Supreme Court and various subordinate courts, disposed of over 2 crore cases last year, and another 3 crore are still pending with them, Rajya Sabha was informed by the Law Minister on Friday.

Gowda said while the apex court settled 92,722 cases in 2014, the 24 High Courts disposed of 17,34,542 cases in the last calendar year. The subordinate courts settled 1,90,19658 cases in 2014, he said in a written reply. But at the same time, 62,791 cases were pending in the Supreme Court in 2014. Similarly, 41,53,957 cases were pending in the various High Courts. In the subordinate courts, 264,88,405 were pending in 2014.

He blamed vacancies of judicial officers/judges in various courts as "one of the main factors affecting timely disposal of cases."


DRT Solutions Weekly Mail  378th Issue dated 7th August ’15

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(1) Backlogs in DRTs  


The following news article is self explanatory:-

Backlogs weigh down tribunals as settlements take years to conclude


Last week the finance ministry had shortlisted one of its senior officers to join as a member in the Securities Appellate Tribunal (SAT). The highly unusual move is a pointer to the discomfort within the government of the goings on in the various tribunals especially in the financial sector. Each of the tribunals have either run up a huge backlog of cases because of which settlement takes more than five to six years, or have been questioned about the quality of orders with one case inviting a Central Bureau of Investigation (CBI) probe.

Several of them are running without the full complement of members, judicial and technical. These include other than SAT, the six benches of Customs and Central Excise Appellate Tribunal and the 36 Debt Recovery Tribunals (DRTs). The massive backlog of cases has huge revenue implications for the ministry. In July the CBI had asked the Centre for the papers related to the DLF case. The case was filed by DLF in the tribunal appealing against a three-year ban imposed on the real estate firm by Sebi in an order issued in October 2014. The order was reversed by the tribunal through a 2-1 majority in March this year. The dissenting note surprisingly came from the presiding officer of the tribunal, Justice JP Devadhar. While Sebi has made an appeal against the order to the Supreme Court, the government is keen to ensure that the tribunals are able to pass orders that stand the test of law in the higher courts.

In the CESTAT the number of pending cases as per finance ministry data is 97,672 as on May 31, 2015. The total revenue implication of these cases is Rs 1,31,380 crore or a fifth of the total indirect tax receipts for 2015-16. Ironically, the CESTATs were set up to cut down pendency of revenue-related court cases. Finance ministry data shows that there are just 18,624 cases pending in the regular courts including the Supreme Court or just a fifth of the numbers pending in CESTAT. The tax implication of those cases is Rs 31,968 crore. Another report shows that the rate of disposal of cases in 2014 was 13,612. This means the average delay in getting a case cleared in CESTAT is about five years.

There is an equally huge delay in the DRTs and their appellate bodies— the debt recovery appellate tribunals. A Cabinet note to set up six more of them in December 2014 had noted that the number of pending cases in these tribunals has crossed 50,000. The latest data on the amount pending through these cases is Rs 14,38,725 crore as on March 31, 2013, or close to 3 per cent of the total investments made by the banking sector. All these have a bearing on the health of the financial sector. Shankh Sengputa, partner at Trilegal, a corporate law firm, says that considering the case load, some delay in judgments is expected, “although, the delays are also on account of litigants deliberately prolonging the proceedings”. Abhishek Jain, partner at EY agreed that the “majority time of the benches is spent on deciding stay applications”. According to him, the pile up is typically because of frequent adjournments by litigants and department representatives, delays in submission of documents and the frequent transfers of the judges. Sengupta says, “There is a shortage of judicial members in CESTAT as their appointments have not happened in time. While there was a proposal to create additional benches in other states, there has been no development with respect to such proposal.”

For instance two years ago the government cleared a proposal for a new bench of CESTAT in Allahabad among six such benches in several cities. The case ran up to a division bench of the Allahabad High Court which had to issue directions to the Central government to make the bench operational by July this year. Another reason for the rise in pendency is because of the circular line of awards. Parties approach the tribunals and at times anticipating an adverse order, obtain a stay from a higher court. Finance ministry data shows that at the end of May 2015, total stays granted by CESTAT was 4,647. The month had begun with a backlog of 4,902.

A finance ministry rule states that a member can serve in a tribunal only if she/ he has not practiced before the same forum. While the SAT, as of now, has no commensurate backlog, the interest taken by CBI in the DLF case shows how judgments leave room for interpretation. Jain of EY said the benches could fix a timeline for cases “with negative implications in case of breach and limiting the number of adjournments to ensure no artificial delays are caused”.

One of the options is to prioritise cases based on the gravity of issues involved. But this requires deeper understanding of pertinent issues. Rahul Mitra, national head for litigation and dispute resolution for transfer pricing and direct taxes at KPMG, India agrees. “For specialised matters, like transfer pricing, being concerned with economics, rather than interpretation of law, the government may consider appointing subject matter specialists as tribunal members or at least as expert witnesses/ amicus curie, for optimal and expeditious disposal of cases”.

The implications are huge. While the time lines for cases pending in DRT are relatively recent, since they came up later, in the CESTAT there are cases pending for nearly three decades. There are 413 cases pending in these forums from before the year 2000. The oldest case dates back to 1988 in Delhi CESTAT.

The delays are defeating the very reasons why these tribunals were set up-fast-track courts. Sengupta of Trilegal suggests imposing costs or taking strict action against parties who “attempt to delay the matters by filing frivolous applications and seeking unnecessary adjournments”. The government has already moved some distance on this. Finance minister Arun Jaitley has made it mandatory for litigants to deposit a percentage of the tax dues with the government as the precondition for appearing before the CESTAT. Some innovative measures are required for dragging cases in DRT too.


(2) Execution Records in India  


The following news article is self explanatory:-

Most of India’s Execution Records Have Been ‘Lost or Destroyed by Termites’


There is a significant dearth of official information concerning Indian death penalty cases, according to a New Delhi university legal researcher who is now struggling to complete the first comprehensive study on capital punishment in the country.

Anup Surendranath, the professor at the Indian capital’s National Law University spearheading the research project, said that prisons across India responded to record requests by claiming many documents had been “lost or destroyed by termites.” Among the missing files are the 2001 mercy pleas of four men convicted in the 1992 Bara Massacre, a mass murder carried out by Maoist insurgents in the Eastern Indian state of Bihar.

Though records confirm that capital punishment has a prominent position in India’s judiciary history — at least 1,400 executions occurred between 1953 and 1963 alone — the country’s prisons could only provide data on 765 cases between Indian independence in 1947 and the present day.

“There’s a complete lack of information — they don’t even have the names of the prisoners, let alone the official files,” Surendranath told TIME. “It just shows the callousness of the record-keeping system in the jails.”

The task of documenting the activity of the country’s gallows is left to the individual prisons, he said, with “no central authority correlating this [information].”

The absence of relevant data has limited the National Law University’s study to ongoing capital cases — those where the prisoner continues to wait on death row. Execution is an increasingly rare sentence in contemporary India, with only four prisoners hanged in the country since 2000. One of which came just last week, when the country’s Supreme Court finallymoved to hang Yakub Memon, the “driving spirit” behind the 1993 terrorist bombings in Mumbai, the deadliest in the country’s history. The execution, carried out on Memon’s 53rd birthday, followed a drawn-out legal debate.

Surendranath, who resigned on Friday from his position as the Supreme Court’s Deputy Registrar of Research, has been an outspoken critic of the death penalty in India, actively speaking out against Memon’s planned execution. Though he declined to comment to TIME on his resignation, he posted on Facebook that he stepped down to “focus on death penalty work at the University.”

“It is in many ways liberating to to regain the freedom to write whatever I want and I hope to make full use of that in the next few days to discuss the events that transpired at the Supreme Court this week,” he wrote. The post came a day after one that declared the rulings to execute Memon as “instances of judicial abdication that must count amongst the darkest hours for the Supreme Court of India.”

He told TIME that his research team would release its official report on Indian capital punishment later this month.



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

DRT Solutions Weekly Mail – 377th Issue dated 31st July ’15

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(1) Cheque Bounce Cases – New Bill in Lok Sabha  


The following news article is self explanatory:-

Bill to effectively deal with cheque bounce cases back in Lok Sabha

The Bill seeks to overturn a Supreme Court ruling which said the case has to be initiated where the cheque-issuing branch was located.


New Delhi | Published:July 27, 2015 4:37 pm


A bill, providing for trial in cheque bounce cases at the place where the cheque was presented for clearance and not the place of issue, was re-introduced in the Lok Sabha on Monday, with an aim of helping lakhs of people suffering due to jurisdictional issues. The Negotiable Instruments (Amendment) Bill, 2015, introduced by Finance Minister Arun Jaitley, seeks to replace an ordinance, which was promulgated last month. The ordinance was promulgated as the bill, which was passed by the Lok Sabha, could not be approved by the Rajya Sabha during the Budget session. The amendments will enable filing of cheque bounce cases in the place where the cheque was presented for clearance or payment and not the place of issue. The Bill seeks to overturn a Supreme Court ruling which said the case has to be initiated where the cheque-issuing branch was located. There are an estimated 18 lakh people facing cheque bounce cases across the country. The amendment provides that cases of bouncing of cheques can be filed only in a court in whose jurisdiction the bank branch of the payee (person who receives the cheque) lies. If a complaint against a person issuing a cheque has been filed in the court with the appropriate jurisdiction, then all subsequent complaints against that person will be filed in the same court, irrespective of the relevant jurisdiction area. The Statement of Objects of the bill stated that following the apex court ruling, representations have been made by various stakeholders, including industry associations and financial institutions, expressing concern about the wide impact the judgement would have on the business interests as it will offer undue protection to defaulters at the expense of the aggrieved complainant.


(2) Indian Courts and PIL  


The following news article is self explanatory:-

Even without a law against 'vexatious litigation', Indian courts often give PILs a hard time

Madhya Pradesh wants to pass a law to prevent people from filing unreasonable and frivolous legal cases. But courts already use those terms to thwart many genuine petitions, say lawyers.

