DRT  Legal  Solutions

(Debts Recovery Tribunal Legal Solutions) is an India based

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

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

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

 

 

 

DRT Solutions Weekly Mail – 60th Issue dated 3rd July ’09

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

(1) Counter-claim can be filed even if WS has not been filed by the defendants in DRT:-

In the matter of one of our clients in Mumbai, a special situation has arisen that the matter relating to OA Dismissal is under consideration with DRT, DRAT and High Court. Accordingly the submission of the WS is linked with decision of these courts about the OA Dismissal

Under the above facts and circumstances, the defendant can file his counter-claim in DRT or damage suit in civil court against the bank. Such right accrues to the borrower the moment bank files the OA. If subsequently the OA is dismissed, the counter-claim will continue and has to be decided by the DRT.

(2) Pleadings in WS and Counter-claim in DRTs:- 

(a)     As per the Preamble of the DRT Act, the DRTs are special courts established for expeditious adjudication of recovery of debt due to the banks and financial institutions and for matters connected therewith or incidental to it.

(b)   As per the Section 22 of the said Act, the said Tribunals shall not be bound by the procedure laid down by the CPC 1908 but shall be guided by the principles of natural justice. These Tribunals shall have powers to regulate their own procedure.

(c)    In view of above, the pleadings in WS and Counter-claim in DRTs are not bound by the provisions under the CPC and the practices so far being followed.  

(d)   There is worldwide movement for simplification of language used in the legal documents so that it is easily understood by the litigants vide the book  ‘Plain Language for Lawyers’ 2nd Edition written by Michele M Asprey, Solicitor of the Supreme Court of New South Wales (Plain Language Writing Consultant).

(e)    Consequent on Nationalization of Banks in 1969 in India, the security of industrial loans moved from Assets to Productivity i.e. surplus generation, such loans became based on much more complex factors compared with simple personal loans.

(f)     Taking into account all the above facts and circumstances, we have evolved suitable pleadings for the WS and the Counter-claims in DRTs.

(g)   In respect of ‘Personal Guarantee of Directors of the Limited Companies’ we have done special research in 2008 and the concept has been evolved for the first time in India. Hence such pleadings have  been made comprehensive enough even having court judgments so that the advocates can understand the concept thoroughly as well as the pleadings are self contained.

(h)   Our pleadings have been highly appreciated by Senior Advocates and Judges.

(i)     With passage of time and after comprehensive trials based on such pleadings, there will be leading judgments which will be the precedents and accordingly the pattern of pleadings will undergo a change. This is how the complex facts relating to banking, industry and finance will be judicially determined to be understood by one and all in the legal community of advocates and judges particularly in the expert courts like DRTs. 

(3) Breakthrough in DRT Madurai:- 

One of our clients in Madurai and his Advocate has achieved a breakthrough in DRT. The said client wrote us a letter on 2nd July ’09 which is reproduced below and is self explanatory:- 

“Dear Mr. Ramkishan ji,

Dharm’ and ‘Truth’ lately emerges to stand by the side of the victimized Man. It is happened in my case on 30.06.2009.

The long awaited consideration of ‘Road to Justice’ on Merits in the hearing on 30.06.2009 in my case is continued with the Proper Judicial Determination by the Hon’ble P.O/Madurai who rendered his order meticulously by Application of Laws apparent on the face of the Records on 22.04.2009. We have made out this break through with proper pleas after excruciatingly 11 years with the valuable and timely guidance and assistance by Mr.Ramkishan and Mr.Dubey

You have tirelessly elucidated and illuminated the Defendants who are victimized, should draw the attention of the Trial Judge who is always impartial with proper pleas and with the application of different provision of laws for ‘Discovery of Facts’ which are suppressed by the banks conveniently.

It is further to be noted that the provision given in ‘Bankers Books Evidence Act’ that the certified copies of the Original Documents can be produced in the Court as ‘Prima-Fascia’ Documents, is comfortably exploited and misused by the erred officers at the cost of the ignorance of the Defendants who are unaware of the Banking Laws.

The bank has no grounds but to impress the Trial Judge by narrating the story of public funds locked up. It is well known that the entrepreneurs who are the back bone of the growth of Industries. Few unscrupulous elements did mistakes and it is blown as a big issue and sits in the minds of the public as well in the minds of the Trial Judge. It does not mean 99.99 of the Industrialists in this way. The obstinate Banks and Financial Institutions inculcate the Trial Judge with verisimilitude averments and made the Trial Judge that the Defendants are willfully flouting the Public Money by suppressing all the wrong doings by the banks.

The Trial Judge is so far has this mindset which is also influenced by media that the defendants are cheating the Public Money and thus it becomes the stone wall. It is difficult to break such opinion while the genuine case of mine, placed before the Hon’ble P.O. The wrong doings of the Bank is properly placed in First Reply Statement and then Proof Affidavit, Counter Proof Affidavit followed by other written statements in Interlocutory applications in which the bank is trapped and unable to substantiate their claim with proper Prima-facie evidence and file with elusive and evading reply without proper grounds and irrelevant materials to fill up the number of papers.

These statements have been articulately prepared and timely placed and argued by my Dynamic spirited young Lawyer Mr.Arun Murugan with the assistance of Mr. Ramkishan and Mr.Dubey. Mr.Arun Murugan having acquired deep knowledge of Acts, Banking Laws, CPC, IPC, proceedings, related citations and the Case History of the Defendants argued with clarity specifically with issue of conflict with supportive evidence in my case in past 11 years and at last the Hon’ble P.O/Madurai convinced that my contention in my case is a genuine.

Mr.Arun Murugan has placed his contention (Legal and factual) solely on the point of application why the Applicant Bank refuses to produce original documents under its Power and Possession with clean hands while the verisimilitude pseudo documents produced in main application are challenged. The Hon’ble P.O found the non-compliance of procedure on the part of the Applicant Bank and allowed plea of the Defendant to mark the documents of the Defendants. At this juncture I am happy that at last the Trial Court identified the tricky play with fraud of the Applicant Bank.

As per the advice of Mr.Dubey I started collected all the certified copies of the proceedings and it helped me and insinuated us timely to file proper application as per the advice of Mr. Ramkishan in order to complete all the process in the Trial Court such as Applications for Review, Reopen, Cross examination, Marking documents etc., Thus the completion of all the Procedures by availing all the opportunities, the Higher Legal forums has the sympathy on the Defendants and render Judicial Determination on merits and render justice without consuming the time.

By having the certified copies of the proceedings from the start date, we came to know that the Applicant Bank failed to comply with the orders of the Hon’ble P.O past several years before and when this is raised the Hon’ble Tribunal gave the final opportunity to the Applicant Bank to comply with the order. 

The following is the message from me.

Persistently Mr. Ramkishan regularly conveys his guidance of ‘Gold Mine’ through his ‘Weekly Mail’ and instant reply to anyone, even in midnight. I followed and came to this breakthrough. The Respectable Mr.Dubey is the instrument to inspire me and encourage, challenging the mighty Bank who is ready to spend many crores of rupees for mere recovery of few lacks for rupees to preserve their false Image and Reputation.

The aggrieved Defendants need not have the fear of contesting the bank. This has been clearly emphasized by Mr. Ramkishan in his Weekly Mails and please peruses the last addition on 26.09.09:

·         DRTs are an expert court on matters connected with banking, industry and finance.

·         Advocates and Judges in DRTs will have expert knowledge in the arena of banking, industry and finance.

·         In DRTs every matter is mostly viewed from the legal angle of such persons not having intimate knowledge about the facts.

·         DRTs in our country are not independent bodies. They are working under Ministry of Finance, Banking Division and get regular briefings and have meetings with the Banking Division. It is glaring violation of Principles of Natural Justice.

·         The Defendants are required to understand the impact and consequences of above and fight on the legal as well as factual points.. As an example, the matter of OA Dismissal agitated by our clients throughout the country has brought out few DRAT and High Court judgments in favour of borrowers.

 

The Defendants are necessarily to engage a very competent versatile professional counsel with expert knowledge in Banking, Industry, finance, RDDBFI Act, Securitization Act, CPC and more Practice in DRT & DRAT in this specified field and insinuate and explicate him frequently with clear of all the hands on materials for his acquaintance of their cases thoroughly and follow all the proceedings since the lawyer has not only your case but with other cases.

