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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DRT Solutions Weekly Mail – 70th Issue dated 4th September ’09

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

(1) Power of Law & Power of Public in democracy is Supreme, even above the Chief Justice, Supreme Court of India, case of RTI Act:-

Power of Law and Power of Public in democracy is supreme, even it is above the Chief Justice, Supreme Court  of India as may be seen from the news item “Chief Justice’s Office falls under RTI:HC” vide Pg 2, The Economic Times, 3rd Sept ’09 Mumbai, extract reproduced below:-

“It is a ruling which will have far reaching implications for the higher judiciary, the Delhi High Court on Wednesday (i.e. 2nd Sept ’09) said the Chief Justice of India is a public authority and his office falls within the purview of the Right to Information Act. The information about the disclosure of assets given to the CJI by the judges at the time of their appointment shall be revealed to the public in accordance with the provisions of the Act, said the court. It is in sharp contrast to the Chief Justice of India KG Balakrishnan’s stand that his office was outside the ambit of the transparency law.

“CJI is a public authority under the RTI Act and the CJI holds the information pertaining to assets declaration in his capacity as Chief Justice. That office is a public authority under the Act and is covered by its provisions, “ said Justice Ravindra Bhatt.

The court said “declaration of assets by the Supreme Court Judges is an information under the Section 2(f) of the RTI Act. The information pertaining to declaration given to the CJI and the contents of such declaration are information and subject to the provisions of the RTI Act.” The HC turned down plea of the SC, which has said that the disclosure of information on assets given to the CJI by other judges was ‘unworkable’.

(2) Justice can often be done better by a good layman than by a bad lawyer:-

The following extract from Page 76 of the book “Natural Justice” 2nd Edition, by Paul Jackson, 1st Indian Reprint 1999 published by Universal Law Publishing Co. New Delhi is self explanatory:-

Lord Denning, resiling slightly from what seemed to be the absolute rule he had propounded in Pett, admitted that

“It may be good thing for the proceedings of a domestic tribunal to be conducted informally without legal representation. Justice can often be done in them by a good layman than by a bad lawyer” (at p. 605)

Our Comments

(1) Our experience from various All India Cases in the DRTs show that the Borrower litigants must hire services of experienced trial lawyers ( at least 15 to 20 years) in DRTs instead of inexperienced DRT Lawyers who have no previous experience of any trial in civil courts.

(2) The litigants must attend all the dates and watch performance of experienced trial lawyers before hiring their services.

(3) It is needless to mention that the stakes of the litigants are highest and any lapse as above will be near impossible to correct in higher courts.

(3) Natural Justice in India:-

The following is the brief summary on this topic from the Book “Principles of Administrative Law” by M.P. Jain 6th Enlarged Edition H/B, 2007 Page 320 and onwards:-

In India developments in the area of natural justice have been more or less parallel to those in England. The horizon of the right of hearing have been constantly expanding since 1962. In that year, in Ghanshyam [Board of High School vs Ghanshyam Das, AIR 1962 SC 1110], the Supreme Court embarked on an expansionist course in this respect; the Court recognized the nature of the right affected and the power conferred on the authority as controlling the question of hearing to the party.

Since 1970, a further expansion in the right of the hearing to the person affected by administrative process has been consummated by the courts adopting the strategy, again inspired by the change in judicial thinking in England, of discarding the distinction between quasi-judicial and administrative and involving the concept of fairness rather than natural justice. It was in the trend-setting pronouncement by the Supreme Court in Kraipack that the new liberal trend in judicial thinking was given vent to. Before Krijack, the distinction between administrative and quasi-judicial functions used to be a major element in deciding the question entitlement to right to hearing. Krijack changed this approach in a fundamental manner. The Supreme Court now categorically propounded the view that the distinction between quasi-judicial and administrative ought to be discarded for the purpose of hearing being to the affected party. Hegde J., speaking for the Court said :-

   “The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily and capriciously.”  

Our Comments

(1)     The details of the above leading judgment are given below.

(2)     All the DRT Litigants and their advocates must study this judgment thoroughly well and it must be remembered well in the pleadings and arguments before the DRT,  DRAT, High Court and Supreme Court judges.