Aarefa Johari  · Jul 27, 2015 · 06:30 pm


Ten years after the Law Commission of India proposed a bill against “vexatious litigations” in Indian courts, the state of Madhya Pradesh has taken up the cause. On July 22, the state’s legislative assembly passed the Madhya Pradesh Vexatious Litigation (Prevention) Bill to stop citizens from filing legal cases “without reasonable ground”.
If the bill eventually becomes an act, the state’s advocate general will have the power to submit a High Court application against any person he claims has been habitually filing civil or criminal cases without any reasonable ground. If the court finds merit in the advocate general’s application, it can declare the person to be a “vexatious litigant” (or a “
tang karne wala mukadmebaaz” in Hindi).
A vexatious litigant’s ongoing pleas would then be dismissed from the court and the litigant will not be allowed to file any other civil or criminal cases in the High Court or the lower courts without prior permission.
Laws against vexatious litigation already exist in two states – Maharashtra (since 1971) and Tamil Nadu (since 1949, when it was still the State of Madras). In 2005, the Law Commission had proposed a similar legislation for the whole country, its argument rooted in the idea that a court’s time should not be taken up by those who persistently litigate without a justifiable cause.
But a law that allows for such long-term restrictions on litigants could easily be used to thwart public interest litigations and other petitions that the state may find uncomfortable, say lawyers and activists.
“In the past few years, there has been a larger push by government bodies to clamp down on litigations against corporate interests,” said Arjun Sheoran, a Chandigarh-based lawyer and activist. Any law targeting “vexatious litigants” – in Madhya Pradesh or anywhere else in the country – would be a new setback.
The Heavy Cost of PILs
India’s high courts and the Supreme Court already have certain basic safeguards against petitions that have no reasonable grounds.
The Code of Civil Procedure, for instance, has a rule that allows courts to strike out a civil plea that may be “unnecessary, scandalous, frivolous or vexatious”, or that may be an “abuse of the process of the court”. If a criminal litigation is filed before a magistrate without a “reasonable cause”, Section 250 of the Code of Criminal Procedure allows the magistrate to order the complainant to pay a monetary compensation to the accused.
In 2010, the Maintainability of Public Interest Litigation Rules were introduced to govern public interest writ petitions. Under these rules, petitioners must first disclose their credentials and motives to the court’s Registry, which decides if the PIL can be entertained. In court, judges can ask petitioners to deposit an “appropriate” amount to the Registry to be paid as “compensation” to the respondents in case the PIL is found to be “vexatious, frivolous or mala fide”.
“The official litigation fee is usually around Rs 2,000, but the Bombay High Court at times asks litigants to put in as much as Rs 50,000 as potential compensation because the plea is wasting the court’s time,” said Dayanand Stalin, a Mumbai-based environment activist who frequently files litigations against environment violations in Maharashtra.
Thwarting Genuine Petitions
Stalin’s own pleas have never been declared frivolous, but some lawyers claim it is a term often used by courts while fining civil, criminal or public interest petitions.
“I have seen additional costs being imposed on a lot of cases that are declared as frivolous or as not having any 
yuktiyukt aadhar (reasonable ground),” said Sudiep Shrivastava, a lawyer based in Bilaspur, Chhattisgarh.
The Law Commission’s 2005 report on vexatious litigation pointed out that even though there has been a constant demand from courts to dissuade frivolous petitions by increasing the court fee, a higher fee would not really work as an effective solution – on the contrary, it could also end up dissuading genuine litigations.
Sheoran believes this is, in fact, quite true: by imposing heavy costs, courts do end up thwarting several genuine petitions. Other kinds of misuse, he says, are also prevalent.
“In the Punjab and Haryana High Court, there were litigants who raised questions about judicial appointments and they were literally barred from filing any litigation in court,” said Sheoran. “From what I have seen, courts do not want to take up topics which have larger political ramifications.”
Restricting Access to Justice
When courts already have inherent discretionary powers to stay or dismiss petitions on various grounds, Sheoran and other activists believe it would be bad news for state governments – through the advocate general – to have the added power to hound litigants for allegedly being “vexatious”.
The 2005 Law Commission report claimed that a national law to prevent vexatious litigation is important for “public good” because such a law would impose restrictions on a “vexatious” person’s “access to justice”.
This is presented in the report as a virtue, but in Vyapam-hit Madhya Pradesh where the bill is on its way to actually becoming a law, activists cannot help noting the irony.
Worded almost exactly like the existing law in Maharashtra, Madhya Pradesh’s bill states that a litigant accused of being vexatious would be summoned and allowed one opportunity to present his case before the High Court comes to its decision. “But what if the person doesn’t receive the summons and is not able to attend that one hearing?” said Shrivastava, pointing out that the duty of issuing summons lies with the state machinery, of which the advocate general is a part.
“Besides, the bill does not allow the litigant to appeal against the ‘vexatious’ label in the High Court or the lower courts,” said Shrivastava. “And how many people can afford to appeal in the Supreme Court?”
The most restrictive aspect of the proposed law, adds Sheoran, is that it precludes the possibility of any genuine litigations by the same petitioner in the future. “Meanwhile, is the government itself covered in the bill?” he said, pointing to the fact that the India’s state and central governments are collectively the largest litigant in the courts today.
Dr Anand Rai, a Bhopal-based Right to Information activist and one of the whistleblowers in the Vyapam scam, calls the vexatious litigation bill “unconstitutional”.
“I agree that a lot of people file petitions in court without doing the hard work or research that add credibility to their pleas, but such a law would be completely wrong in a democracy,” said Rai.



DRT Solutions Weekly Mail – 376th Issue dated 24th July ’15

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(1) Tribunals take the Cut as Govt Slims the Bar   


The following news article is self explanatory:-

Tribunals Take the Cut as Government Slims the Bar

By Kanu Sarda

Published: 19th Jul 2015 06:57:51 AM


NEW DELHI: To increase the efficiency of the tribunals functioning in the country, the Ministry of Law and Justice has decided to reduce the present number of tribunals. The ministry has initiated the process of pruning the number from 35 to just nine as many of them are performing identical functions.

The law ministry was of the view that there is a possibility that some of the tribunals can be merged to avoid the overlapping functions being discharged by them. There are over 35 tribunals functioning across India dealing with subjects such as income tax, electricity, consumer protection, company laws and railway accidents.

The move is in tune with Prime Minister Narendra Modi’s policy of doing away with laws and procedures which create confusion and obstruct smooth governance. “We have constituted a committee to oversee if the proposed cutting down of tribunals is in sync with the present working of tribunals,” said a senior law ministry official.

Officials said that an early assessment by the law ministry shows that almost half of the existing tribunals and appellate bodies can be brought under the convergence plan. This will help the ministry concerned to save money and utilise human resources more efficiently.

“On an average, each bench in a tribunal or appellate body needs a staff of 12 people, and many of these bodies can be clubbed and brought under a common administrative umbrella,” the official added.

According to sources, Competition Appellate Tribunal could be converged with the Airports Economic Regulatory Authority Appellate Tribunal, since the latter has few appeals before it. Tribunals handling inter-state river water disputes could be brought under the National Water Tribunal.

The Department of Legal Affairs had written to all Union ministries and departments to furnish details of tribunals functioning under their administrative control and explain the possibility of merging the functions of tribunals with some other tribunals.

Another reason why the law ministry was forced to cut down the tribunals is that many of them had to adjudicate cases where its own ministry was controlling them. The Debt Recovery Tribunal and the Debt Recovery Appellate Tribunal function under the Ministry of Finance, the Armed Forces Tribunal functions under the Ministry of Defence while the Telecom Disputes Settlement and Appellate Tribunal functions under the Ministry of Communications and Information Technology. These ministries not only control tribunals but are also responsible for things such as infrastructure, finance, salaries and staff along with the rule-making power

A few years ago, the law ministry had sought administrative control over all tribunals functioning citing a 1997 Supreme Court order that said, “We are of the view that, until a wholly independent agency for the administration of all such tribunals can be set-up, it is desirable that all such tribunals should be, as far as possible, under a single nodal ministry which will be in a position to oversee the working of these tribunals. For a number of reasons, that ministry should appropriately be the Ministry of Law.” But amid protests by various ministries, the proposal failed to take off. 

(2) Fair Trial of Cheque Bounce Cases  


The following news article is self explanatory:- 

India: Fair Trial Of Cheque Bounce Cases In The Light Of The Amendment

Last Updated: 17 July 2015

Article by Singh & Associates



The section 138 of the Negotiable Instruments Act, 1881, deals with the offence pertaining to dishonor of Cheque for insufficiency, etc, of funds in the drawers account on which the cheque is drawn for the purpose of discharge of any legally enforceable debt or other liability. This section prescribes for penalties in case of dishonor of Cheques. The object of the Act is to encourage the usage of cheque and enhance the credibility of the instrument so that the flow of normal business transactions and settlement of liabilities remain unobstructed.1

The parliament of India had given its approval on 13.6.2015 for the proposal to promulgate the Negotiable Instruments (amendment) Ordinance, 2015; and the President of India has promulgated the same. The said amendments are sought to be brought in the Act vide this amendment Bill, because of Court Order stating that – "cases against those having defaulted on their Cheque payments could only be filed in Courts under which jurisdiction the bank Account of the accused fell." Therefore the Finance Minister Mr. Arun Jaitley said while introducing the Bill that "to address the difficulties faced by the payee or the lender of the money in filing the case under section 138 of NI Act, because of which a large number of cases are stuck, the jurisdiction for offence has been clearly defined keeping in view the interest of complainants".

There are five separate actions that lead to Cheque Bouncing Case. These are: (1) Drawing of the Cheque, (2) Presentation of the Cheque to the bank, (3) Returning of the Cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the Cheque demanding payment of the amount within 30 days of the dishonoring of the Cheque, and (5) Failure of the drawer to make payment within 15 days of the receipt of the notice.2

After the Bill is passed the Cheque Bouncing Cases can only be filed in a court under whose jurisdiction the Bank Branch of the payee where the Cheque is presented, falls. While approving the amendment, the government had said it is aimed at fast tracking the resolution of Cheque bounce cases while removing ambiguities' on jurisdictional issues.