It is the duty and responsibility of the counsel who represents and place the material with his articulate professional talent of consummate knowledge in this specialized field with all Laws and Acts. In this case I have to appreciate Mr.Arun Murugan for his dedication and involvement in the case as if it is own personal case. He is patient and listens and consoles the Defendants. I admire his attitude and quality and I observed even the Senior Counsels appear their presence during the argument in DRT and extend their due Respect.

Unless I have the valuable guidance and advice of Respected Mr. Ramkishan, Mr.Dubey and Mr.Arun Murugan I would be a aggrieved Defendant lost in the ocean and I am indebted for these Professionals of High Caliber.

Dear Sir, it is my request to place this letter in your weekly mail if this matches to your requirement for the awareness of the aggrieved Defendants.

Regards

Sundararajan”

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DRT Solutions Weekly Mail – 59th Issue dated 26th June ’09

(1) OA Dismissal and filing of WS in DRTs:-

(1)     The Tribunals have been evolved to be an expert court on a certain matter e.g. DRTs are an expert court on matters connected with banking, industry and finance.

(2)     Hence it is expected that the Advocates and Judges in DRTs will have expert knowledge in the arena of banking, industry and finance.

(3)     In our country there is neither separate Bar Association for Trial Lawyers (as in US) nor the Bar Association organizes suitable training programs for the specialized Tribunals (as in US and UK).

(4)     In our country, in DRTs every matter is mostly viewed from the legal angle of such persons not having intimate knowledge about the facts.

(5)     Further the DRTs in our country are not independent bodies. They are working under Ministry of Finance, Banking Division and get regular briefings and have meetings with the Banking Division. It is glaring violation of Principles of Natural Justice.

(6)     In our country though we have gone for specialized Tribunals but we have not devised statutory Public Bodies for social control and monitoring on these Tribunals as in UK. Hence the ultimate goal of DRTs instead of justice is quick Disposal in the interest of Banks. The conditional legislation putting time for disposal as Six Months is itself is illegal being Impossible for a full fledged trial of complex facts relating to Banking, Industry and Finance. Normal bank suits in civil courts take nearly 15 years for which prescribing 6 months is nothing but impossible. It is interesting to note that some of our clients are contesting their cases since 1998 i.e. past 11 years. 

(7)     On account of above facts and circumstances, we have been empowering our clients to understand the impact and consequences of above and fight on the legal as well as factual points with tooth and nail so that no stone is left unturned. Such fights will result in leading judgments which will gradually bring in the real objectives of independent and impartial DRTs. As an example, the matter of OA Dismissal agitated by our clients throughout the country has brought out few DRAT and High Court judgments in favour of borrowers.

(8)     OA Dismissal to akin to Rejection of Plaints. When the OA itself gets dismissed and the case is quickly disposed off by the DRT, there is no need of submission of WS. There is no prejudice to the banks as they may invoke other recovery actions e.g. Securitisation Act.

(9)     Time is not far when independent and impartial DRTs headed by a Expert Member and a Judicial Member will come down heavily on the Banks due to illegal accounts (which is their primary job) not being maintained properly despite several audits as well as open violations of RBI Guidelines. Perhaps a certificate from Legal Audit may be prescribed along with the OA. Under these circumstances, OA Dismissals alone will force the banks and their audits to correct the present sorry state of affairs.

(2) Counter-claim by the Borrowers – Behaviour of Banks and DRTs:- 

As is widely known to all concerned that the Counter-claim or Damage Suit against the Bank or the FIs is the only and ultimate defence for the Borrowers and Guarantors in DRTs. Since we emphasized this

concept in 2001 through our article published in Financial Express viz. ‘Who’s afraid of DRTs’, the message has gone far and wide. Numerous counter-claim and damage suits have been filed. Now the DRT

advocates have started demanding and emphasizing the said counter-claim and damage suits.

The reaction and behaviour of the Banks have been interesting and is broadly as under:-

(a)     Initially the bank officials and bank advocates laughed at the counter-claim or suits involving hundreds and thousands of crores.

(b)    As the cases advanced the banks were forced to submit their written statements.

(c)     As usual, the bank officials having typical characteristics of beauracrats, avoided their involvements and finally it was the bank advocate who had no option but to prepare the said WS on behalf of the bank.

(d)    The said bank advocate had no option but to prepare usual WS based on general and evasive denials. This is how the bank has started losing the case.

(e)     When all the facts were denied, the case is destined to take a very long time of several years of trial.

(f)      The borrower has to take only one precaution to have a very competent trial lawyer in DRT. The inspection of documents will take few years. The evidence and cross-examination will bring about all the wrong doings of the bank. The person who has to cross-examine the bank officials should have intimate knowledge of banking, industry and finance. We have trained highly skilled retired bank officers in this arena. Cases prepared by us since 2001, this stage has not come yet.

The reaction and behaviour of the DRTs have also been interesting and is broadly as under:-

(a)     On one hand, the DRTs provide sufficient time to bank to file their WS against the said counter-claim of the borrower (we have seen even few years) but they don’t permit so much of time to borrowers. These facts must be noted and highlighted during crucial arguments.

(b)    The PO DRTs in order to have quick disposal of the case, force the borrowers to submit the proof affidavit and fix up final arguments. This is a trap for ignorant borrowers as just after the final arguments, in most of the cases, matter is decided in favour of the banks despite strong defence of the borrowers.

(c)     Under such facts and circumstances, we have been advising our clients to be very strict about the discovery of the facts, framing of the issues, cross-examination of the bank officials etc. so that all the wrong doings of the bank and its officials are proved beyond doubt on paper. We have observed that all such things are greatly resisted by the banks and the PO DRTs. The borrowers should not bother about such resistance. Let everything be put down in writing and each and every decisions at all stages be reviewed and appealed. The delay, if any, does not affect the borrower as on account of interest, the counter-claim continues to grow and hence the situation of ‘no debt due’ continues.

(3) Arguments at DRT Bangalore:- 

Mr. B.K. Dubey, our Senior Advocate and Head of our Advocacy Wing has been arguing a case in DRT-Bangalore past several months. We have been reporting important features of his arguments in various weekly mails. PO DRT Bangalore is regarded to be a strict PO with fast disposal. We have observed that outcome of arguments before him much depends on quick and proper replies to his queries during the arguments. One needs to have mastery of facts and mastery of law to face him. This was once again illustrated during the last arguments held on 22.06.09 and may be seen from the extract of the following report from Mr. Dubey:-

Proceedings at DRT Bangalore on 22.06.2009 

The matter was posted for hearing on the application filed by the defendant company on 18.05.2009, for seeking directions of the Tribunal, against the bank for providing the documents in terms of the memo of documents served on the bank vide dt. 2nd May’09, in compliance with the directions (oral) given by the Tribunal, after being satisfied about the bonafide need of the demand for documents sought form the bank.Since, the bank did not submit/provide the documents as per memo of demand, the application was filed by the defendants under compulsion alongwith copy of the memo of documents and proof of service thereof before the Tribunal.The bank instead of providing the documents, filed counter against the application of the defendant company, before the Tribunal, and the matter was posted for arguments on 22.06.09.

Arguments heard, and now the matter is posted for orders on this interim application, to be delivered on 7th of July 2009. 

While hearing the arguments, the counsel for the bank was time and again narrating the story of OTS proposal given by the defendant company and duly accepted by the bank and was trying to impress the Judge that, the defendant company bought time again and again for paying the dues of the bank until the last moment, but, instead of paying the dues under the agreed OTS, filed the SA, which is nothing but, abuse of the process of law. It was further argued by the said counsel that, now the defendant company is buying time by filing application for seeking documents from the bank which have no relevancy with the case under the SA. The Judge of the Tribunal got irritated and warned the advocate of the bank to limit his arguments solely on the point of application for providing the documents to the applicant company, and that, the advocate of the bank should not argue the case on merits of the appeal filed by the company.Said contentions of the bank were opposed vehemently, and the attention of the court was drawn to the provisions of section 17(3) of the Securitisation Act, according which the Tribunal has to determine the case on the basis of the evidence in the light of the facts and circumstances of the case. It was further argued that, the facts of the case are in the documents executed by the company and guarantors, and the documents in original are in the power and possession of the bank, and until the said documents are brought on record of the court, it is not possible for the company to lead the evidence. It was further argued that, it is the bank that has not followed the guidelines issued by the RBI for conduct of the loan accounts of the project financed under consortium of the banks, and only due to such violations on the part of the bank, the company has been deprived of its’ legitimate right to continue the power generation activity and it is the lead bank for whose default, the company has suffered, despite there being on record of the banks’ minutes of various meetings that, the company always ahead of, in bringing their contribution in excess of the stipulations for project finance. Thus, it was argued convincingly that, the documents sought from the bank are very much relevant, and that, in absence of the said documents, the company would be deprived of its’ valuable right of hearing, thereby causing injustice, which would be against the provisions of the Constitution, the Special statute, as well as the law laid down by the Apex court of the country.