(3)     Cases should not be allowed to proceed till the courts abide by the law contained in the said judgment as well as other leading judgments like Swaran Lata.

(4)     In future releases of Weekly Mails we shall provide several such leading judgments which are specifically useful in DRT and Securitisation matters.

(5)     Don’t be afraid of Judges in DRTs, when the power of law and power of people as given in Sl No (1) of this release is even above the Chief Justice, Supreme Court of India, why bother about the judges below him if they don’t follow the law and procedure of law including principles of natural justice.

  

IN THE SUPREME COURT OF INDIA 

Equivalent Citations: 1970 AIR(SC) 150 : 1969 Legal Eagle 206 : 1969 (2) SCC 262 : 1970 (1) SCR 457 

Judges : M.Hidayatullah : A.N.Grover : J.M.Shelat : K.S.Hegde : V.Bhargava 

A.K.Kraipak

Versus

Union of India 

Case No. : 173 to 175 of 1967 

Date of Decision : 29-Apr-1969 

Advocates Appeared:

Agarwal S.R. : Agarwala E.C. : Anthony Frank : Bindra N.S. : Daphtary C.K. : Dapthary C.K. : De Niren : Gokhale H.R. : Rai Champat : Sampath A.T.M. : Sen A.K. : Singh Harbans 

HEADNOTE :

Natural justice -- Necessity of compliance -- Adherence to past practice -- Likely unjust result from non -- compliance -- Effect of. With the increase of the power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism, Courts are gradually evolving the principles to be observed while exercising such powers. In matters like these public good is not advanced by a rigid adherence to precedents. New problems call for new solutions. It is neither possible nor desirable to fix the limits of a quasi -- judicial power.  

Quasi-judicial power--Distinction with administrative power--Considerations for. The dividing line between an administrative power and a quasi -- judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi -- judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. In a welfare State like ours it is inevitable that the organ of the state under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi -- judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi -- judicial power. 

Service Law -- Administrative instructions -- Principles of natural justice are applicable to the administrative orders and instructions and on that concept old decisions cannot be relied upon since concept of natural justice is expanding. 

Administrative enquiries -- Principle of natural justice -- Is applicable to administrative enquiries -- Rules of natural justice operate if no law is made. 

Natural justice -- Rules of -- Are applicable to administrative enquiries. 

STATUTES REFERRED:

     1. All India Service Act,1951,  S.3

     2. All India Service Act,1951,  S.2(a)

     3. Indian Forest Service (Initial Recruitment) Regulations,1966,  Reg.3

     4. Indian Forest Service (Initial Recruitment) Regulations,1966,  Reg.5

     5. Indian Forest Service (Recruitment) Rules,1966,  R.4(1)

 

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DRT Solutions Weekly Mail – 69th Issue dated 28th August ’09

 

(1) Comments on the M.J. Antony’s Column in 'Business Standard':-

Our clients from Pune, Ludhiana and Mumbai have made a reference to the contents of the recent column of Mr. Antony in 'Business Standard' titled ‘Debt collection pangs’/ August 26, 2009. Our comments are as under:-

(a) The recourse to remedy under law is available to every citizen including a borrower. Such action should not be termed as ‘stalling recovery proceedings’ If the lenders desire expeditious recoveries, they should seriously carry out legal audits before approaching the court of law. The courts are not meant to perform the functions of bank recoveries. 

(b) Further it is wrong to term the recent statutes as ‘powerful weapons in the hands of banks and financial institutions in the matter of non-performing assets 

(c) The new courts and the recent statutes in the form of DRTs and the new Acts will also  serve as a platform to bare open quickly (which was not so in civil courts) the wrong doings and misdeeds being committed by the beauracracy in banks and financial institutions.

(d) On the same fundamentals, if claims of the banks are intended to be decided expeditiously, the counter-claims of the borrowers will also, in turn, will be decided quickly. With passage of time, the Debts Recovery Tribunals may also become Damages Recovery Tribunals. 

(e) If the law of the land goes against the banks (i.e. one of the parties), it should not be termed as ‘blow to the fast track procedure envisaged by the SARFAESI Act)

In judicial process whether normal or fast track, none of the courts has any power and authority to cause any injustice.