The ordinance seeks to amend the NI Act and overturn a judgment issued by a three judge Bench of the Supreme Court in last August in 2014 in the case of Dasrath Rup Singh Rathod Vs State of Maharashtra3and ruled that "the place situs or venue of judicial inquiry and Trial of the offence must logically be restricted to where the drawee Bank is located." Supreme Court further said "We clarify that the place of the issuance or the delivery of the statutory notice or where the complainant chooses to present the Cheque for encashment by his Bank are not relevant for purposes of territorial jurisdiction of the complaints". This three member Bench of the Supreme court had actually overturned an earlier apex court ruling – the so called Bhaskaran Ruling delivered in 1999, which allowed the victims of 138 NI Act to file cases in a magistrate's court in any court having jurisdiction over the local areas where the five different actions took place". While doing so the Supreme Court said "the conclusion in Bhaskaran was influenced in large measure by curial compassion towards the unpaid payee/holder, whereas with the passage of two decades the manipulative abuse of territorial jurisdiction has become a recurring and piquant factor".

Therefore the proposed amendment is definitely going to bring in some relief to the victims. The present Ordinance proposes to inserts a new Sub Clause to the existing section 142 (sub-clause (2)), which reads as follows:

"(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction the Bank Branch of the payee, where the payee presents the Cheque for payment, is situated"4.

The Bill also introduces a new section (142A) in the NI Act, which reads as follows:

" (1) Notwithstanding anything contained in the code of Criminal Procedure, 1973 or any other judgment, decree, order or directions of any court, all cases arising out of section 138 which were pending in any court, whether filed before it, before the commencement of the Negotiable Instruments (amendment) Act, 2015, shall be transferred to the court having jurisdiction under sub section (2) of section 142 of sub section(1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under subsection (2) of section 142or the case has been transferred to that court under sub section (1), all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those Cheques were presented for payment within the territorial jurisdiction of that Court.

(3) If, on the date of the commencement of the Negotiable instruments (amendment) Act, 2015, more than one prosecution filed by the same person against the same drawer of the Cheques is pending before different courts, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub section 142(2) before which the first case was filed as if that sub-section had been in force at all material times."5

In order to create a suitable legal frame work for determination of the place of jurisdiction for trying cases of dishonor of Cheques under section 138 of NI Act, this new amendment Bill has been brought. The objective of the new amendments is to ensure that a fair trial is conducted keeping in view the interest of the complainant by clarifying the territorial jurisdiction for trying the cases for dishonor of Cheques.

The clarity on the jurisdictional issue for trying the cases of Cheque Bouncing would increase the credibility of the Cheque as a financial instrument. This would help the trade and commerce in general and allow the lending Institution, including banks, to continue to extend financing to the economy, without the apprehension of the loan default on account of bouncing of a cheque.6

This decision of the Union Cabinet has been widely welcomed throughout the country, and especially by the stake holders including industry associations and financial institutions.

In the absence of these new proposed provisions, the litigants were harassed for no cause, as they had to travel several times to a court in a different city to pursue the case adding to the cost of litigation. Sometimes there arose ridiculous situation where the litigants had to spend half of the Cheque amount or more than that on travel and hotel bills etc, in order to face the litigation and to get their own due amount.


Keeping the fact in view that about 21 Lac Cheque Bounce cases are pending in Indian Courts, the new law should help to consolidate the cases and quicken the judicial process. It will also be proved helpful for banking institutions which are battling the menace of bad loans. On the other hand, there arose some protest also against the new bill, giving their arguments that the new proposed laws in the NI Act could be used by the Corporate to harass the common man.

Answering the protest and questions arose to the new amendment bill, the Minister of State for finance - Mr. Jayant Sinha, insisted that it would boost the integrity of financial system and not lead to the harassment of the common man. The Hon'ble minister has further stated that "we need this law to strengthen the financial system. It will beef up the integrity of the system. We are moving towards a cashless society and we need this".7


1. http://pib.nic.in/newsite/PrintRelease.aspx?relid=118533

2 http://www.telegraphindia.com/1150611/jsp/frontpage/story_25118.jsp#.VY5dhBuqqko

3 2014(3)ACR2914,

4 http://www.prsindia.org/uploads/media/Negotiable%20instrument/Negotiable%20instruments%20bill-.pdf

5 http://www.prsindia.org/uploads/media/Negotiable%20instrument/Negotiable%20instruments%20bill-.pdf

6 http://pib.nic.in/newsite/PrintRelease.aspx?relid=118533

7 placement.freshersworld.com/power.../Current-Affairs-May-2015

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


DRT Solutions Weekly Mail – 375th Issue dated 17th July ’15

All Weekly mails right from 1st Issue to latest, click links on top of this page


(1) DRT Blocks Transfer of Shares  


The following news article is self explanatory:-

DRT blocks transfer of UB shares to Diageo

BENGALURU, July 16, 2015, DHNS:


The Debts Recovery Tribunal at Bengaluru has issued an interim injunction order restraining Unit Trust of India Investment Advisory Services (UTI-IAS) and Standard Chartered Bank (StanChart) from handing over 1,04,86,666 shares of United Breweries held by Vijay Mallya, and 1,04,64,288 shares of the same company jointly held by Vijay Mallya and Siddhartha Mallya, to liquor major Diageo or any other person or entity except the 13 applicant banks, including State Bank of India and United Bank of India.

 StanChart and UTI-IAS have also been restrained from dealing with the shares in any manner until further orders of the Tribunal.

The order by the district and sessions judge on Wednesday came on an interlocutory application (IA) made by the banks expressing the fear that StanChart/UTI-IAS were in the process of transferring these shares to Diageo despite an interim order from the Tribunal on June 19.

The banks had moved the tribunal against the defendants for recovery of Rs 6,203.35 crore. 

The banks contended that during the course of the proceedings, the defendants (Kingfisher Airlines, United Breweries, and Vijay Mallya) had given an undertaking that they would not transfer, alienate, or otherwise deal with their assets. 


The applicant banks said the undertaking was continued on every hearing until a temporary injunction was granted by the High Court on September 3, 2013.

Subsequently, the banks said they came to know through filings before the stock exchanges on September 2, 2013, that pledges had been created on the two lots of shares on August 30, 2013. 

They contended that it was done in violation of the undertaking and personal guarantees made by Vijay Mallya. They held that based on the market value of the shares, Rs 2,106.93 crore could be realised by them through the sale of these shares.

 According to the banks, Diageo had offered to repay the entire outstanding dues to StanChart subject to transfer of the shares to itself. 

They found the whole transaction suspicious because only Rs 850.85 crore in dues was outstanding to StanChart.

Without expressing an opinion on the merits of the case, the tribunal found the case fit for issue of an interim injunction order.


(2) Mediation Justice  


The following news article is self explanatory:-

Mediation; Justice for Whom ?

By: Anil Xavier | July 6, 2015


Recently (24th June 2015) a Judge of the Madras High Court (India) while hearing a bail appeal of a man convicted of raping a young girl, agreed to the bail request on condition that the man try “mediation” with the victim. Mediation is aimed at marriage. “The case before us is a fit case for attempting compromise between the parties…he [the rapist] should be enabled to participate in the deliberations as a free man and vent his feelings, open his mind and moorings. Where there is a will, there is a way,” the judge has been quoted as saying. The logic behind this “reference to mediation” seems to be that an unwed mother and her child are “lepers” in Indian society and they are better off enjoying the “respectable” status of a married woman, even if the husband is her rapist. The Judge further added that in another similar case “mediation was proceeding towards a happy conclusion”. In other words, wedding bells were ringing. This order provoked widespread protests mainly on the ground that there cannot be a compromise or settlement as it would be against the honour of the victim which matters the most.

Though not linked with the Madras High Court decision, the Supreme Court of India in another appeal relating to a rape case involving a minor in Madhya Pradesh (India), held on 1st July 2015 that mediation should not be encouraged in cases of rape or attempted rape.

Both the orders of the Madras High Court and the order of the Supreme Court of India has considered whether there could be “mediation” in a rape case. The fundamental test as to whether there could be mediation in a matter is to identify whether the parties to the dispute has the right or power to make a settlement. Under the criminal jurisprudence, in a case of rape, the prosecution is by the State and not by the victim. Section 376 of the Indian Penal Code, by which rape is made a criminal offence is a non-compoundable offence and therefore is not a matter which could be compromised by the parties.

Apart from the above, even if a matter could be resolved through mediation, it requires the consent of both parties. In the case which was referred to mediation by the Madras High Court, the consent or even the opinion of the victim was not sought by the Judge. The Judge decided that it was for her “benefit” that she participates in mediation. In fact when the press approached the girl, she expressed incredulity and dismay. She said, “It is unfair of the judge to do this to me. How can he do this without seeking my opinion? The rapist only wants to get out of jail which is why he agreed to mediation. Can the judge guarantee my safety if he is in this area? or my daughter’s safety? I am being forced to suffer again”.

I am reminded of a case that happened in 2005 in a village in Uttar Pradesh (India), where a 28 year-old Muslim woman – Imrana, was raped by her father-in-law. The local Muslim panchayat (council of elders) treating the case as adultery rather than rape, instructed her to divorce her husband and marry her father-in-law. Once she had done this, she had to treat her husband as her son. Imrana ignored their orders and continued living with her husband.

This was by a Panchayat, which we could say did not have the presence of any learned jurists. But what can we say about the orders of courts. This is not the first time that such shocking orders have been passed by some courts. Are courts stretching Alternative Dispute Resolution (ADR) to illogical levels? It seems some Judges are more anxious to become ambassadors of “mediation”, much more than their mandate.

Compulsory Mediation

Mediation should be at heart a voluntary process. Of course in some countries such as the USA and England, courts have encouraged parties to mediate and such court ordered mediations have been shown to be successful. But the issue is: Can such court-ordered mediations be compulsive?

Mediation puts the responsibility for finding a solution into the disputant’s hands, giving them back the power to resolve it themselves, with the assistance of an impartial facilitator. When we give such empowerment to the parties, I feel compulsive mediation cuts the root of that empowerment.