After giving a patient hearing the matter has been kept for orders on the IA of the company, to be pronounced on 7th of July 2009. 

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DRT Solutions Weekly Mail – 58th Issue dated 19th June ’09

 

OA Dismissal in DRTs– concept and practice:- 

(1)     The DRT Act, DRT Rules, Bankers’ Books Evidence Act, SC ruling in the matter of Central Bank vs Ravindra and DRT Regulations have prescribed the format, contents and certification of Accounts Documents to be filed along with the OA by the banks and financial institutions.

(2)     The DRTs are meant to be a specialized technical courts for the matters connected with banking and  industrial finance.

(3)     The Tiwari Committee at whose instance the DRTs have been constituted in its reports published by the RBI in 1984 at page 77 recommended that “These tribunals should be manned by persons having specialized knowledge in the functioning of banks, financial institutions and industry." This has not been implemented by the Govt yet. When such recommendation is fully implemented, the various factual aspects in DRT litigations pointed by us will be understood properly.

(4)     At the moment the Banks and FIs having recovery cases amounting to more than Rs. 10 lacs are required to approach the DRTs. There are 28 DRTs and 5 DRATs in the country to handle the cases involving NPAs of nearly Rs. 1,50,000 crores.

(5)     The DRTs have been equipped with much wider powers than the Civil Courts with ultimate goal and objective to achieve complete justice.

(6)     At the moment there is a misconceptions that the DRTs are meant only for bank recoveries. In a democratic setup like ours, there is a rule of law and not rule by any individual. It is only when everyone strictly abides by law, then only ultimate justice will be achieved.

(7)     If the above concepts are applied, the banks have no power, authority and jurisdictions to violate the legal provisions mentioned in Sl. No. (1) above. The banks are not authorized to prepare any documents violating the above provisions.

(8)     The DRTs have no power, authority and jurisdiction to accept such illegal documents. If by mistake, the DRTs accept such documents, as soon as such illegality is detected, the OA is rendered illegal.

(9)     The dismissal of OA is akin to rejection of plaint prescribed in O-7 R-11 of CPC. Until and unless such matter is decided, the stage of submission of WS is not reached. In fact by such OA Dismissal, the case is decided expeditiously.

(10) It is only when the DRTs follow the above law and as soon as the OAs are dismissed, the banks will be forced to observe law not only in documentation but in other spheres also e.g. the bank officials don’t care about the RBI guidelines which are in existence since 1976.

(11) This is how the public servants in banks and the DRTs will transform themselves to abide by law which is the first requisite to attain the democracy. The public (borrowers) will have to fight initially but with passage of time we will also have the Councils (members being citizens) as in USA and UK, which have statutory powers to monitor and supervise the said public servants in banks and tribunals like DRTs.

(12) There are cases in DRTs Maharashtra where such OAs have been dismissed and the DRAT Mumbai and Bombay High Court have not interfered the said dismissal of DRTs. Our clients from DRT Nagpur, DRT Jabalpur, DRT Lucknow, DRT Mumbai have been specifically benefited by raising the matter of OA Dismissal past 6 years.

(13) The borrower is within his rights to defend his interest on all possible ways. The DRT litigations comprises of numerous complex facts relating to banking, industry, finance, contracts, torts, damages which must be pleaded in the counter-claim. Such exhaustive counter-claim must be tried within the framework and procedure of law available for complete trial. It is observed that the banks as usual deny all the material facts and hence the trial takes a long time for full judicial determination of facts based on law of evidence. One has to be patient and resourceful enough to achieve perfect trial on all dates. With exhaustive and complete trials only, the law relating to DRTs will develop and leading judgments so achieved will solve most of the problems faced by the entrepreneurs regarding adequate and timely bank finance.

DRT Solutions Weekly Mail – 57th Issue dated 12th June ’09

(1) Cases in DRTs pertain to Administrative Law :- 

The British established the modern Court System in India but they never allowed the study and application of Administrative Law. There was no separation of powers between legislative, judiciary and executive. The whole system, organization and structure was designed to rule India. The litigations were confined to private against private only. There was no provision or scope for private against the Govt. Our mindset or legacy is based on such system. Interestingly the UK does not have a written constitution, no statutes like Evidence Act or Law of Torts.

As soon as our country became free and after adoption, enactment and promulgation of the Constitution of India, the most important aspects were (1) Fundamental Rights of the Citizens and (2) Separation of Powers between legislative, Judicial and Executive wings of the Government.

Attention was paid to study and Reports by Law Commission of India as well as to the Administrative Law. Indian authors like Justice D.D. Basu and Prof MP Jain wrote books on Administrative Law. Courses on this subject were first introduced in LLM syllabus.

Administrative Law like the Law of Torts is a judge made law. In fact most of the cases being fought under Art 226 in the High Court belong to Administrative Law rather than the Constitutional Law because the practicing Indian Advocates as well as the High Court Judges have not paid requisite attention to this important aspect.  

The Bank Litigations in DRT and Court correctly speaking belong to Administrative Law.

If one applies the ‘Principles of Administrative Law’ to the Bank Litigations, the following picture will emerge:-

(1)     Activity and Function :- Industrial and Business Finance by Banks and FIs

(2)     Legislative :- RBI

(3)     Judicial :- DRTs and Courts

(4)      Executive :- Banks, FIs and Entrepreneurs/Promoters

The Tribunals have much wider scope than the Courts as the Courts have certain limitations on account of CPC which the Tribunals don’t have. The ultimate goal is Justice for both i.e Tribunals and Courts.

An exhaustive analysis of functions, powers and jurisdictions of the Tribunals and Courts have been given by the Supreme Court of India vide AIR 1965 SC 1595, ACC vs Sharma.

We request the Advocates, Judges and the Litigants involved with the Bank Litigations to study and apply the Administrative Law thoroughly in DRTs and Civil Courts. If it is done so, Lot of present problems particularly in Trials will be solved.

We have chalked out complete plan of action, guidance and advice for those clients who are personally interested but it is not possible to provide the same to their representatives or employees on account of obvious reasons. It is needless to mention that the stakes of the  entrepreneur/promoter are the highest and hence the seriousness which he will have, can not be expected from his representative/employees. The counter-claims and Damage Suits running in hundreds and thousands of crores call for matching seriousness, interest and preparations particularly when the complete environment is against the borrowers.

(2) Huge Court Fees collections in DRTs call for either reduction in Court Fee or increase in number of benches:- 

It is observed that huge court fee is being collected in DRTs and DRATs resulting into huge surplus remittance to the Government. Courts are not meant for earning profits. In fact no court fee should be charged as has been recommended by the Law Commission of India.

Our clients are requested to apply to their respective DRTs under RTI Act to provide the statement of accounts so that quantum of surplus may be actually ascertained.

On basis of above, writ petition or PIL may be filed either to reduce the court fee or to increase the benches.      

(3) If POs coming from Banking Sector are allowed than those from Industrial Sector should also be allowed :- 

It is learnt that bank officials are being posted as the POs of the DRTs. As soon as such thing happens, matter may be raised to post matching no of Indusrialists/Businessmen as the POs. In fact the Tiwari Committee on whose recommendations in 1984, the DRTs were constituted proposed that the POs of the DRTs should have knowledge and experience in banking, industries and finance. This recommendation has not yet been implemented. It was only in British days, the public servants had a higher status than the public but now in democratic setup the public should have higher status than the public servants but still we have not become free from the clutches of the servants.   

(4) Application of Principles of Natural Justice:- 

The initial application of doctrine of natural justice was to the courts that is to say, in respect of judicial functions and it is from that sphere that the doctrine has been extended to statutory authorities or tribunal exercising ‘quasi-judicial’ functions and later to any administrative authority who has the function of determining civil rights or obligations.

The first principle of the Natural Justice is ‘Hear the Other Side’ Hearing means effective hearing of the evidence and arguments. The second principle is ‘No one can be judge in his own cause.’

It is surprising that such an old doctrine (800 to 1000 years) originally meant for courts is not being complied with some of the DRT judges. Thus our such courts are backward by 800 to 1000 years.