(f) As a whole, a mature judicial mind should not talk about any judgment going against anybody rather the outcome should be accepted as attaining justice for the deserving party whether bank or borrower.

(g) It is wrong to say that ‘clever borrowers can put impediments and dodge their obligations by moving the civil courts’ Everybody including the borrowers have full rights to defend themselves using the available provisions of law.

(h) Mr. Antony is not aware about the counter-claims, damage suits and intricacies of trials in DRTs. There is no short cuts to the road of justice. The procedure of civil courts which were taking 15 to 20 years can not be just compressed to 6 months in case of DRT Act or 2 months in case of Securitisation Act rather the actual cases will take much more than the said 15 to 20 years for the simple reason that the procedures are also to be developed in DRTs which was already so in form of CPC 1908 in civil courts.

(i) The SC judgments like 'Indian Overseas Bank vs Ashok Saw Mills' decided on 16.7.09 being in all favour of Borrowers show the tremendous powers possessed by DRTs.

 

(2) Legal Issues - Counter-claim or Damage Suit must be based on the Constitutional Law and  Administrative Law including Principles of Natural Justice :-

We have received several queries on legal issues to be framed during the trial of Counter-claim or Damage Suits filed by the Borrowers. Our comments are as under:-

a)       Any dispute to be resolved by any trial court including DRTs involves Issues of Facts and Issues of Law vide O-14 of the CPC 1908.

b)      It is assumed that perfect pleadings have been drawn up by a person having mastery of facts and mastery of law.

c)       We have dealt with factual aspects in various weekly mails in past and hence the same is not being repeated here.

d)      None has paid adequate attention to the aspects of framing of legal issues. If proper provisions of law i.e. constitutional law and administrative law including principles of natural justice are applied, numerous legal issues will emerge.

e)       In certain cases, we have drawn up the pleadings based on the above provisions of law. It will take some time when the stage of framing of issue comes. 

(3) Current & Future Status of DRT Advocacy:-

Since we have clients all over the country, we constant get feedback about the current status of DRT Advocacy. Our observations and comments are as under:-

(a)     DRTs being a new type of tribunals having no specific restrictions or requirements for the Advocates, the initial working attracted either the young/fresh advocates or those advocates who were not having proper workload.

(b)    All the bank litigations (Rs. 10 lacs and above) going on in all the civil courts in a State were en-mass transferred to the DRT of the particular State.

(c)     The banks had established law departments as well as counsels. They made necessary changes in the suits being filed by them and soon the DRTs were flooded with the cases.

(d)    As regards defence lawyers, the same were mostly young advocates without any knowledge and experience of trial courts.

(e)     The POs were mostly qualified DJs or retired DJs whose experience was based on CPCs. Trial Courts to work on principles of natural justice was also new to them.

(f)      The DRT Act 1993 was amended in 2000 to incorporate the provisions of Counter-claims..

(g)    The DRTs were made to work under Ministry of Finance (Banking Div) which applied pressures for expeditious recoveries.

(h)    In the meantime Securitisation Act was enacted in 2002 with coercive provisions.

(i)      There were important SC judgments like Mardia in 2004.

(j)      In view of above, initial hazy picture of the DRTs started becoming sharper and sharper. Now it is well known that the DRTs require highly experienced and knowledgeable ‘Trial Advocates’ We have been advising our established clients to hire services of ‘Trial Advocates’ with minimum 20 years practical ‘Trial Experience’ otherwise they will have to repent in future. We shall provide all guidance, advice and knowledge to such advocates only. We have emphasizing these aspects to all our clients for past several years. Those who heeded to our advice, got very good results. Those who did not, landed into problems.

(k)    As laid down in 1984, the DRTs were to be manned by persons having knowledge of banking, industry and finance, no efforts in this direction has been done even after 25 years. Modern Management and Technology has not yet been introduced.

(l)      On account of our empowering of our clients, the above knowledge is fast spreading. The businessmen and or industrialists as litigants are the most capable players in the public to assert their rights to achieve complete judicial trials in DRTs. The fallout will prove to be a milestone for the judicial reforms which are most essentially needed to achieve the freedom from the (Indian in place of British) Raj.   