There is a very strong argument that courts’ refusal to hear cases and referring them to mandatory mediation is a breach of Article 6(1) of the European Convention of Human Rights, which provides for the right to a fair trial. Mediation should be promoted with the needs of the people in mind and not as an argument for decreasing courts backlogs.

Mediation & Restorative Justice

Coming back to the issue of settlement of criminal matters, we need to keep in mind that a crime is not just the violation of the law, but also the violation of people and relationships. This violation creates an obligation rather than a guilt and justice, in its true sense. This could be resolved ideally only when there is involvement of all the stakeholders of a crime, i.e., the victims, the offenders and the community members, in an effort to put things right. The central focus is, not on the offenders getting what they deserve, but on attending to the needs of the victim and offender, for repairing the injury caused in the best possible manner.

Justice is a nebulous concept. Aristotle divided justice into two main parts: distributive justice – the sharing of social benefits and burdens – and corrective justice – the rectification of injustice. Bentham also dichotomised justice, considering procedural justice – fairness in processes – and substantive justice – fairness in rights and obligations.

Taking these approaches together, we need to have a legal system which allows parties to fairness in process and rectification of injustice. There cannot be a total ban of any opportunity to settle, if the parties “so desire”. The order of the Supreme Court has closed the doors for settlement.

When we talk about criminal offences, we also need to consider related emotions of the parties like hurt feelings, trauma, dignity, social reputation etc. This could change in varied circumstances and there has to be a way to address these issues. There is a good example of this issue in an old Chinese movie, viz., “The Story of QiuJu” QiuJu is a peasant who lives in a small village with her husband. She is in the final trimester of her pregnancy. One day while her husband was conversing to the head of the community, a miscommunication ensued and the headman beats her husband. Even though she goes to the Police she does not get justice. For almost the entire part of the movie she goes to different authorities for getting justice. Finally when QiuJugoes into labor and there was no one to help her, the headman with a group of local men carries her to the hospital, where she gives birth safely to a healthy baby boy.QiuJu and her husband thank the headman for saving her life and invite him for the “one-month party” of the child. But he doesn’t come for the party and the local policeman shows up to tell QiuJu that the headman has been arrested and sent to jail based on her complaint. The movie ends with QiuJu looking tormented!

Our traditional criminal justice system is a system of retributive justice – asystem of institutionalized vengeance. The system is based on the belief that justice is accomplished by assigning blame and administering pain, where it is believed that “justice equals punishment”. But in the recent years, a relevant question is being asked – “justice for whom?” In many cases, punishment often leaves them unsatisfied and it fails to address the other important needs of the victim, such as, consolation for their loss, easing their trauma or mending their wounds. This failure of the criminal justice system to cater for the complete needs of the victims has, over the past years, seen the emergence of alternate methods of criminal justice, the prominent one being the theory and practice of restorative justice.

Restorative justice is a new way of looking at criminal justice that focuses on repairing the harm done to people and relationships rather than punishing offenders.This should not be confused with mediation in its present form. We need to have clear guidelines for settlement though restorative justice mediation. Restorative justice is about the idea that because crime hurts, justice should heal.

A developed or culturally matured society should have this option for resolving criminal offences through restorative justice mediation. Right now we find that when parties settle criminal matters outside court, the law compels them to tell lies or file false statements in court to wriggle out of criminal trials. We have seen in umpteen numbers of criminal cases where the victims or de-facto complainants turn hostile and speak against the prosecution case. They are left with no choice of telling the truth because that would upset the settlement and again wreck the relationship.

The index of a developed community should necessarily have laws that would encourage people to speak truth without fear and uphold their dignity and integrity and not compel them to speak falsehood.


I hope the ongoing discussion about mediation in rape cases would help to develop mediation at various levels and also help to advance mediation activities towards a higher level of understanding, acceptance, respect and use. It also shows that what is needed is a culture change about mediation, supported by relevant guidelines.

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DRT Solutions Weekly Mail – 374th Issue dated 10th July ’15

All Weekly mails right from 1st Issue to latest, click links on top of this page


(1) Crime Never Dies  


The following news article is self explanatory:- 

India: Crime Never Dies

Last Updated: 24 June 2015

Article by Shweta Vashist and Vishal Gera


"Nullum tempus occurrit regi", which originated in the 1250s, was first used by Bracton in his De legibus et consuetudinibus Angliae. The literal meaning of this maxim is that the crown may decide to proceed with action that may be barred by time and that the lapse of time does not bar the right of the crown. On the other hand, "vigilantibus et non dormientibus jura subveniunt", which is a maxim of Roman law, implies that the law shall only assist those who are vigilant and not those who are careless or lazy about their rights.

Chapter XXXVI of the Code or Criminal Procedure, comprising of Sections 467 to 473, prescribes distinct limitation periods for taking cognizance of various offences, depending upon the gravity of those offences interlinked with the punishments, respectively. The rationale behind the inclusion of a period of limitation was that the testimony of witnesses becomes weaker with the lapse of time and memory and consequently the chances of errors in judgments increase, since the evidence becomes weaker. In addition to this, the period of limitation would put pressure on the system of the criminal prosecution to ensure that the offender is convicted and punished quickly to ensure speedy justice. The deterrent effect that the criminal justice system aims at, will stand defeated in case the punishment has not been granted before the memory of the offence gets washed off from the heads of those affected by it. This Chapter is clearly in consonance with the concept of fairness of trial, as enshrined in Article 21 of the Constitution of India.

The object of the Legislature, while introducing a period of limitation can be ascertained from the statement of the Joint Committee of the Parliament, where it was stated that:

"These are new clauses prescribing periods of limitation on a graded scale for launching a criminal prosecution in certain cases. At present there is no period of limitation for criminal prosecution and a court cannot throw out a complaint or a police report solely on the ground of delay although inordinate delay may be a ground for entertaining doubts about the truth of the prosecution story. Periods of limitation have been prescribed for criminal prosecution in the laws of many countries and the Committee feels that it will be desirable to prescribe such periods in the Code as recommended by the Law Commission".

Section 468 of the Code of Criminal Procedure lays down the period of limitation for taking cognizance of an offence. According to this Section, if an offence is punishable with fine only, the period of limitation shall be six months and if the offence is punishable with imprisonment for a term that does not exceed one year, the period of limitation is one year. Section 468, further makes it clear that if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years, the period of limitation shall be three years. However, this Section does not lay down the period of limitation for offences punishable with imprisonment exceeding three years. Meaning thereby there is no outer limit qua the limitation in relation to the offences having punishment for three years or more. Thus, Section 473 of the Code of Criminal Procedure enables the Court to take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interests of justice.

In Asst. Customs Collector, Bombay v. L.R. Melwani, AIR (1970) SC 962, 965, the Supreme Court held that:

"The question of delay in filing a complaint may be a circumstance to be taken into consideration in arriving at the final verdict. But by itself it affords no ground for dismissing the compliant".

The five judges' bench of the Supreme Court of India, consisting of P. Sathasivam CJ, Dr.B.S.Chauhan, Ranjana P.Desai, Ranjan Gogoi and S.A.Bobde, JJ, in the case titled as " Sarah Mathew Vs. Institute of Cardio Vascular Diseases & Ors."; 2014(2) SCC 62, sought to ensure justice to the citizens of the country, by striking a balance between the legal maxim "nullum tempus aut locus occurit regi', and the legal maxim 'vigilantibus et non dormientibus, jura subveniunt'.

This aforesaid decision of the Apex Court delivered and penned down by Justice Ranjana. P. Desai puts a rest to the conflicting views expressed by the court in the following authorities:-


Krishna Pillai Vs. T.A. Rajendran and Anr.; (1990) supp. SCC 121, where the Court stated that no court shall take cognizance of any offence under the Child Marriage Restraint Act, 1929 after the expiry of one year from the date on which the offence is alleged to have been committed.


Bharat Damodar kale Vs. State of Andhra Pradesh; (2003) 8 SCC 559, where it was held that for the purpose of computing the period of limitation , the relevant date if the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of a process by court. The aforesaid "Bharat Kale", was further referred and relied upon in the judgment titled as "Japani Sahoo Vs. Chandra Sekhar Mohanty; (2007) 7 SCC 394, where the Court upheld the decision given by it in the "Bharat Kale" case and stated that mere delay in approaching a Court of Law would not by itself afford a ground for dismissing the case though it may be a relevant circumstance in reaching a final verdict.

In the aforesaid "Sarah Mathew" case, reliance has been placed upon the Law Commission's Report and the report of the Joint Parliamentary Committee, which made it clear that Chapter XXXVI, dealing with the limitation for taking Cognizance of certain offences had been inserted into the Code of Criminal Procedure to make the prosecution of complaints a quick process and consequently make the criminal justice system more orderly, efficient and just. The Court states that the object of putting a bar of limitation, in light of Article 21 of the Constitution, was to prevent the parties from filing a case after a long time, which many times, results in the disappearance of material evidence and filing of vexatious and belated prosecutions long after the date of the offence. However, Chapter XXXVI of the Code of Criminal Procedure does not undermine the right of the accused. It aims to strike a balance between the interest of the complainant and the interest of the accused. While this limitation encourages diligence by providing for limitation, it does not intend to throw out all prosecutions on the ground of delay. It has further been stated that where the legislature wanted to treat certain offences differently, it provided for limitation in the section itself, for instance, Section 198(6) and 199(5) of the Code of Criminal Procedure.

The Supreme Court, in "Sarah Mathew" case, laid down the meaning and the scope of term 'taking cognizance'. When on a petition or complaint being filed before a Magistrate, he applies his mind or takes judicial notice of an offence, with a view to initiate proceedings in respect of an offence which is said to have taken place, the Magistrate is said to have taken cognizance of the offence. The Court states that Section 473, which provides for the extension of the period of limitation in certain cases, is a nonobstante clause, which has an overriding effect on Section 468 of the Criminal Procedure Code. Reliance has been placed on the decision of the Court in Vanka Radhamanohari vs. Vanka Vankata Reddy and Ors. (1993) 3 SCC 4, where the Court observed that the basic difference between section 5 of the Limitation Act and Section 473 of the Code of Criminal Procedure is that, in order to exercise the power under Section 5 of the Limitation act, the onus is on the applicant to satisfy the court that there was sufficient cause for condonation of delay, whereas, Section 473 enjoins a duty on the court to examine not only whether such delay has been explained, but as to whether it is the requirement of justice to ignore such delay.