Our Weekly Mails and DVDs are DRT Legal Guide and gold mine of practical information for the borrowers and guarantors - The mail recipient particularly Borrowers and Guarantors will be immensely benefited by our weekly mails and DVDs, all previous issues of weekly mails from 1st one till the last one may be viewed by clicking the links given at the top. Separate web pages have been created to contain these mails in batches of 10 so that pages open up fast. These mails are gold mine of information on current topics giving lot of practical suggestions and comments. Any new recipient to these mails must go through all the weekly mails right from the issue no 1 to the latest. If possible please spread the reference of our web site and the weekly mail among the persons, borrowers and guarantors who are the bank victims. If anyone desires to get these mails regularly, he may write to us for inclusion of his e-mail ID in the regular mailing list. The weekly mail is issued on every Friday morning 6 AM. The particular issue of the weekly mail is first published on the web site and then mails are sent. These weekly mails have become quite popular among the borrowers and guarantors in the country as we are getting huge no of mails appreciating the same. We welcome suggestions as well as the topics on which more information is required. As regards, the DVDs, the complete set is  available from us at a token price of Rs. 800. The interested persons may send a separate mail giving their postal address. As soon as they deposit the amount in our account, the set of DVDs will be dispatched to them within a week.

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DRT Solutions Weekly Mail – 56th Issue dated 5th June ’09

 

(1) Article in 'Business Standard' on Conservatism of the Judiciary to use new technology:- 

At page 10 of 3rd June issue of ‘Business Standard’, in the column ‘Catching up with science’, Mr. M.J. Antony has stated that the Judiciary is wary of using new tech to improve procedures. The judiciary is perceived as a conservative institution. It does not easily accept innovation in procedures and interpretation of law. However, it has begun to admit, reluctantly, the recent advances in science and technology.  The high courts are lagging behind in Computerization, and there is no coordination between the Supreme Court and other courts. Many tribunals have neglected their sites after the inauguration.

Some computer savvy judges have utilized web facilities in writing judgments. The Madras High Court used a blog by a law student of IIT Kharagpur in its recent judgment in the TVS Motor-Bajaj Auto row over the patent for ‘Flame’ bike. The Supreme Court recently referred to Wikipedia in two of its judgments. While one bench felt that it could not be relied upon, another bench felt that it could be used to check definitions of telecommunication devices.

In this article it is further mentioned that some headway has been made in the application of ‘Video Conferencing’, online cause lists,  web sites of the courts etc,

Our Comments:-

(1)     Justice V.R. Krishna Iyer in his book ‘Law, Lawyers and Justice’ (1988) at page 133 has written that the Indian Courts are 200 years behind those in developed countries.

(2)     The Information Technology Act was enacted in 2000. Much later i.e. on 9th July 2007, laptop computers costing Rs. 40 crores were distributed to 15000 judges in the country with the provision of 3 months training. Nearly 2 years have passed, we don’t find such computers being used by the judges in the court rooms.

(3)     We indigenously developed complete system of ‘Video Arguments’ and demonstrated the same before the District Judge, Indore on 10th Oct 2007 but the judicial machinery is not at interested to use such system which will greatly improve the quality, reduce costs as well as reduce the pendency in the courts.

(4)     USA commenced computerization of court records as early as 1970 but even after 39 years, we have not yet commenced such an important technological application.

(5)     Our courts are heavily loaded, even to the extent of more than 90 times. There is clamor for increasing the number of judges. Immediate application of the Modern management techniques and technology will have much greater impact compared with only increasing the number of judges.  

(2) Success of Litigation depends on Proper Reaction at every moment of time:- 

Peter Murphy in the Preface to First Edition of his book ‘A Practical Approach to Evidence’, Second Edition 1985 stated that ‘Evidence presents problems without warning calling for immediate reaction. Failure to object at the right time, or the making of an unfounded objection may in some cases have serious consequences for the fate of the piece of evidence concerned, or the case as a whole. One’s opponent’s objections, whether well or ill founded must be dealt with. In his opinion, there was only one rule of evidence namely, a reaction of instinct on hearing any words spoken in court. That sort of instinct takes time to develop and thorough knowledge of rules but it is of incalculable importance.

Our comments:-

In the context of DRT Litigation particularly the borrowers have to be always alert and vigilant over any word in writing or oral from the bank or it’s advocate. Proper reaction by the Borrower and or his advocate will have a great impact on the success of the litigation. It is needless to mention that the reaction must come from a person having mastery of facts and mastery of law. The facts concerns banking, industry and finance, whereas the law concerns DRT Act, Securitisation Act, Law of Damages, Law of Torts, Evidence Act, CPC, Principles of Natural Justice, various relevant SC judgments etc.  

(3) Sources and Factors of Injustice in DRTs/Civil Courts:- 

The goal, purpose, objective and duty of the Judicial Machinery is to obtain, achieve and maintain justice at every moment of time. The sources and factors of Injustice in DRTs/Civil Courts are as under:-

(1)     The courts are heavily overloaded:-  

A rough estimate shows that Indian courts are ninty times more loaded compared with those in developed countries. This seriously affects the working and efficiencies of Judges, their staff and Advocates

(2)     Old Management Systems and poor TechnologyComputerization in courts in USA started in 1970 whereas in our courts it has just started. On 9th July 2007, 15,000 laptops costing Rs. 40 crores were provided to all judges in the country but they are not being used till date despite supervision by high courts and pressure for disposal.

(3)     DRTs were intended to be headed by expert persons having knowledge of banking, industry and finance. At present instead only legal persons like retired District Judges are heading the DRTsThe original recommendation in 1984 of Tiwari Committee at whose instance the DRTs were created was that the proposed tribunals should be headed by expert persons having knowledge of banking, industry and finance. That recommendation has not yet been implemented by the Govt. 

(4)     DRT is an original trial court working on principles of natural justice The DRT is the first and final trial court where the complex facts relating to banking, industry and finance are intended to be judicially determined. There is no handicap or limitation as the DRTs can even travel beyond CPC. Hence the full trial conducted by DRTs for complete justice will definitely take more time than the civil courts.

(5)     Lack of legal education among the litigants The Bar Councils in developed countries have massive programs for legal education of the public and litigants as only can become watch dogs and direct the judicial system to attain the only goal i.e. justice. The Advocates, Judges and Law Colleges just can not do so on account of their own personal goals and limitations.

(6)     Conclusion

On account of above facts and circumstances, we have undertaken

(a)     To frame pleadings of counter-claim or damages based on law of torts with full knowledge of banking, industry and finance.

(b)     To provide guidance and advice on every date

(c)     To provide trained advocates

(d)     To provide comprehensive knowledge through our web site www.drtsolutions.com and weekly mails

(e)     We conducted an All India DRT Conference in May 2008. DVDs are available which contain the complete proceedings of the said conference.

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DRT Solutions Weekly Mail – 55th Issue dated 29th May ’09

(1) An Important Judgment on DRT Counter-claim:- 

One of our clients from Mumbai has forwarded the following judgment seeking our analysis and advice. Our comments are as under:-

(a)        The citation is 2007(2) Bank CLR 549 (DRAT Kol), State Bank of India vs J.S. Oil Fats (P) Ltd

(b)       The bank's OA of 1999 for Rs. 68.58 lacs was rejected by DRT Guwahati on 22.08.02 as the said OA was premature and bank did not have any cause of action. In respect of Counter-claim which was filed in 2001 for Rs. 90.93 lacs, the said DRT on 22.08.02 decreed the counter-claim to the extent of Rs. 45 lacs.

(c)        The DRAT Kolkata on 14.11.03 upheld the said decision of DRT rejecting the said OA as well as decreeing the counter-claim.

(d)       This matter went upto Supreme Court which set aside the part of the decree which related to the counter-claim and remitted the case to DRAT to reconsider the matter. The relevant extract of the order of the SC was as under:-

“There may be substance in what is being stated by learned counsel of the respondents, but we feel that the matter required a more detailed consideration of the material on record. We, therefore, set aside that part of the decree which relates to the counter-claim and remit the matter to the DRAT to reconsider the matter after hearing the parties and to record the findings as to the extent of the counter-claim which may be allowed.”

(e)        DRAT reexamined the entire matter and reversed the original judgment of DRT.

(2) Analysis of above Important Judgment on DRT Counter-claim:- 

The judgment reveals lot of important aspects of pleadings and trial, our comments are as under:-

(a) The borrower in his counter-claim has claimed only direct loss sustained. Various other legally permissible loss and damages like profit lost, mental tension, image and reputation, aggravated damages, exemplary damages etc. have not been claimed.