(m)  It is needless to mention that our constitution is ‘world class’ and hence we have decided to create ‘world class’ litigant borrowers. With passage of time, such litigants will help in getting matching advocates, judges and courts. 

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DRT Solutions Weekly Mail – 68th Issue dated 21st August ’09

 

(1) Bandwagon of ‘Public Funds’:-

One of our clients at Chandigarh who is forwarding our weekly mails to his circle, sent an interesting reply from a Manager of a Financial Institution reproduced below. As per our policy, we don’t disclose the identities as interaction on concepts are more important than the person concerned. The said mail and our comments are as under:-

Shri  

We have gone through your mail as below, giving showing how the public money is lying unutilized at DRTs. 

You would appreciate that  Money invested by banks and/or public financial institutions in the projects are also public  money, for which they are bound to repay to publics with interest etc.   If promoters will not repay their dues, bank/public institutions are bound to repay public and for this act these institutions will again borrow money from public.  By using these deed of act their health deteriorate , therefore, is not the moral responsibility of the promoters to repay their obligations. 

 Please note that the above communication is issued without prejudice to the litigation matter filed by     against you in DRT. 

Manager

(1)     In British days, the Courts had limited work and were working comfortably. The fundamentals of Management is that anyone including the Judge is a human being. The workload should be designed in such a manner that as any other employee, he should be able to complete his thorough work during the office time.

(2)     As soon as we got freedom, the scenario changed completely on account of following factors:-

(a)     We collected all the constitutions of the world and designed our constitution by taking bests among them.

(b)    We never bothered to conceive as to what will be its impact of courts overworking and management.

(c)     The important aspects of our constitution were (i) Fundamental Rights of the citizens which never existed in British days and (ii) Separation of Executive, Legislative and Judicial functions with the built in concepts that the  public being the Master will have ultimate control over the bureaucrats in the said 3 functions i.e. Executive, Legislative and Judiciary.

(d)    On account of above, tremendous load (something like 100 times ) came on the courts. But no body bothered to introduce Judicial Reforms till date.

(e)     It is mockery of law and justice as the system does not have even adequate time to adjourned the cases. The Judiciary kept itself isolated without getting it examined by Management Experts or introducing any modern technology.

(f)      It is sad that our Judges (even Supreme Court) visit the developed countries but never bother to change the system in our country.

(g)    Now all the information is available on internet. Our courts are in bullock cart age. The judges and advocates are using latest mobile, cars and other gadgets but in court room they don’t want to introduce the latest technology and management systems.

(h)    On account of above a Civil Suit in our courts take 15 to 20 years as against 9 month USA with highest level of quality.

(i)      Instead of improving the civil court we created DRTs with only change that the time schedules have been laid down for the bullock cart. Instead of 15 years we have laid down the time as 6 months. Since DRTs were found taking time, we created Securitisation Act reducing the time as 2 months. It is nothing but mockery of highest order.

(j)      In view of above, let us examine the advocacy being carried out by the Banks and their Advocates. They want to justify the coercive enactment on the bandwagon of ‘Public Funds’ In their conduct and behaviour they are not clear about the ‘Public Fund’ as may be seen from the following analysis.

(k)    In democracy everybody is governed by Rule of Law to achieve Justice. The Rule of Law is contained in Constitution of India and for DRTs in addition there is governance of Principles of Natural Justice.

(l)      They say we want to follow norms of NPAs as in developed countries. That is totally mistaken because the courts are not on international standards.

(m)  Securitisation Act 2002 could only be enacted along with Lenders’ Liability as in developed countries. We have not done so even after 7 years.

(n)    It was proposed in 1984 that the DRTs will be manned by persons having knowledge of banking, industry and finance. That has not been done even after 25 years.

(o)    After the enactment of Bank Nationalization Act in 1969, the method of lending was changed from Security Oriented to Project Oriented i.e. there should not be any securities like personal guarantee and collateral except the proportionate value of mortgage assets.