The Court, while dealing with the two contradicting maxims, 'vigililantibus et non dormientibus, jura subveniunt' and 'nullum tempus aut locus occurrit regi', states that Chapter XXXVI of the Code of Criminal Procedure which provides the limitation period for certain types of offences for which lesser sentence is provided, draws support from the maxim 'vigilantibus et non dormientibus jura subveniunt" and that even certain offences such as section 384 or 465 of the Indian Penal Code, which have lesser punishment, may have serious social consequences and hence, the provision for the condonation of delay was made. The Court was thus, of the opinion that Chapter XXXVI is a part of the Code of Criminal procedure, which is a procedural law and it is a well settled principle that procedural laws must be liberally construed to serve as handmaid of justice and not as its mistresses.

Hence, the Court, in this matter, held that the decision given by the Court in the "Krishna Pillai", matter would not be the authority for deciding as to what is the relevant date for computing the period of limitation under Section 468 of the Code of Criminal procedure since in that case, the Court was dealing Section 9 of the Child Marriage Restraint Act, 1929, which is a special Act and there is no reference to Section 468 or 473 of the Code of Criminal Procedure in that judgment. Also, the Hon'ble Supreme observed that the said judgment is restricted to its own facts and constitution bench does not endorse the view taken in "Krishna Pillai", which was by 3 Judges Bench. Finally, the Hon'ble Supreme Court in "Sarah Mathew" (supra), held that "Bharat Kale" (2003(8) SCC 559) which is followed in "Japani Sahoo" (2007(7) SCC 394) lays down the correct law.

In the light of the same, the Court held that the relevant date, for the purpose of computing the period of limitation under Section 468 of the Criminal Procedure Code is the date of filing of the complaint or the date of institution of prosecution and not the date on which a Magistrate takes Cognizance.

One of the most well-recognized principles of criminal jurisprudence is that "crime never dies'. Even though this concept has been well-established, its implementation raised several questions with regard to the trigger point for computing the period of limitation. The Supreme Court, in this landmark judgment has provided a much-required clarification as to the ambiguity created by the contradicting views qua the running points with respect to limitation.

* Shweta Vashist Intern [5th Year, University School of Law and Legal Studies]


(2) HC Calcutta Rules in Favour of Borrower – Discovery of Documents  


One of our clients informed that in their case, DRT Kolkata has issued Recovery Certificate despite their pending case before HC Calcutta regarding discovery of documents. Now the said HC has ruled in favour of the borrower. Thus the recovery certificate becomes null and void as the DRT has to proceed with the new trial after the required documents have been made available to the borrower. The progress in this case will be reported after we receive the details.

The above has proved our contentions past several year that first the discovery of documents has to be done and then the trial in the DRT may proceed.

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DRT Solutions Weekly Mail – 373rd Issue dated 3rd July ’15

All Weekly mails right from 1st Issue to latest, click links on top of this page


(1) Serious Flaws in NJAC Act  


The following news article is self explanatory:-

The most serious flaw in NJAC is that any two members of the Commission can veto the decision of the majority which would result in stalling appointments; Interview with Eminent Jurist and Senior Advocate P.P.Rao

By: Dr.Lokendra Malik | July 1, 2015


A doyen of Constitutional Law,Senior Advocate P.P. Rao has been a natural successor to legends such as H.M. Seervai, M.C. Setalvad, C.K. Daphtary, N.C. Chatterjee, S.V. Gupte, A.K. Sen, Niren De, whom he all assisted during his early days.

He was enrolled as an Advocate with Bar Council of Delhi in 1967 and thereafter shifted practice to the Supreme Court. He was designated as a Senior Advocate in 1976. He was elected the President of the Supreme Court Bar Association in 1991, and in 2006, he was awarded the Padma Bhushan.

In his early days he represented the State of Andhra Pradesh as Advocate on Record in ‘Kesavananda Bharati’ and assisted Attorney-General Nirin De in ‘ADM Jabalpur’. Later he had argued a number of leading Cases including A.R. Antulay v R.S. Naik, 1988 Supp (1) SCR 1, S.R. Bommai v Union of India, (1994) 3 SCC 1, P.V. Narasimha Rao v State, (1998) 4 SCC 621, , Ashok Kumar Thakur v Union of India, (2008) 6 SCC 1, M.S. Gill v Chief Election Commissioner, (1978) 1 SCC 403, M. Nagraj v Union of India, (2006) 8 SCC 212 and Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417

Be it from defending the President Rule with secularism as its basis, from opposing evil of capitation fees in educational institutions, the octogenarian has appeared in several landmark cases that have shaped the law of the land. A legend in the true sense, Livelaw presents P.P Rao in a freewheeling interview. 

LiveLaw : Sir, please tell us something about your entry into legal profession. Why did you leave law teaching for practice? Is law practice better than teaching?

P.P.Rao : As a child, I developed a liking for the legal profession after seeing my uncle and eldest brother, who were lawyers, practising before a District Munsif’s Court at Kanigiri in Andhra Pradesh. They used to work very hard for their clients in distress, earn well, lead a comfortable life, command respect from one and all in the town, render public service and help the needy. By the time I obtained my BA degree, the financial condition of the family had deteriorated due to successive failure of crops and sisters’ marriages for which loans had to be raised. The family was unable to fund my further studies. After serving as a teacher in the District Board High School, Chittoor for one academic year, I joined the LLB course in the Law College of Osmania University at Hyderabad which was then an evening college. During day time I used to work for my living and in the evening attend my classes and study law books late night. After successful completion of LL.B. and LLM courses, as the family was still not in a position to support me, I could not join the Bar. Instead,  I joined the teaching line. I was lucky to get an opening in the prestigious University of Delhi as a Research Assistant initially and subsequently, as a Lecturer in the Faculty of Law. I liked the teaching and legal research. Inspired by my colleagues, I started contributing case comments and articles to law journals and  newspapers.  The area of my specialisation was constitutional law.  While working in the Law Faculty, I came in contact with Mr. N.C. Chatterjee, a leading Senior Advocate of the Supreme Court and a Member of Parliament, in 1963 when he sought my assistance for his academic work. On his initiative, in 1966, we jointly wrote the book “Emergency and Law”, published by Asia Publishing House, New York. The reviews were rewarding. After some time, he advised me to join the Bar saying, “You have taught enough. Now you join my Chamber and practise law.” I followed his advice. That was the turning point in my life and career. It was unexpected fulfilment of a long cherished desire.

Both teaching and advocacy are noble professions, being service oriented. A person who follows the traditions and ethics of either profession, will have ample job satisfaction.   Success would follow.

 LiveLaw : Sir, what is your observation about the working of the Supreme Court during the time when you entered into that court? What was the level of lawyers at that time?

P.P.Rao : When I joined the profession in July 1967, the Supreme Court was functioning with four Benches.   The Judges and leaders of the Bar maintained very high standards. The Judges were mostly well grounded in law who had distinguished themselves while practising at the Bar and subsequently after their elevation. The standards of selection for elevation were more rigorous in those days. The Bar was led by M.C. Setalvad, who was the symbol of dignity, propriety and probity. The standards set by him were followed by the entire Bar. All senior advocates used to charge a fixed and modest fee for appearance at admission, for a conference and for appearance at the final hearing of a case irrespective of the stakes involved. Most of them observed the professional etiquette expected. The Bar enjoyed a great reputation. 

LiveLaw : Sir, did you participate in the famous Kesavananda Bharati case? What was the actual bone of contention in that matter? Why the Chief Justice tried to review that judgment during emergency?

P.P.Rao : In Kesavananda Bharati’s case, I have represented the State of Andhra Pradesh as Advocate on Record.  I was led by P.  Ramachandrareddy, Advocate General for the State. To me, it was a great education to listen to the erudite arguments of seasoned counsel like N.A. Palkhivala, H.M. Seervai, Niren De and others. The bone of contention was whether the Parliament’s power to amend the Constitution was unfettered or subject to limitations. This question was raised earlier in Shakani Prasad Singhdeo v Union of India, 1952 SCR 89 = AIR 1951 SC 458, in Sajjan Singh v State of Rajasthan, (1965) 1 SCR 933 = AIR 1965 SC 845 and in I.C. Golak Nath v State of Punjab, (1967) 2 SCR 762 = AIR 1967 SC 1643,  but it was finally settled in Kesavananda Bharti by the largest ever Bench of thirteen Judges by  a slender of majority 7:6 declaring that Article 368 does not enable the Parliament to alter the basic structure or framework of the Constitution. It was a historic pronouncement, unprecedented in the constitutional history of any country.  There was mixed reaction. Several eminent jurists criticised the judgment.  The Central Government could not reconcile to it. On its behalf,  a request was made to the Chief Justice of India for a review of the judgment. The Chief Justice assembled a Bench of nine Judges to consider whether the ruling in Kesavananda Bharti required reconsideration. After hearing the powerful arguments of Palkhivala resisting reopening of the case, the Bench was dissolved. Both Justice H.R. Khanna in his book “Neither Roses Nor Thorns” and T.R. Andhyarujina in his book “The Kesavananda Bharati case: The untold story of struggle for supremacy by Supreme Court and Parliament” have written about the abortive attempt to reopen Kesavananda Bharati.

LiveLaw : Sir, what is the overall impact of Kesavananda Bharati judgment on the Indian constitutional law? Has it protected the rule of law and democratic system in our country or is it still an unwelcome judicial product?