(b) The above deficiency has not been revealed at the level of DRT, DRAT, High Court and Supreme Court. That is why we have been emphasizing that the person who is drafting the pleadings must have mastery of facts and mastery of law. The facts include those pertaining to banking, industry and finance. The law includes banking law, law of torts, law of damages, law of evidence, CPC, contracts, law relating to principles of natural justice etc. That is why we took up the job of preparing the pleadings since 2001 and all our clients have benefited due to our perfect pleadings. We have also found many borrowers suffering as proper pleadings have not been prepared.

(c) The Supreme Court remitted the case to DRAT. The said DRAT conducted the retrial. This should have been resisted by the borrower. The retrial should have been conducted by the DRT.

(d) No new matter or documents were permitted in the said retrial. This also should have been resisted. All the deficiencies should have been corrected in the said retrial in the interest of complete justice.

(e) The retrial conducted by the DRAT was also defective and objectionable. This also should have been objected to by the borrower.

(f) A thorough analysis of this case confirms our oft repeated insistence that one has to be perfect in the pleadings as well as adjudication on every date right from the day one.  The DRT is the court of first trial where all the disputed facts are to be judicially determined. Since everything of the counter-claim is resisted and denied by the bank, the whole process is automatically delayed. No hurry to cut short the adjudication should be tolerated otherwise it will result in incurable mistake.     

(3) Suspected Reaction of SC on Counter-claim:- 

One of our clients has expressed his doubt whether SC will permit decree of Counter-claim on the Banks. Our opinion is as under:-

(1) SC as any other court in the country has to abide by law, procedure of law and the Constitution of India.

(2) Since all odds are against the borrowers, we have been advising our clients that they have to be very careful right from the day one so that no court in the country including the SC is able to locate any legal flaw in the procedure of law as well as application of law at any stage of the adjudication.

(3) Facts of each and every case differ and hence no two cases can be compared in the factual aspects. It is only in regard to the law and procedure of law the SC can find deficiencies.

(4) The first most important stage is ‘Preparation of Pleadings of the Counter-claim’ It must  be prepared by a person having mastery of law and mastery of facts. Further the trial has to be conducted thoroughly by such DRT advocate who are quite knowledgeable, proficient and experienced in trials including those involving principles of natural justice.

(4) Law of Evidence fully applicable in DRT:- 

As per the DRT Act, while the DRTs are not bound by CPC but they are required to be guided by the principles of natural justice. As per the Supreme Court, the DRTs can travel beyond CPC. Thus the DRTs are supposed to be an expert court in the matter of banking recovery disputes with the objective of expeditious trials.

The DRTs as trial courts have to abide by the Law of Evidence. Past 10 years we have observed that the trials in DRTs require proper advocates who are experienced in trials. Since these advocates should have expert knowledge in factual aspects of banking, industry and finance, they are required to apply law of evidence particularly in respect of documentary evidence. They are also required to be expert in cross-examination of the bank officials.

Looking to the above requirements, we have created an expert Advocacy wing to conduct arguments before DRTs and DRATs as well as cross-examination of bank officials.  

(5) Standard of Proof for Counter-claim:- 

We have closely observed the working of DRTs for more than a decade. We find that the DRTs are not independent rather they are biased towards the banks. Further the standard of proof for the borrowers and guarantors is very high compared with that for the banks. Hence the trial of counter-claim becomes highly challenging and difficult. One has to be more than expert in application of law of evidence in proving each and every disputed fact. We are of the opinion that one has to be cautious right from the stage of pleadings when it must be thought of and planned as to how he is going to prove his averments. Since the required standard of proof is very high, lot of ground work has to done right from the beginning. All the provisions of Law of Evidence particularly those pertaining to the documentary evidence must be mastered and practically applied in respect of all the facts contained in the counter-claim. 

(6) Various  models of Advocacy for DRT Defence 

We have observed various models of advocacy in DRT Defence. Assuming that the pleadings of counter-claim has been prepared by us. Our comments are as under:-

(a) Client takes active interest. He is in constant touch with us for our guidance and advice. In turn he himself interacts with his advocate. All interim documents are prepared by the client and his advocate. This model depends on client and his advocate. If they are competent, the model may be successful as well as economical.

(b) Client takes active interest and employs our junior representative local advocate. Interim applications and other documents are prepared by us at our professional charges. Crucial arguments are handled by our advocate. This model is successful but comparatively costly.

(c) Complete work is handled by us including complete drafting and advocacy. This model is highly successful but is costly.

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DRT Solutions Weekly Mail – 54th Issue dated 22nd May ’09

(1) Power of Competent Advocacy in DRT:- 

One of our clients from Bangalore in past complaint that the PO DRT Bangalore was not listening to the arguments of the advocate and was awarding orders and judgments in favor of bank only. We advised our client to submit everything in writing as well as explain everything during arguments followed by written arguments. Despite all our guidance, the advocate of our said client could not achieve desired results

Another client having case in DRT Bangalore hired our full professional services including the advocacy. We achieved good results from the said PO vide highlights as under:-

(1)     In all the cases pertaining to Securitisation Appeal, the said PO had been insisting for deposits before granting any stay. When the same matter was argued by our Senior Advocate Mr. Dubey, the said PO granted stay without any deposit. In fact the PO raised many factual questions which were replied to his full satisfaction and also convincing arguments were submitted as to why the deposit should not be insisted.

(2)     On the next date, when it was submitted by Mr. Dubey that originals of the material documents need to be inspected, the said PO said that he will not permit usual procedure of submitting an application, reply by the opposite party, arguments and then order – all of which consume considerable time. Instead he ordered that a list of such documents be sent to the bank asking them to provide inspection. Accordingly an exhaustive list of documents was sent.

(3)     On the next date, finding that the bank could not grant the desired inspection, the said PO suggested to proceed with the provision that the adverse inference will be drawn about the said documents. Our senior advocate Mr. Dubey vehemently opposed and proved that the concept of adverse inference is not applicable. and hence the said PO had to agree to the usual procedure and  accepted the application. PO said that DRT itself will send notice to the bank. The date for arguments was also fixed up.

(4)     The above illustrates the power of competency of the Advocate particularly when the PO raises any question about the fact and law, that must be replied then and there with full details.

(5)     On account of above only, we have been advising our clients that crucial arguments should be handled by our Advocacy wing which is headed by Mr. Dubey.

(6)     Our observations are that most of the advocates in DRTs are not having required knowledge and experience in the factual aspects of banking, industry, finance, banking laws, procedural law applicable to trials, principles of natural justice, law of damages, law of torts, RBI Guidelines, SC judgments etc. Hence they are not so well versed in answering the spot questions put forth by the POs. The main purpose of arguments is to convince the POs and that can be done only by a person having mastery of facts and mastery of law. Usual method of seeking adjournment will not serve the purpose. There is no easy substitute of hard work required in thorough understanding and preparation of the case. We spend lot of time in analyzing all the facts and laws before giving any appearance. Half hearted preparation and hurry spoils the cases and such judgments will become difficult to be remedied in the higher courts. Its better to hire a competent advocate in the very beginning rather than going for a cheaper option which ultimately will prove to be costlier and  time consuming without any relief.  

(2) Counter-claim (more than the claim of the bank) awarded by Court 

We have been getting lot of queries by our clients as well as the visitors of our web site enquiring whether any counter-claim (more than the claim of the bank) has been awarded by court of law. The below is particulars and reference of such a case:-

(1)     Special Civil Suit no 231 of 1977

(2)     Court :- Civil Judge, Senior Division, Kolhapur

(3)     Parties :- State Bank of India vs MJ Fertilizers & Others, Kolhapur

(4)     Decided on :- 13.10.93

 

(5)     Order

(i)                  Defendants’ counter-claim decreed as Rs. 73.50 lacs.

(ii)                Banks’ claim decreed as Rs. 59.63 lacs

(iii)              Balance amount to be paid by Bank :- Rs. 13.87 lacs with interest @ 10% pa from January 1981 till the amount is received by the defendants

(iv)               Bank to bear own costs

(v)                 Bank to pay proportionate costs to the defendants.

 

(6)      Our Comments

(a)     We have reported in our previous weekly mails three cases of counter-claim awarded by the DRTs, one from Bangalore, another Mumbai and third one from Guahati. But in all these cases, the claim of the bank was more than the counter-claim.

(b)    In the above case, the counter-claim has been more than the claim of the bank.