(p)    It is sad that proper appraisals are not being done, enhancement of limits and revival or rehabilitation takes huge amount of time and the unit is loaded with all costs of delays.

(q)    Since the above things  are not being done, it can only be said that the bank officials are making only fools statement about the “Public Funds’ as they themselves are committing numerous defaults and wrong doings as mentioned about. When some one comes before court of law, he should have clean hands otherwise he is not entitled for any relief.

(r)      This is just for information that all the above facts are pleaded by us in counter-claim and or damage suit. In almost all the cases, the damages are more than the claim of the bank and hence there is ‘No Debt Due’ Our contention is that you pay our money we shall immediately pay your so called ‘Public Funds

(s)     We repeat that No businessman will commit any default so long he is earning money. If there is any problem of non-payment, it is on account of his business suffering. If the banks and institution care for ‘Public Funds’, they should help in setting right the business and not mindless recovery that too out of his savings and survival which was so in British days but not in our welfare state. In all the cases being handled by us the said mindless approach vanishes when these officials are cross-examind. The best recovery is by running of the business and not coercive recovery like Pathans.

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DRT Solutions Weekly Mail – 67th Issue dated 21st August ’09

All Weekly mails right from 1st Issue to latest, click links below:-

(1) Strategy for Satisfactory Trial in DRTs:-

We have received several queries regarding the strategy for satisfactory trial in DRTs. Our comments are as under:-

(1)     DRT is a specialized Trial Court for judicial determination of material facts in the matter of DRT Act and Securitisation Act. It is first stage of trial in the hierarchy of judicial process.

(2)     Many of the problems are being faced by the defendant litigants as they are unable to find suitable trial lawyers for DRTs. In fact, even in civil courts, competent trial lawyers are limited in numbers and such lawyers are extremely busy and hence they are unable to pay any attention to the newly created tribunals like DRTs and DRATs intended to be guided by the Principles of Natural Justice rather than the CPC. Such new tribunals and the new procedures could not attract the established trial lawyers. We have observed that most of the DRT lawyers are young advocates. On account of these reasons, we have been advising our clients to involve themselves under our guidance and advice. Many of such clients who have followed our advice have been greatly benefited.

(3)     One must study the law laid down by the Supreme Court in the matter of Swaran Lata vs Harendra Kumar vide citation AIR 1969 Supreme Court 1967 Para 6. As per Article 141 of the Constitution of India, the law laid down by the Supreme Court shall be binding on all courts in India. Hence the DRTs being courts, the said judgment in the matter of Swaran Lata shall be binding on the DRTs.

(4)     The DRT Act 1993 does not bar application of Law of Torts and Law of Evidence.

(5)     As per the DRT Act 1993, the DRTs shall not be bound by the CPC 1908 but shall be guided by the principles of natural justice. As per the law declared by the Supreme Court in the matter of ICICI Bank vs Grapco Industries vide citation AIR 1999 Supreme Court 1975, on account of the principles of natural justice, the DRTs can even travel beyond CPC 1908. Thus scope of DRTs is much wider than the civil courts. As an example, in CPC, no appeal can be made against the order of Review, whereas in DRTs all orders including Review are appealable.

(6)     The DRTs and DRATs right from inception i.e. conceptual stage in 1984, are supposed to be manned by persons having knowledge of banking, industry and finance. So long as this is not being implemented, the borrower (including his advocate) will have to pay special attention to the technical aspects relating to the material facts concerning banking, industry and finance. If the opposite side or the PO raises any objection, his attention can be drawn to the Report of the Tiwari Committee published by RBI in 1984.

(7)     The DRT Act and Securitisation Act are focused and conditional enactments aiming at efficient operations. Beyond the content of the enactment, nothing has been done regarding management and technology. Civil Courts used to take 15 to 20 years against which the DRT Act aims at 6 months and Securitisation Act aims at 2 months. It is only in respect of ignorant clients, cases are being decided quickly. Such cases mostly involve small amounts. On the other hand, legally strong defendants, the matter is even taking more time compared with the civil courts as the additional aspect is development and evolution of procedure.