P.P.Rao : Notwithstanding the widespread criticism of the law declared in Kesavananda Bharati’s case, the wisdom of the ruling came to be appreciated when Indira Gandhi’s Election Appeal was decided declaring that the obnoxious 39th amendment to the Constitution was violative of the basic structure of the Constitution by an unanimous Constitution Bench consisting of a majority of Judges who had dissented in Kesavananda Bharti. Thereafter, most of the critics of Kesavananda Bharati turned admirers of the law declared therein. The rule of law and parliamentary democracy has been declared to be part of the basic structure of the Constitution by the Supreme Court. The wholesome ruling has its side effects. As the Supreme Court merely illustrated what the basic structure of the Constitution comprises of without exhaustively enumerating all the components of the basic structure, there is uncertainty as to the precise extent of power of Parliament to amend the Constitution. As a result, the Judiciary has emerged as the most powerful wing of the State in comparison to the Legislature and the Executive and it has been expanding the scope of judicial review from case to case.   I have dealt with Basic Features of the Constitution, in detail,  in my Dr. Alladi Krishnaswamy Iyer Memorial Lecture delivered in 1999, an abridged version of which was published in (2000) 2 SCC Jour 1. 

LiveLaw : Sir, how do you see the first judicial supersession in 1973? Could it not have been avoided and what has been its impact on independence of the judiciary?

P.P.Rao : The supersession of the Judges in 1973 was a thoughtless knee-jerk reaction of a powerful Central Government which could not reconcile to the judgment in Kesavananda Bharti. Supersession was ill advised. It has, to some extent, destabilised the judiciary and adversely affected independence of the judiciary.  The search for committed judges started simultaneously.   The Executive became increasingly over active in the matter of appointments and transfers of Judges of the Supreme Court and the High Courts thereafter.

LiveLaw : Sir, what is your view about the appointment of Chief Justice A. N. Ray? Was Ray a committed judge?

P.P.Rao : Chief Justice A.N. Ray was upset and baffled when he was sounded about his appointment as Chief Justice of India superseding three of his senior judges. He was faced with a Hobson’s choice. If he declined the offer, his immediate junior would be elevated as Chief Justice of India and he would have to serve under him or else, to avoid such embarrassment, he would have to resign his judgeship. Most reluctantly he accepted the offer. It was a painful decision.   A.N. Ray was an honest Judge. In every case and on every question of law, very often, two views are possible and the Judge has to choose one of them.   He happened to take a possible view in all the cases which came before him, including the Bank Nationalisation case, Privy Purse case and Kesavananda Bharati’s case.  I do not consider him to be a committed Judge.

LiveLaw : Sir, what is your view about the 1975 Emergency? Why was it declared and how was it related to the Indira Nehru Gandhi judgment delivered by Justice V. R. Krishna Iyer?

P.P.Rao : The Emergency was an aberration of Indian democracy. It was wholly avoidable. If only Justice V.R. Krishna Iyer who was only a vacation Judge had continued the unconditional stay granted by Justice Jagmohan Lal Sinha of the Allahabad High Court after declaring Mrs. Gandhi’s election void and directed posting of the stay petition before a regular Bench, there would have been no occasion for Emergency at all. The long conditional order of stay granted by him sparked of nation-wide agitation by the leaders of the opposition demanding the resignation of the Prime Minister. The Prime Minister was misled by her short-sighted advisers into getting the proclamation of Emergency issued by President Fakhruddin Ali Ahmed.

LiveLaw : Sir, how do you assess the ADM Jabalpur judgment particularly the role of Justice H. R. Khanna in that case?

P.P.Rao : I welcome the judgment of Justice H.R. Khanna in ADM Jabalpur as I do the dissenting judgment of Lord Atkin in Liversidge v Anderson, notwithstanding the fact that I assisted Attorney-General Nirin De in the case for the Union Government. Justice H.R. Khanna’s portrait in Court No.2 is eloquent testimony of acceptance of his judgment by an overwhelming majority of the Bar.

LiveLaw : Sir, the issue pertaining to judges’ appointment has been a critical one in our country ever since the first judges case. What is your observation about the judges appointment in the country and how do you assess the mechanism of collegium system? Are you in favour of NJAC or against it? 

P.P.Rao : In the beginning, there was no problem. Prime Ministers Jawaharlal Nehru and Lal Bahadur Shastri showed great respect to the judiciary and accepted almost all the recommendations made by successive Chief Justices of India for appointment of Judges of High Courts and the Supreme Court. After the supersession of Judges in 1973, the attitude of the Central Government changed. I was one of the lawyers who argued for the Collegium system before the nine-Judge Bench in 1993 with the fervent hope that if the judiciary had the last word in the matter of appointments and transfers of Judges; it would strengthen the independence of judiciary. We all hoped that the best of candidates would be selected by the Collegium and vacancies would not remain unfilled for long periods. Experience has belied our expectations.  Justice J.S. Varma, the author of the majority judgment in Supreme Court Bar Association v Union of India, (1993) 4 SCC 441, himself was disillusioned about the functioning of the Collegium system. Then we started demanding entrusting the task to a Judicial Commission.   The National Commission to Review the Working of the Constitution constituted by the NDA Government led by Shri Atal Behari Vajpayee recommended a National Judicial Appointments Commission with five members. Parliament has now made it a six member Commission consisting of the Chief Justice of India, two senior most Judges, the Law Minister and three eminent persons, one of whom shall be a member of a Scheduled Caste, Scheduled Tribe, Backward Class, minority or a woman. The words “eminent persons” are vague and do not reflect the ability to select suitable candidates for higher judiciary. Another and more serious flaw in NJAC is that any two members of the Commission can veto the decision of the majority of members which would result in stalling appointments on the one hand and opening the door for bargaining by the Executive with the Judiciary on the other which would not at all be conducive to the maintenance of independence of judiciary which needs to be strengthened and not diluted any further.

LiveLaw : Sir, it is a matter of fact that Article 356 has been highly misused in our country. It is only the S R Bommai case which put certain breaks on its misuse by the Central Government. How do you see the Bommai judgment and how the President of India can encourage the Union Cabinet to handle such situations? President K. R. Narayanan exercised his referral powers two times. Do you think President A. P. J. Abdul Kalam might have also exercised this option in case of Bihar Assembly dissolution case in 2005?

P.P.Rao : There is no doubt that Article 356 has been largely misused. Justice Sarkaria Commission has noticed this fact. The law declared in S.R. Bommai was an operational necessity.   It is settled law that the President of India is not a rubber stamp.   When the Union Cabinet advises him to impose President’s rule in a State, he has to apply his mind like a statesman and use his exalted position and good offices to persuade the Government to act wisely and objectively.  Like the British Monarch, he has the right to be consulted, the right to encourage and the right to warn, in the words of Walter Bagehot.   I do not find fault with the decision to dissolve the Bihar Assembly taken at a time when no party was in a position to form a stable Government and the single largest party in the State Assembly had declined to form a Government. The decision was taken only after horse trading of MLAs has started. I am unable to appreciate the majority judgment of the Supreme Court in Rameshwar Prasad v. Union of India (2006 2 SCC 1 finding fault with the dissolution of the Assembly.  On the other hand, the dissenting judgments of Justices K.G. Balakrishnan and Arijit Pasayat appeal to me.   In my opinion, President Kalam did not commit any indiscretion or impropriety as the Constitution does not contemplate Governments formed by horse-trading of unscrupulous members of a Legislature.

LiveLaw : Sir, what is your view about the standard of adjudication of matters in the Supreme Court? Do you think the Supreme Court should decide all types of cases or should it confine itself to constitutional questions only? Is there any need to establish National Courts of Appeal in all four major metropolitan cities of India?

P.P.Rao : Over the years, in the absence of good governance free from corruption, nepotism, favouritism, responsive to the people, the volume of litigation has increased to unmanageable proportions and arrears of cases have been mounting up resulting in deterioration in the quality of justice administered. Establishment of Regional Courts of Appeal would go a long way in easing the present congestion. Appointment of Judges of impeccable integrity and ability is also essential.  Thereafter the Supreme Court may confine itself largely to constitutional questions and other questions of law of national importance. To liquidate the accumulated arrears of cases, I suggest introducing the shift system in all the Courts utilising the services of recently retired Judges and judicial officers who enjoy high reputation for their ability and integrity.

LiveLaw : Sir, kindly tell us something about your prominent appearances in the Supreme Court particularly the landmark cases which guided the constitutional destiny of the country? 

P.P.Rao : I had the privilege of assisting the Supreme Court in laying down the law in several cases in constitutional law, election law and administrative law including service law. A.R. Antulay v R.S. Naik, 1988 Supp (1) SCR 1, S.R. Bommai v Union of India, (1994) 3 SCC 1, P.V. Narasimha Rao v State, (1998) 4 SCC 621, , Ashok Kumar Thakur v Union of India, (2008) 6 SCC 1, M.S. Gill v Chief Election Commissioner, (1978) 1 SCC 403, M. Nagraj v Union of India, (2006) 8 SCC 212 and Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417 are some of the important cases wherein I appeared.

The first three cases were the most difficult ones which gave me tremendous job satisfaction.

LiveLaw : Sir, how do you see the judgments of the Supreme Court and High Courts? Are they qualitative or just quantative? How our judges can take inspiration from the judgments of US Supreme Court, U. K. Supreme Court and other prominent constitutional courts in the world?

P.P.Rao : India has produced outstanding judges whose judgments have been acclaimed all over the world. It is difficult to generalise judgments of the Supreme Court and High Courts. Good Judges ably assisted by competent lawyers write sound judgments. There are good Judges in the High Courts and in the Supreme Court even now who can compare with the best in the world. Judges all over the world take inspiration from one another. Judgements of Indian Supreme Court are cited by Judges of other countries.  The quality of a judgment reflects the quality of the Judge.

LiveLaw : Sir, is the Supreme Court of India delivering decisions or justice? What is your view about the affordable access to justice? Senior lawyers charge heavy fees and the average people are not able to engage them. So is the legal profession basically a service of mankind or only a moneymaking business? Please throw some light on these issues.