(c)     We have observed that bare minimum of direct losses have been claimed in the counter-claim. All other categories of damages such as damages to image and reputation, mental tension and torture, aggravated damages, exemplary damages etc. have not been claimed. It appears neither the litigants nor the advocates/judges are aware about the various damages which are permissible in law of damages.

(d)    In all these cases, the damages are based on law of contract. The law of torts would have yielded much better scope for various types of damages.

(e)     In the above case, the trial has lasted for 16 years. This is a normal time for a complete trial in our country. For such complete trial, the DRTs will take more time as their procedure has not yet been finalized.

(f)      In view of above only, we have been emphasizing that the counter-claim is the only and ultimate remedy in DRTs. Many of our clients who got counter-claim drafted from us are now much in more stronger position compared with the banks.   

(3) Interesting case from DRT Ahemdabad 

One of our clients from Mumbai has referred his another case recently decreed in DRT Ahemdabad. The highlights are as under:-

(1)     ICICI Bank filed an OA in 2003 in DRT Ahemdabad.

(2)     Usual WS was submitted denying the various allegations of the bank. The pleadings also mentioned about the loss and damages caused by the bank. But no counter-claim was filed.

(3)     Usual proof affidavits were filed by both the parties.

(4)     In the meantime the debt was assigned to Kotak Mahindra Bank.

(5)     Recently an application was filed questioning the legality of the said debt assignment.

(6)     Based on above the PO DRT Ahemdabad on 28.4.09 decreed the claim in favour of the bank.

 

Our comments  :-

(a)     We have observed many illegalities in the trial as well as in the final order. We intend to advise the party to submit Review Petition. If the party agrees, our advocate will conduct the final arguments on Review.

(b)    We intend to file the damage suit against the bank to claim the loss and damages mentioned in the WS.

(c)     We advise all the borrowers that they should go in for comprehensive trial right from the beginning so that counter-claim is filed, all the material facts are judicially determined, documentary evidence are discovered, bank officials are cross-examined and then only final arguments should be held.

(4) Counter-claim or Damage Suit is the only and ultimate Defence in DRT 

      Many of our clients who have filed Counter-claim or Damage Suit against the Bank are in much stronger position compared with the Bank. Each and every case is different and ultimate results will defend on thoroughness and completeness of pleadings as well as how the case is fought on each date. As emphasized again and again, we have found since so far neither such pleadings have been made nor cases have been fought, any citation will not serve the purpose. Those of our clients who themselves are taking personal interest and availing services of experienced and knowledgeable trial lawyers have much better chance of winning. We are providing all guidance and advice to such clients.

 

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DRT Solutions Weekly Mail – 53rd Issue dated 15th May ’09

 

(1) Bank losing in Securitisation Actions:-

Recently we prepared ‘Representation and Objections’ for one of our clients from Mumbai. The bank officials instead of replying to the ‘Representation and Objections’, approached our client informing that the Chairman of the Bank desires meeting with the said client. In the meantime since the Bank did not reply within 7 days we have informed the Bank about the deliberate violation of law.

The authorized officer of the bank and those connected with the ‘Internal Mechanism’ have become questionable as to how an illegal notice was issued and as to why reply has not been sent with the prescribed period of 7 days. 

Under the above facts and circumstances, the said Securitisation Notice will definitely be held illegal.   

(2) Strategy for  Trials in DRTs:- 

Many of our clients whose Damage Suits / Counter-claims were prepared by us have started receiving ‘Written Statements’ from the Banks. We have advised such clients as under:- 

(1)     DRT is a trial court. It is the first and last trial. Since we had taken care of all the material facts in the pleadings, the said facts are to be judicially determined.

(2)     The approach of the Bank is to expedite the said trial by harping on delay in recovery of public funds. Further the Bank tries to reveal the least particularly the material documents like appraisal reports, basis of sanctions, proceedings of the internal mechanism, NPA calculations, proceedings relating to declaration of willful defaulter, violations of RBI Guidelines, documents relating to wrong doings committed due to violations of law of torts etc. The Bank avoids inspection of all such material documents. The Bank avoids impleading the higher officials like the Chairman of the Bank and other Senior Officials. The Bank avoids the cross-examination of such officials.

(3)     The pleadings of the Bank are very poor particularly in respect of the material facts relating to banking, industry and finance as such pleadings are prepared by the advocates only for the obvious reasons that the Bank Officials themselves avoid involvement in legal affairs.

(4)     The affidavits filed by the Banks are highly defective particularly in respect of material facts and documents.

(5)     Since the advocates are not having sufficient free time, we ask our clients to involve themselves in all above matters so that proper help is extended to their advocates. Wherever the clients have abided by our guidance and advice, they have become quite strong in their litigations against the bank.

(6)     We also ask our clients to go through latest court judgments and provide the same to their advocates.

(7)     All the above study requires proper understanding of facts which is only possible by the clients and not by the advocates.

(8)     We have found that those clients who abide by our guidance and advice are in much better placed compared with the bank.

(9)     One has to be perfect and prepared in advance on each and every date. Any lapse or deficiency will be fatal as the whole system is generally in favour of banks and against the borrowers and guarantors.

(10) The court proceedings must be examined from time to time so that the same are recorded accurately.

(11) In bank litigations, the facts are contained in the documents and the documents are in possession with the banks. Hence the O-11 of the CPC must be followed thoroughly.

(12) The scope of ‘Principles of Natural Justice’ is much wider than the CPC and hence the trial in DRT may be more comprehensive than the civil court.

(13) Trial can not be just made summary so as to violate the justice.

(14) If there is any attempt by anyone including the judges and or advocates to cut short the Justice, complete record must be made and filed in the court.

(15) There is a rule of law and not rule of persons.

(16) If the banks are concerned with public funds, they should be law abiding first otherwise their wrong doings will be thrown open by the application of law and they themselves will be responsible for the delay being caused in consequent recoveries.

(17) The damage suit or counter-claim is the only remedy in bank litigations. These should be drafted with full mastery of facts and mastery of law.

(18) Thorough trial of the said damage suit or counter-claim is a fundamental right.

(19) Ultimate goal of the trial should be judicial determination of material facts by inspection and cross-examination so that the wrong doings are admitted. In that eventuality discretion will not find place in the final order.

(20) The above approach requires highly experienced and knowledgeable advocate in the field of trial, law of torts, law of damages with well versed in banking, industry and finance.

(21) Looking to all the above aspects, we have devised many models suiting to our clients. We are pioneer in Pleadings of the damage suits and counter-claims in banking litigations. Guidance and advice are provided to the clients. Lastly full fledged advocacy services are also available.  

(3) Bank desires transfer of the Counter-claim to civil court:- 

In case of one of our clients from Ludhiana, the Bank has approached DRT to exclude the counter-claim out of the OA with the further prayer that the claimant be relegated to the civil court. Our specific comments are as under:- 

(a)     The counter-claim is Rs. 1965 crores approx filed in early 2006 against a FI, State Industrial Development Corporation and a Public Sector Bank individually, severally and jointly.

(b)    Initially no court fee was affixed but later on the prescribed maximum DRT court fee of Rs. 1.5 lac was paid.

 

(c)     The contention of the Bank is that it may not be possible to adjudicate the said counter-claim without segregated cause of action and claims against different institutions.

 

Our Comment :- The said contention is misconceived and wrong. The project and promoters suffered loss and damages due to wrong doings of the said institutions. Either of the institutions could have prevented the said loss and damages and hence they are individually, jointly and severally responsible, accountable and liable. Under such facts and circumstances, neither cause of action nor the claim can be segregated. It is just like recovery action being taken against the borrowers and guarantors wherein they are held liable individually, jointly and severally and cause of action and claims are not segregated. 

(d)    The Bank cited the case of Indian Bank vs ABS Marine Products [2006 AIR (SC) 1899]

Our Comment :- It appears that the Bank has not understood the facts submitted in the counter-claim and cited such a judgment if studied thoroughly well will reveal that it supports the case of the borrowers rather than the Bank.  

(e)     The Bank prayed to exclude the counter-claim out of the OA and further prayed to relegate the defendants to remedy of a civil suit  

Our Comment :- If the pleadings of the counter-claim are studied, it will be found that the subject matter of the OA and the counter-claim are the same with few additional parties. If the counter-claim is excluded and tried in civil court, it will result in multiplicity of proceedings entailing more cost and time. Since the counter-claim is much more than the claim of the bank, the recovery of the bank can not be made till the counter-claim is decided finally which will take much longer time in the civil court. The DRT is a specialized court in the matter of banking, industry and finance, it will be better to try the said counter-claim in DRT itself. As regards, the additional parties, they are necessary parties for the adjudication of the counter-claim and it has nothing to do whether they are present in the original claim or not. The working of the tribunal is in the interest of natural justice rather than being bound by CPC. Hence from all considerations, it would be much more appropriate that the counter-claim continues in DRT itself.