(8)     One has to be thorough and strict right from the day one as well as on every date. The pleadings should be drafted by person having mastery of facts and mastery of law. It is needless to mention that the counter-claim/damage suit is the only and ultimate defence. Efficient and experienced trial lawyer be employed so that adjudication on all dates is perfect and complete. Cross-examination of bank officials must be conducted by a person having mastery of fact relating to banking, industry and finance as well as law of evidence.

(9)     It is needless to mention that the courts including DRTs in our country are highly overloaded and hence emphasis being on disposal rather than decision results in injustice to the borrowers and guarantors. The higher courts also being heavily overloaded rarely interfere with the judgments of the DRTs. That is why repeatedly tell our clients that the DRT is the only and last court for trial of facts. If this aspect is ignored, no corrective measures should be expected from the higher courts.

(10) We are approached by many borrowers who did not pay attention to all the above aspects and as a result the trial in DRT was totally defective and incomplete. It becomes an Herculean task to handle such cases. Further complications are created due to inactions in lower courts and deposits in higher courts.

(11) On account of above, we have been empowering our clients right from the day one. Those who have heeded to our guidance are in much better position. In many cases the banks are approaching them to settle the matter  at 20%, 10% and even less than 5%.

(12) We shall be glad to guide our clients right from the day one. The only requirement is that the client himself will have to take the lead and constantly interact with his advocate.

(13) We are confident that in future when the DRTs will have supervision of public so that they have independent and impartial views, when advocates and judges trained in banking industry and finance will be manning the DRTs, benches are increased so that there are only 2 to 3 cases per day, modern management tools and technology is used, lenders’ liability bill is enacted, no personal securities/collateral are taken, RBI has real control over the banks, few cases of damages are decided against the banks etc., the present scenario will change. The time frame is highly uncertain and unknown. It is interesting to know that UK took more than 150 years to achieve effective and efficient tribunals. It needs high level of courage to adopt the judicial system developed in USA and UK which gives more emphasis to achieve justice rather than disposal and recovery as in our country. 

(2) India in 1835:-

Mr. K.C. Maheshwari of Indore has sent an interesting mail, extract reproduced below is self explanatory:-

LORD MACAULAY'S ADDRESS TO BRITISH PARLIAMENT.  FEB. 2 , 1835

"I have traveled across the length and breadth of India and I have not seen one person, who is a beggar, who is a thief. Such wealth I have seen in this country, such high moral values, people of such caliber that I do not think we would ever conquer this country unless we break the very back bone of this nation, which is her spiritual and cultural heritage and, therefore, I propose that we replace her old and ancient education system, her culture, for if the Indians think that all that is foreign and English is good and greater than their own, they will loose their self esteem, their native culture and they will become what we want them a truly dominated Nation."

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DRT Solutions Weekly Mail – 66th Issue dated 14th August ’09

DRTs, Background and Fundamentals of Law:-

We have received several queries and concerns on the recovery oriented expeditious approach of DRTs. Our comments are as under:-

(a)     Formation of DRTs was proposed by Tiwari Committee vide the RBI’s 1984 publication titled ‘Report of the Committee to examine the Legal and other difficulties faced by Banks and  Financial Institutions in Rehabilitation of Sick Industrial Undertakings and suggest Remedial Measures including changes in Law

(b)    At page 77 of the said Report, setting up of special Tribunals was proposed. It was said that these tribunals (DRTs and DRATs) should be manned by persons having specialized knowledge in the functioning of banks, financial institutions and industry.

(c)     Accordingly the DRTs and DRATs were established consequent on enactment of DRT Act 1993. The constitutional validity of this Act was questioned by the Delhi Bar Association in 1994. Before declaring the said validity in 2000, the Supreme Court of India asked the Govt to amend the said Act and accordingly the provision of Counter-claim was incorporated in DRT Act in 2000.

(d)    The DRTs so far have been manned by only Legal Persons i.e. the level of District Judges in DRTs and by High Court Judges in DRATs; thus the original recommendation as in (b) above has not yet been implemented. This is a major deficiency in present working of DRTs. The material facts relating to banking, industry and finance are not being properly understood and adjudicated upon and hence most of the trials in DRTs continue to be defective. Such defects can not be corrected or cured by the higher courts as they also are headed by only legal persons. We have emphasized these defects since 2001 in our web site as well as in our various articles published in ‘Financial Express’ and ‘Economic Times’  The litigant borrowers must keep this aspect in mind and take remedial measures in pleadings and adjudication on all dates at all stages.