P.P.Rao : The endeavour of every Judge is to do justice barring stray exceptions. Access to justice is not denied to anyone. Legal aid takes care of indigenous litigants.   The Middle Income Scheme administered by the Supreme Court Legal Aid Committee takes care of the Middle Income Group of litigants. There are competent lawyers available in the Bar to suit everyone’s pocket. Some of the young lawyers are very good.  In the nature of things, it is not possible for prominent senior lawyers to take up every case. One way of limiting their work within manageable level is to charge a high fee.  Leading lawyers do not charge fees from poor litigants.  They also render legal aid.  Legal profession is service oriented and it has to remain as such. Every lawyer should have a fixed schedule of fees irrespective of the stakes involved in a case, which may be revised from time to time.   A liberal profession should never become a money making business.  Those who indulge in money making violate the professional ethics.

LiveLaw : Sir, how do you see the state of legal education in the country? What is the impact of National Law Schools on legal education? Which law school is best? Who are the brilliant professors whose contribution has enriched the legal education in our country? Do you think that law professors should also become judges of Supreme Court and High Courts in the category of distinguished jurists? Is there any distinguished jurist in Indian legal academia?

P.P.Rao : The state of legal education is deplorable. Bar Council of India has not been able to maintain much less promote high standards of legal education.  The Advocates Act requires a thorough revision. National Law Schools, by and large, have been imparting education of better quality but I have reports that in quite a few of them, discipline is lacking and the students are not immune from the menace of drugs etc. The National Law School of India University, Bangalore is generally rated as the best. NALSAR Hyderabad and NLU Delhi are catching up.  India has produced several brilliant professors and scholars. Professors G.C.V. Subba Rao, T.S. Rama Rao, P.K. Tripathi, M.P. Jain, Lotika Sarkar, Upendra Baxi and N.R. Madhava Menon, among others, belong to this class. The Constitution contains a provision for appointment of Jurists as Judges of Supreme Court, but no appointment has been made so far from this category. There should be a similar provision for appointment of Jurists as Judges of High Courts as well. There are distinguished Jurists.   A few of them have held or are holding the office of Vice Chancellor in National Law Universities.

LiveLaw : Sir, what is the contribution of Justice V. R. Krishna Iyer for the judicial system of the country? Was he not more eminent than any Chief Justice? How his judgments affected the judicial adjudication in the country?

P.P.Rao : Justice V.R. Krishna Iyer was a rare Judge.  He has been hailed by F.S. Nariman, the doyen of the Indian Bar,  as one of the two pathfinders in the Supreme Court, the other being Chief Justice K. Subba Rao. Justice Iyer was one of the outstanding Judges of the Supreme Court by any reckoning. He raised the stature of the Supreme Court in the eyes of the world and opened the doors of the Supreme Court to Public Interest Litigation. His contribution to the evolution of law, particularly human rights has been immense. He was a source of inspiration to many Judges and Jurists in the country and outside the country. 

LiveLaw : Sir, what is your advice for the young lawyers? What is the key of success in legal profession?

P.P.Rao : My advice to young lawyers is to work hard, be straight and honest, conduct yourself with respect to the Court and consideration for the client. Equip yourself with the latest developments in law and current affairs. Don’t become impatient or angry in the discharge of your professional duties. Follow the traditions of the Bar, read the biographies and including autobiographies of great Judges and eminent lawyers.  Never stoop law. Maintain self-respect and dignity of the profession.

LiveLaw : Sir, besides being a busy lawyer you also spare time for writings and have written a number of books and articles. How do you manage works, litigation as well as writings? Recently you published a book titled Reclaiming the Vision from the LexisNexis Company, what is the message which you gave through that book to the readers? Are you also writing your memoirs?

P.P.Rao : I generally try to comply with requests for an article or an interview sparing the time required cutting into my leisure. I consider it uncivilised to turn down a genuine request without justification. My book is a collection of my writings from time to time. I am glad that it has been received well by the readers. The message if at all is ‘express your thoughts freely on issues of general interest.’ Several friends and well wishers have been repeatedly asking me to write my memoirs. I have started jotting down a few but I do not know when I will be able to compete the work.

LiveLaw : Sir, please tell us something about the present state of governance in the country? Do you think the country is passing through a difficult time particularly in terms of secular order and inclusive governance?

P.P.Rao : The state of governance is not at all satisfactory. The country is passing through a difficult period. Aims and objects of the Constitution are yet to be realised. Promotion of fraternity assuring the dignity of the individual and the unity and integrity of the nation has not been receiving due attention.  Caste based reservation policy and communal vote bank politics keep the people divided. The country has failed to bridge the gap between the rich and the poor to any appreciable extent. Unless Parliament undertakes electoral reforms, administrative reforms and judicial reforms and in particular by laying down by law strict conditions of eligibility for contesting at an election or for holding a high office,   good governance will remain a distant goal.

LiveLaw : Sir, what is the role of the Chief Justice of India in the judicial system of the country? Kindly tell us some names of some bright former Chief Justices who have been path-finders?

P.P.Rao : As head of the judicial fraternity, the Chief Justice of India can, by becoming a role model, improve the judicial system. Among the Chief Justices before whom I had the privilege to appear, I consider Chief Justices M. Hidayatullah, S.M. Sikri, Sabyasachi Mukherjee  and M.N. Venkatachaliah as  outstanding Chief Justices whose portraits deserve to be unveiled in the Supreme Court.

Dr. Lokendra Malik  is practicing as an Advocate in the Supreme Court of India with former Union Law Minister Salman Khurshid. He did his Ph.D. in Indian Constitutional Law from Kurukshetra University, Kurukshetra and also earned the LL.D. (Post-doctoral) degree from the National Law School of India University, Bangalore in the area of Indian Constitutional Law on Constitutional Position of the President of India under the worthy supervision of Vice-Chancellor Professor R. Venkata Rao. Before joining law practice, Dr. Malik has also been a professor of law at the Indian Institute of Public Administration, New Delhi and taught senior civil servants. Public law is his main area of interest in terms of litigation, academic writings and research. He has been a member of Internship Committee of the Lok Sabha and is also a member of some other prominent academic bodies such as Indian Law Institute and Indian Institute of Public Administration.

(2) Illegal Physical Possession by the Bank  


In previous weekly mails, we mentioned about the illegal physical possession by the Bank. In the very beginning, when the borrower informed us about the illegal possession by the bank, we advised him to break the lock and file a FIR against the bank officials. The borrower did not listen to our advice. On the other hand he approached to the High Court. Now the whole matter has been muddled and finally, the High Court asked him to go to the DRT. Now, the illegal possession by the bank will continue for an indefinite period. Had the borrower listened to our advice, the bank would have been in the position in which the borrower is now.

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DRT Solutions Weekly Mail – 372nd Issue dated 29th June ’15

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(1) Despite High Court Order, the Bank does not give back the Physical Possession  


In last weekly mail, we mentioned a case where the physical possession was wrongly taken by the bank. The borrower approached the High Court which ordered the bank to give back the physical possession. Despite High Court order, the bank did not hand over the physical possession. The borrower again approached the High Court which again ordered that the physical possession must be given back to the borrower and borrower should be allowed to sale the assets. Further development, if any, will be reported in the next weekly mail.


(2) DRTs to Get A Facelift With E-gov Project  


The Economic Times has published the following news item which is self explanatory:-

Government to introduce e-governance in debt recovery tribunals for state-run banks


By Dheeraj Tiwari, ET Bureau | 25 Jun, 2015, 04.54AM IST

NEW DELHI: The government is finalising the contours of an ambitious project to introduce egovernance in debt recovery tribunals, which could help staterun banks recover a sizeable part of the Rs 3.7-lakh crore worth of bad loans.

The 'e-DRT project' will allow banks and financial institutions to efficiently manage case records, track cases online and access accurate reports. The proposed plan also involves segregating wilful defaulters and fast-tracking cases with the aim to expedite recovery of public money."We have identified some DRTs with high case volumes," a finance ministry official said.

"The new system will help financial institutions generate reports and help recovery officers enforce proceedings and orders." The official said the system will prevent borrowers from stalling the recovery process by approaching the appellate tribunal as it will define a time frame within which the tribunal will have to decide the appeal.

A DRT is required to adjudicate on a case within 180 days, but borrowers often approach appellate tribunals and secure injunctions. According to finance ministry data, there were around 59,000 cases pending before various DRTs at the end of 2014, involving assets worth Rs 3.7 lakh crore. The government, which is looking to infuse additional capital in state-run banks, has been pushing the DRTs to speed up the recovery process.

"The e-DRT project will be implemented across all tribunals this year," another finance ministry official, said. The government, which is in the process of establishing six new DRTs, will push for early resolution of cases where borrowers have been declared willful defaulters. As on March 2015, there were 7,035 cases of wilful default worth Rs 58,000 crore.


According to finance ministry data, DRTs on an average dispose of 11,000 cases annually worth Rs 21,000 crore. Experts opine that the government should further tighten the process and the borrowers should be asked to pay 50% deposit even in cases where stay orders have been issued.



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DRT Solutions Weekly Mail – 371st Issue dated 19th June ’15

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(1) Collegium will be Back if NJAC is Quashed says SC  


The following news item is self explanatory:-

Collegium will be back if NJAC is quashed, Supreme Court says

| Jun 13, 2015, 02.14AM IST



NEW DELHI: The battle lines between the judiciary and government over how to recruit Supreme Court and high court continue to get sharper with the apex court on Friday dismissing the Centre's argument that the collegium system was gone for good and wouldn't be revived even if the National Judicial Appointment Commission (NJAC) Act is struck down. 

A five-judge Constitution bench headed by Justice JS Khehar said the collegium system would be revived automatically if the 99th Constitutional Amendment — which ended judicial monopoly over appointments to higher judiciary — and the NJAC Act fail to pass the test of law. 

The bench, which also comprises justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel, hit back at attorney general Mukul Rohatgi for alleging that the collegium appointed inefficient judges. It pointed out that the allegedly inefficient judges got important assignments post-retirement, courtesy the government. 


Seeking to substantiate its pitch that the collegium system would be back, the bench recalled the cases of constitutional provisions which were changed through the 39th and 42nd constitutional amendments. The old provisions came into force soon as the twin amendments were struck down.