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DRT Solutions Weekly Mail – 52nd Issue dated 8th May ’09 (First Anniversary Issue)

Note :- All the weekly mails right from 41st to the latest have been published on our web site, the link being http://www.drtsolutions.com/weekly-news.htm

31st to 40th Issues available vide link

being http://www.drtsolutions.com/WeeklyMail-31-40.htm

21st to 30th Issues available vide link being http://www.drtsolutions.com/WeeklyMail-21-30.htm

11th to 20th Issues available vide link being http://www.drtsolutions.com/WeeklyMail-11-20.htm  

1st to 10th Issues available vide link being http://drtsolutions.com/WeeklyMail-1-10.htm

 

(1) Why are we backward by 200 years in Trial Courts/DRTs - remedial measures:- 

Eminent Justice V.R. Krishna Iyer (age 94 years) in his book ‘Law, Lawyers and Justice’ (published in 1988 by B.R. Publishing Corporation, New Delhi) at page 133 has written that the Indian Courts are behind 200 years. He further wrote that there is no awareness that the senior lawyers and senior judges need to be educated in the rapid developments of new jural horizons. Despite such comments, there is not much action. 

Even in 1969 vide citation AIR 1969 SC 1169, Swaran Lata vs Harendra Kumar, in Para 13, the Supreme Court of India stated that “It is very unfortunate state of affairs that eighteen years after the date on which the suit was instituted, we have to remand the suit for trial according to law. But we see no other satisfactory alternative” It is sad that the Supreme Court or Judicial Machinery in our country in 1969 and even thereafter did not take any effective steps to improve the trials. 

Even in 1924 vide FOREWORD of Mr. Justice C. Walsh, High Court Allahabad to the book ‘Sarkar on Evidence’ 12th Edition 1977, elaborated the thoroughness of preparation, importance and value of discovery, inspection of material documents, strategy for evidence, important witnesses and their cross-examination, He said that everything ought to be done strictly, particularly in law. He emphasized value of perfection for competent practice and procedure. 

Conclusion and Remedial Measures in DRT Trials 

(1) DRT is the court for the first trial. The litigants are entitled for complete justice based on judicial determination of material and relevant facts contained in the pleadings.

(2) It is needless to mention that the pleadings must be prepared by person having mastery of facts (relating to banking, finance and industry) and law (relating to banking, torts, damages, evidence and procedures)

(3) The DRT Advocate must be having adequate experience and knowledge on the above mentioned facts and law.

(4) One must prepare at least 7 days in advance under guidance from the person who prepared the pleadings. Every date must be dealt with thoroughly and perfectly.

(5) The purpose and objective of all courts including DRTs is to award justice. Any act and or activity causing injustice is neither permissible nor can be allowed.

(6) If any injustice is caused or noticed, written records be created and utilized at the earliest possible time.

(7) The DRTs shall be guided by principles of natural justice. The Supreme Court has laid down that one can travel beyond CPC and the only fetter is principles of natural justice.

(8) In view of above, the DRT Advocate should have experience of Senior Trial Court Advocate having additional knowledge of application of principles of natural justice. Unfortunately such advocates are rarely found in DRTs all over the country.

(9) After achieving excellent standard of pleadings, we have organized an advocacy cell specifically for guidance and advice to DRT litigations. As a result our clients who are going by our guidance have achieved remarkable results. 

(2) Origin and History of Tribunals in Judicial World 

It was nearly more than past 200 years in UK, the judicial machinery observed and took various actions as under:-

(a)     The adjudication in the trial courts in UK were based on Civil Procedure Code which was evolved during several centuries prior to 1800.

(b)    The said Civil Procedure Code was resulting into trials lasting several years and the said period of trial was going up year to year.

(c)     In order to expedite the trials, new courts were setup and were named as tribunals which came into function round about 1830 in UK.

(d)    Lot of problems and difficulties were faced for nearly 100 years. Several experiments were carried out from time to time. During the period 1937 to 1957, major reforms took place in improving the working of tribunals.   

(e)     On 1st Nov 1955, the British Govt appointed a committee under the chairmanship of Sir Oliver Franks. The said committee submitted its report in July 1957. On basis of this report, a permanent statutory advisory body was created in 1958, which was called ‘Council on Tribunals’

(f)      The said Council consists of 10 to 15 eminent persons from public including representatives of users. This Council is the apex body to review, enquire and lay down the constitution and working of the Tribunals (There are nearly 200 different types of Tribunals in UK)

(g)    The said Council has laid down the following 3 standards for the Tribunals:-

(1) Standard 1 ; Tribunals should be independent and provide for open, fair and impartial hearings.

(2) Standard 2 : Tribunals should be accessible to users and focus on the needs of the users.

(3) Standard 3 : Tribunals should offer cost effective procedures and be properly resourced and organized.

(h)    Thus the Tribunals in UK are controlled by a public body (which includes representatives of users) having statutory powers. The Tribunals are free from any control by the Govt or any higher Judiciary. The Tribunals use modern management techniques and latest technology.

(3) Tribunals in India such as DRTs are 200 years back compared to those in UK.  

In India concept of Tribunal is quite latest i.e. 1976 (when the constitution was amended) compared with 1800 in UK. The concept of controlling Tribunals by a public body and users in India has not come at all. It will take several years. Modern management and technology has not yet been introduced in the Tribunals in India.

In the context of DRTs, the Tiwari Committee in 1984 recommended that the DRTs should be manned by persons having specialized knowledge in the functioning of banks, financial institutions and industry. DRTs were constituted in 1993 and Even after 16  years that recommendation has not yet been introduced.

Conclusion

(1)     In India even Trials in civil courts are not being conducted properly. Proper trials by tribunals is far fetched idea.

(2)     The Courts are overloaded to the extent of 90 times compared with developed country. How can we achieve fair trial and hence justice by such overloaded courts and tribunals?

(3)     US commenced computerization of courts in 1970, we have not yet started.

(4)     On 9th July 2007, all the judges (15000) in the country were provided lap tops costing Rs, 40 crores with provision of 3 months training. We don’t find any judge using laptops in court rooms.

(5)     Until and unless public bodies as in UK control these DRTs, no improvement is expected. Till such time, the borrowers will have to work hard on every date so that perfect trials are achieved on all dates. The legal tools like Review, Appeal and Change in Court will have to be used constantly. Accordingly the DRT Advocate and the litigant will have to work very hard on each case on every date.

(4) Counter-claim having excellent pleadings requires equally excellent trial 

We have prepared pleadings in respect of counter-claims and damage suits for several borrowers in the country, which have been appreciated by senior, experience lawyers and judges. We have been empowering our clients so that they may guide their advocates. Those clients who were having regular guidance are in much better position compared with those who are going by their advocates only. Excellent pleadings as are prepared by us alone will not be sufficient to win against banks. We need equally excellent trials on every date. Any deficiency or defect on any date will create a weakness in the case which even may be difficult or impossible to cure later on.

(5) Selection of DRT Advocate 

After achieving high standards of pleadings, we found that our clients were not getting proper advocates in DRTs, we created our own Advocacy wing. We carried out lot of research and observed the following:-

(1) There is already huge shortage of proper Trial Lawyers in our country. In fact we have not yet achieved the desired standards for Trial Advocacy which were prevailing in 1800 in UK.

(2) The DRT Lawyer should have first very good experience and knowledge of Trials in Civil courts. He should have mastery of facts in banking, industry and finance as well as banking laws, CPC, Evidence, law of damages, law of torts, RBI Guidelines etc.

(3) So far our clients could get success either in 2 ways:-

            (a) Either the client himself worked hard and took our guidance on all dates, or

            (b) Hired the full services of our Advocacy Wing.

(4) Any other option resulted in spoiling of the case, correction of which became nearly impossible later on.

(6) This is our First Anniversary Issue of Weekly Mail  

We have completed one year of Weekly Mails and this is our First Anniversary Issue. We started Weekly Mail just after 4th May '08 after the DRT Conference at Indore. All the weekly mails past one year were published without fail on every Friday without any delay. On three occasions, these mails were publishes from outstations. There is a great demand for our weekly mails and we get lot of appreciation through mails and phones even from Senior Advocates and Judges. We have huge number of topics waiting to be covered. These mails have created a common platform for the borrowers, guarantors and their advocates. We try to provide only practical knowledge with emphasis on Proper Trials in DRTs so that the Bank Victims do not become victims of Advocates and Judges. Such knowledge is not available elsewhere  We thank our recipients of these mails particularly those who give us the feedback and suggestions for improvements. 