(e)     As per Sec 22 of the DRT Act 1993 relating to ‘Procedure and Powers of the Tribunal and the Appellate Tribunal’, it is laid down that these tribunals shall not be bound by the procedure of CPC 1908 but shall be guided by the principles of natural justice. The scope of the principles of natural justice is much wider than the CPC. The litigant Borrower must have in-depth study of the same. Incidentally it is mentioned that originally the said principles were evolved for the Judges and later on inducted into Administrative Law. This is another most important aspect in DRTs. The litigant Borrowers must be quite vigilant and alert that on all dates at every stage, the said principles are not violated by the Judges (known as POs i.e. Presiding Officers of the DRTs or Chair Persons of the DRATs) as well as the Bank Officials.

(f)      As per the said Sec 22, it is further laid down that these tribunals shall have powers to regulate their own procedure. This is yet another important aspect. The borrowers should be alert and vigilant that any procedure evolved by the DRTs and DRATs should not violate the principles of natural justice and Constitution of India as well as the law laid down by the Supreme Court of India. Trial has to be conducted as laid down by the Supreme Court in judgments like Swaran Lata vs Harendra Kumar vide citation 1969 Supreme Court 1967 para 6. Further vigilance is required in respect of adherence to the Indian Evidence Act 1872. It is needless to mention that the CPC 1908 has taken nearly 200 years to evolve. Further the procedures of Tribunals has taken more than 150 years to evolve in UK. Hence the procedure of DRTs and DRATs also will take several decades in our country.

(g)    The DRT Act 1993 and Securitisation Act 2002 are ambitiously conditional with reference to time i.e the matter to be decided within 6 months. This is ridiculous. On one hand, the evolution of procedures itself will take several decades; the principles of natural justice being wider than CPC; the normal time in DRT trial will be much more than the civil courts which take 15 to 20 years. This is more so that the working continues to be manual without any new technology. Computers were provided to all the judges in July 2007 with 3 months training (Rs. 40 crores of public money was spent) and despite all pressures by the High Courts and Supreme Court, the said computers are still not being used by the Judges.

(h)    In view of above, the Judges in DRTs (being only legal persons and not having specialized knowledge of banking, finance and industry), guided by principles of natural justice (which is more wider than CPC), not having suitable procedure evolved and without any modern management and technology will commit several defaults in trial which will only be counteracted by alert and vigilant litigant borrowers resulting into proper trials (which of course will take several years)

(i)      The litigant borrowers have no option but to use the only and ultimate defending tool of damage suit/counter-claim in the above mentioned trial otherwise the trial will be incomplete and whole case will be lost.

(j)      The most important stages are pleadings, discovery of facts in documents and cross-examination for all these we have developed special expertise.

(k)    If the above is not understood and done by the litigant borrowers, the case will be quickly decided against him. The lapses and defects will be very difficult to cure in the higher courts. The appeal has been made very difficult due to near impossible condition of deposits which is inherently be cured in the original trial otherwise will be difficult in higher court.

(l)      Thus for the knowledgeable litigant borrower, the DRTs offer an unique opportunity to get all the material facts judicially determined. If the process is hurried, there is possibility of quicker decision on the counter-claim compared with the civil courts. In fact many of our clients have greatly benefited by our guidance and advice as well as the empowerment provided by us which in turn help their advocates.

(m)  It is needless to mention that we have done lot of research and accordingly use fundamentals of law enshrined in Jurisprudence, Principles of Natural Justice, Law laid down by the Supreme Court and Constitution of India at every stage right from the pleadings and trial on every date. That is why our article published in ‘The Financial Express’ in 2001 was aptly titled as ‘Who’s afraid of debt recovery tribunals?’ and since then our belief is getting more and more strengthened when our clients are achieving success in their cases. The day is not far when the ‘Public Servants’ in Judiciary and Banking will be dethroned with the application of law and procedure of law and the ‘Public’ will guide and monitor  the management and functioning of the tribunals as in UK and USA. The present litigants have an important role to play to achieve leading judgments. They should bear the pain and sufferings which is a price to be paid to achieve the real democracy. They should not be disheartened and demoralized due to present emphasis only on recovery by hook or crook in the cloak of judicial process. Persistent and strict adherence to law and procedure of law will alone enable to achieve complete and ultimate justice. 