“Striking down an amendment would mean that it never existed and old system is revived,” the bench said. This was an emphatic riposte to the statement the AG made on May 12 when he said that the collegium system in which the judiciary conferred upon itself the prerogative to appoint judges of SC and HCs cannot be revived even if NJAC is declared unconstitutional. 

"Even if NJAC is quashed what is dead cannot be revived. You cannot go back to the old system. There is no question of automatic revival of the old system and Parliament will sit again to re-legislate," Rohatgi had said. He had said: "The original article 124 has now disappeared from the Constitution. It is dead, buried and gone forever. It cannot be resurrected. It won't come to life even after this bench quashed the amendment and holds that NJAC is unconstitutional." 

The examples of 39th and 42nd amendments are significant as the twin changes were made by Indira Gandhi government during emergency to restrict the scope of judicial review. 

Defenders of the collegium system have argued that the mechanism where judges alone get to decide who can be on the benches of SC and HCs is vital for protecting judicial independence, and that the abolition of Collegium will let the executive and legislative encroach on judiciary's turf. 


The 39th Amendment had placed the election of the President, the Vice-President, the Prime Minister and the Speaker of the Lok Sabha beyond the scrutiny of the Indian courts. It was quashed by the court and the election process of the constitutional posts was brought under judicial review as was the position before the amendment. The 42nd amendment had given unfettered powers to Parliament to amend the Constitution. 

As for attorney general's charge about collegium being responsible for the appointment of inefficient judges, the bench said the government cannot escape the blame, if any, either. It emphasized that one so-called inefficient SC judge was chosen by the Centre for the National Human Rights Commission after his retirement. 

Rohatgi, while mentioning the case of the judge on Wednesday, said the judge had disposed of less than 100 cases in his career before collegium elevated him to the top court. 

"You talked about giving due representations to different sections. One case can't make the rule, but see after his retirement what you (government) did. You appointed him in the National Human Rights Commission," the bench said. 


(2) High Court orders Restoration of Possession to the Borrower  


Recently one of the borrowers from Indore informed us that the Bank through Tehsildar has taken illegal physical possession of the factory. We advised him to break the lock, take back the possession and file a FIR. The borrower went to the High Court which ordered that the physical possession be restored to the borrower.


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

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DRT Legal Solutions


Attorneys at Law of Torts, Injury and IPR Claims

ContentsProducts & ServicesFrequently Asked QuestionsUseful Article-BorrowersUseful Article-GuarantorsRBI GuidelinesNotes-Law of TortsNotes-DamagesMiniArticles-Letters to EditorUseful Interactions with Clients & VisitorsSecuritisation Act-CommentsAbout Us-DRT SolutionsUseful Tips for DRT Advocates|| 138 NI Act Cheque Dishonour Cognizance Acquittal | NCLT, National Company Law Tribunal, BIFR, SICA  |  Video Interview - BS Malik, Sr. Supreme Court AdvocateLegal Forum of IndiaSuccess & Results of Our GuidanceDRT Orders in favour of Borrowers & GuarantorsNPA, Debt due, Rehabilitation of Sick SME IndustriesOur Replies to Queries  on Current DRT Matters, Court Decisions etc.Measure of damages & Calculations under Torts & ContractsVideo Interview - GC Garg, Ex-Senior Bank OfficialSolar Healing, Yoga, Projector, Rebirth etc.Swami Ramdev, Yoga Guru, Cure for All Diseases, Medical Science RevolutionCourt Technologies IT Presentation Video ArgumentsArchiveDRT Solutions Weekly Mail for Borrowers & Guarantors   All India DRT Conference 2011 at IndoreArticle by Ram Kishan on Management & Technology in Indian JudiciarySARFAESI Securitisation Securitization Actar SA NPADRT Judgments Favourable / Useful to Borrowers


Contact Information :- Phones (India):- Mobile- +91-969-1103689, Off. & Res. +91-731-4049358,

Office & Residence - 205, Morya Palace, Opp Bansi Trade Centre,

5/1, Diamond Colony, New Palasia,



E-mail - ramkishandrt@gmail.com and ramkishan@drtsolutions.com

Popularity of our web site :- The key word for search of our website is 'drt'  or any phrase commencing with 'drt'  We are on the top in Google Search for 'drt' among 28,60,000 results globally. In most of the search engines like yahoo, msn, google, excite, altavista, mamma, alexa etc., To verify, you may visit www.yahoo.com, www.msn.com, www.rediff.com, www.indiatimes.com, www.altavista.com, www.google.com, www.excite.com, www.hotbot.com, www.123india.com, www.aol.com, etc. Our reference appears in www.economictimes.com, www.amazon.comwww.financialexpress.com, www.lawcrawler.com, www.findlaw.com, www.law.com, www.supremecourtofindia.com, www.supremecourtonline.com

(2) We have created a separate web site www.usindolegal.com which deals exclusively with our US joint venture enterprise for activities like BPO, legal BPO, DRT etc. This site has started appearing in the search results of Google, Mamma, Alexa and Yahoo.

Application of Law of Torts in claiming Damages from Municipal Corporations for demolition of structures, closure of shops etc:- In many parts of the country, the Municipal Corporations are demolishing structures like shops and houses which existed for number of years. The shops existing for number of years are proposed to be shut down. The affected persons should claim Damages under the Law of Torts, which would be substantial. It is learnt that in Delhi itself about 5 lac shops are to be closed down and about 25 lac persons would be out of jobs. All these persons should file damage suits in the civil court. Since the damages would be substantial, the suits may be filed as Indigent Persons. Since the damages would attract interest, the usual delay by the civil courts will not affect the final outcome. The affected shop owners may discuss the details with us on phone.

Our Articles for Borrowers and Guarantors:- Our articles on DRT matters have been published in the Financial Express. The All India Manufacturers Organisation in its famous web site www.aimoindia.org has reproduced copies of our four articles. These original articles can be searched in the archive of the Financial Express in its web site www.financialexpress.com Two of these articles have been reproduced in other pages of this web site. 

Useful link www.WorldVideoBusiness.com :- WorldVideoBusiness-WVB® is a business to business e-marketplace source of international trade leads, and tender opportunities from companies and government organizations around the globe.

About Us in Brief :-  (1) We specialize in DRT (Debt Recovery Tribunal) and NCLT (National Company Law Tribunal) matters. As a whole you may approach us for all DRT Problems and Solutions as well as matters connected with ARCIL i.e. Asset Reconstruction Company (India) Limited,  We have a Joint Venture with an America based law firm for various activities like BPO, legal BPO and DRT. The details of the said American firm and the joint venture may be seen at the page - Our US Joint Venture with Anand Ahuja Associates or in www.usindolegal.com (2) For your all problems including those in DRT, please phone us or send e-mail. Please give your contact details along with your problems in brief. As a whole you may approach us for all DRT Problems and Solutions.  (2) With our Legal Opinion, you need not worry about the Securitisation Act or other DRT matters or NCLT. Please visit the page Products & Services and Frequently Asked Questions (3) On account of our expertise in the Law of Torts and Banking and experience past 15 years, we can help you to submit suitable defence with winning strategy in DRT cases, Securitisation Act, Guarantors' defence etc.  (4) We need only copies of all available documents  to render our expert 'Legal Opinion' which will be quite useful and valuable to you particularly in DRT i.e. Debt recovery Tribunal. (5) We have also handled assignments for preparation of damage claims against Electricity Boards, Insurance Companies, Municipal Corporations etc. all on the basis of the Law of Torts.  (6) The DRT counterclaims is to be prepared well in advance so that it could be raised at proper time in DRT or other forum to safeguard the securities and assets. (7) Several DRT counterclaims drafted by us are being handled by different advocates at DRT Mumbai, DRT Delhi, DRT Jabalpur etc. Thus DRT advocates are available in these cities. Cases in other Debt Recovery Tribunals are under process. (8) This site is updated monthly mostly on every first Monday of the month or for urgent release on any day with latest material. (9) For further details about us, please visit the page About Us-DRT Solutions As a whole you may approach us for all DRT Problems and Solutions. We hail from the place to which Maharishi Mahesh Yogi and Acharya Rajnish belong and hence this site is dedicated to them.

Our this web site is dedicated to Yoga Rishi Baba Ramdev Ji Maharaj:- Our this web site is respectfully dedicated to Yoga Rishi Baba Ramdev Ji Maharaj whose method of Pranayam has cured even incurable diseases and thus has revolutionized modern medical science. For further details please visit our special page by clicking here Baba Ramdev Ji Maharaj, Yoga Guru, Cure for All Diseases, Medical Science Revolution

Site also dedicated to:-   (1) Swami Ramdevji, Acharya Balkishan and their Guru Pradumn Maharaj.

                                             (2) H.H. Maharishi Mahesh Yogi and Acharya Rajnish, the greatest gurus of all time www.maharishi.com, www.osho.com

                                           (3) Shri Hira Ratan Manek (HRM) for his pioneering work on Solar healing vide his web site www.solarhealing.com and forum at www.lifemysteries.com                                    

We regularly practice TM and SCI of Maharishi Mahesh Yogi. We also regularly practice Hath Yoga including Pranayam based on Baba Ramdev Ji  Maharaj. We daily watch his global TV program on Astha Channel from 05:30 AM to 8AM and 8PM to 9PM Indian Standards Time. On Sanskar channel, we daily view the discourse of Pradumn Maharaj from 4 AM to 5:30 AM. Many chronic diseases such as Cancer, Parkinsons' disease, Polio, Asthma, Hypertension, diabetes etc. have been cured by the said method of Pranayam which can be learnt even by watching his program on TV. Since 30th March '06, we have started practicing Sun Gazing as prescribed by HRM.

                                    (3) Shri Satyanarayan Morya alias 'Babaji' for his praiseworthy service to our nation. Please visit his site www.artistbaba.com 

Disclaimer:- We have no branch or setup other than at Indore. It is observed that some persons are using name of our firm as well as name of our web site. We have not given  any such authority to anyone to do so. Under such facts and circumstances, if anybody suffers any loss, we shall not be responsible. If such instance comes to notice of someone, we may kindly be informed.

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