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DRT Solutions Weekly Mail – 51st Issue dated 1st May ’09

Note :- All the weekly mails right from 41st to the latest have been published on our web site, the link being http://www.drtsolutions.com/weekly-news.htm

31st to 40th Issues available vide link

being http://www.drtsolutions.com/WeeklyMail-31-40.htm

21st to 30th Issues available vide link being http://www.drtsolutions.com/WeeklyMail-21-30.htm  

11th to 20th Issues available vide link being http://www.drtsolutions.com/WeeklyMail-11-20.htm  

1st to 10th Issues available vide link being http://drtsolutions.com/WeeklyMail-1-10.htm

 

(1) Chairman Bank sentenced to 14 years Jail with fine of Rs. 70 lacs.

 

The Economic Times, Mumbai at Pg 4 of its 28th April ’09 issue reported that Indian Bank’s ex-Chairman and Managing Director Mr. M. Gopalakrishnan was sentenced to 14 years rigorous imprisonment and fined Rs. 70 lacs by CBI Court (Chennai) for committing wrongful losses to the bank. The AGM of the bank Mr. SV Shanmugasundaram was also found guilty and sentenced to 14 years of rigorous imprisonment with a fine of Rs. 80 lacs.

This news confirms our contentions that in all the counter-claims, damage suits and injunction suits like those pertaining to declaring willful defaulter, criminal complaints etc., the Chairman of the Bank must be impleaded he is found violating RBI Guidelines.

 

(2) Our Chennai client achieves a breakthrough against bank 

 

An extract from e-mail dated 30th April ’09 from one of our Chennai clients is as under:-

 

“Dear Shri Ram Kishan Ji,

Namaste

 

I have a wonderful break-through interim order from The High Court of Chennai; the second time from the beginning of this year. I dedicate them to my mentors i.e Yourself and Shri Dubey ji.

I wish to share it with the all your clients and readers of your weekly journal. This pool of knowledge shall give hope and rise the spirits of those destitute borrowers (Industrial) such as me.

 

1) The First Order is against the DIstrict Collector who was approached by the Bank as well as the Recovery Agent to seize the properties in spite of several cases pending in different forums of DRT awaiting Adjudication. I have already informed you the reaction of the Acting Chief Justice on the admission day 6th of Jan 2009.

Subsequently, the Dist Collector had withdrawn his notice and the Judgment copy is herewith attached for your records which clearly states that, 'A Dist Collector may assist in the matter of recovery of Debt from the Borrower if any Decree is passed by the Debt Recovery Tribunal and Recovery Officer may take steps to recover the amount.' and so on.

 

2) Today’s Interim order in the Writ Petition filed by me on the appointment of Recovery / Resolution Agents by the Bank

For the past 6 months I have been trying to investigate role of Recovery Agents; from the RBI Regulations as well as the SARFAESI Act.

In my thorough investigation there is only one Securitisation Company in India which fits the Sec.3 of the Act and as far as a Recovery Agent is concerned he is only the recovery arm of the Bank who is only assisting him and he is also to be qualified after such conditions mentioned in the updated circular DBOD.No.Leg.BC.75 /09.07.005/2007-08.

As such in my case the Recovery Agent / Resolution Agent was appointed in haste much prior to the 13(4) Possession Notice.

I myself drafted the writ, and provided it in final format as attached herein and after much contemplation finally dared to file it and bring the same to the 2nd bench where the same Justice Magopadhya and another Justice Krupakaran was sitting today.

Our item was 10, and as soon it came the bench was clear that it was a new technical challenge. THe senior Judge said, 'you are mistaken. A recovery agent can also be a (muscle man) employed literally to recover, and it does not fit into Sec.3' As advised to my counsel by me, we pointed to the Certified copies of the Registrar of Companies wherein the Main Objective of the appointed agent was to perform as a Resolution / Asset Reconstruction Agent. And the Order was passed.......

'IT IS HEREBY ORDERED THAT THE BANK HEREBY STAY ALL RECOVERY PROCEEDURES THROUGH ITS RECOVERY AGENT UNTIL FURTHER NOTICE. CASE POSTED TO 22 /6/09'

 My affidavit contains a can of worms which will be tough for the Bank to defend.

The pathetic situation of the Bank would be; it cannot disown them now, it has to produce all records under what yardstick it has appointed the said recovery agent, and under what terms. It cannot even support their act of  'the imposter'.

I have to do a lot of homework in the ensuing week linking all matters to the irregularities and crimes committed by the Bank under the  Sec 13, Recovery Proceedings.

All relevant documents attached. Today's order yet to be received in hand.

 

Kind Regards,” 

 

Our Comments:- The bank in collusion with the said recovery agent ( a body of retired bankers, collector and legal personnel) was all out to destroy the borrower. The said agent even dared to take part in the DRT proceedings. Our client fought the battle virtually single handedly under our guidance by creating records in the court and now finally complete scandal has been exposed before the DRT and the High Court. This validates our approach to create complete records in the trial court first by adhering to law and procedure of law even if the court/DRT is annoyed. Such records alone will be of immense use in the higher courts.  

 

(3) Our Madurai client reports complete change in the attitude of PO DRT 

An extract from e-mail dated 30th April ’09 from one of our Chennai clients is as under:-

“Dear Mr. Ram Kishan,

The hearing in High Court was on 27.04.09 and the Bank represented and requested for time for counter in the Writ petition. The judges told since it a simple matter why you need counter and granted time and posted on 09.06.2005 while Mr. Arun (our Advocate) pleaded to take up the matter on 28.04.09.

Today only I obtained the copy of the proceedings of 22.04.2009.

As I previously told after we filed memo to DRT that the appeal is pending before High Court, the DRT hurriedly listed on 22.04.09 and numbered all the I.As such as ‘Marking of documents’, ‘Reopening’, ‘Set-aside Petition of Ex-pare order’.

Besides all, the very important order is that DRT directed the bank to serve notice to the Official Receiver as per the previous orders obtained by them and to amend the original Application/Plaint and file the same.

The approach of Mr. Arun Murugan move to High court is highly commendable.

The following is the extract of the proceedings dated on 22.04.2009.

Regards” 

Our Comments:- This is yet another practical example when the PO DRT became so much annoyed with our client and his advocate that he was determined to ignore them completely by not deciding the interim applications, not numbering the documents and not paying any attention to the proceedings pertaining to official receiver as well as those in DRAT. Our client and his advocate worked day and night, had several telephonic interactions with us and created massive records against the said PO DRT Madurai. Such records and the behavior of the said PO were cited in the writ filed before the High Court. As soon as the PO came to know about the said writ, his behavior was suddenly changed. He took immediate action which were all ignored. This again validates our approach to create complete records in the trial court first by adhering to law and procedure of law even if the court/DRT is irritated and annoyed. Such records alone will be of immense use in the higher courts as illustrated in this particular case. The courts are meant only for justice and not for personal likes and dislikes of the judges/advocates. The judges are public servants and the moment they are powered by emotions/sentiments, they are not judges. At such moments only records must be created so that such records are put up before the higher courts when needed.    

(4) Damage suit filed after 21 years 

One  of our clients from Indore (present age 75 years) who came to us after fighting a long legal battle of 21 years during which his factory and residence were sold by the bank desired to file damage suit against the bank. We drafted the said damage suit and the same was filed on 24.04.09 before the District Judge, Indore. Since the loss and damages of Rs. 69.37 crores in the said suit are based on continuing cause of action, the time limitation was no problem.   

The draft of the above mentioned damage suit was examined and approved by top legal experts in the country.

(5) DRT Regulations 

We have received the “DRT Regulations 2003 for Maharashtra and Goa’  from one of our clients from Mumbai. On critical examination, it is found that many of the” DRT Regulations 1997” provided by the Govt. have been downgraded and so far none has raised this issue. We shall provide the basic material to our clients in Mumbai so that the same is agitated before the DRT Mumbai.

The said Regulations from other places are awaited. Our clients and the recipient of this Weekly Mail are once again requested to send us a copy of the Regulations being used in their respective DRT. 

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DRT Legal Solutions

 

Attorneys at Law of Torts, Injury and IPR Claims

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

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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