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DRT Solutions Weekly Mail – 65th Issue dated 7th August ’09

(1) Defence Strategy in respect of Securitisation Act:-

The Banks and FIs are giving preference to invoking Securitisation Act for expeditious recovery of their alleged overdues. Many of our clients have been repeatedly approaching for knowing and understanding overall strategy to be adopted by the borrowers in defence. Our views  are as under:-

(a) The RBI Guidelines in respect of NPA should be studied thoroughly well.

(b) If there is any likelihood of account becoming NPA on account of wrong doings of the bank, one should make necessary preparations to counteract the impending Notice under Securitisation Act. First of all he should study the Securitisation Act with emphasis on Sec. 13 and onwards of the said Act.

(c) It must be understood that as soon as the said Notice is received, the borrower will get 60 days free time during which he must make his representation or objection to the bank.

(d) As per the scheme of the Act, the secured creditors have been vested with powers to take actions mentioned in Sec. 13 of the Act without intervention of the court of law. Thus for such provisions they are required to act just like a court to discharge their functions in a quasy judicial manner under Administrative Law keeping in view the principles of natural justice. The Supreme Court in the matter of Mardia Chemicals has also said that the said proceedings has to be conducted by the ‘Internal Mechanism’ of the secured creditors.

(e) As per Sec. 34 of the Act, no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a DRT or DRAT is empowered by or under this Act to determine and no injunction shall be granted by any court. 

(f) We have repeatedly advised that the counter-claim or damage suit against the lender is the only and ultimate defence.

(g) In view of above facts and circumstances, the borrower must prepare his said representation or objection just like a total defence containing all the wrong doings of the secured creditor as well as the loss and damages suffered and address the same to the authorized officer as if the same is being submitted to the said ‘Internal Mechanism’ (a quasy judicial court)

(h) As per the Act, the secured creditor is required to consider the said representation or objection within 7 days and communicate the reasons for non-acceptance if any. As per the Supreme Court in the matter of Mardia Chemicals, the said consideration should be with due application of mind. Thus the said ‘Internal Mechanism’ or the said quasy judicial Court of the secured creditor must adjudicate the said representation or objection keeping in view the principles of natural justice.

(i) Under the above facts and circumstances and when the loss and damages are much more than the claim of the bank i.e. ‘No Debt Due’ situation, even any action under Sec 13(4) becoming questionable, a solid foundation for defence is laid down.

(j) Further any notice under Sec 13(4) for symbolic possession with paper publication becomes cause of action for filing appeal under Sec 17 before DRT.

(k) As per Sec. 13(10) of the Act where dues of the secured creditor are not fully satisfied with the sale proceeds of the secured assets, the secured creditor may file an application in DRT for recovery of the balance amount.

(l) As per the Supreme Court, the said Appeal under Sec. 17 of the Act is akin to a civil suit. The foundation already laid down in the said representation or objection along with the decision of the said ‘Internal Mechanism’ will now provide complete defence in the said civil suit in form of the action under Sec. 17.

(m) As per Sec 17(3), the DRT is required to examine the facts and circumstances of the case and evidence produced by the parties.  

(n) As per the Sec 17(7) of the Act, the DRT may dispose of the application u/s 17 in accordance with provisions of the DRT Act.  

(o) If all the above is considered together i.e. civil suit as per Mardia, bar of civil court, judicial determination of facts based on evidence and application of principles of natural justice; the proceedings in DRT emerges to take shape of complete proceedings of a suit with procedure based on principles of natural justice. As per the Supreme Court, the procedure under the principles of natural justice can travel beyond the Civil Procedure Court and hence even there are no limitation of CPC, the scheme of the Act is self sufficient, exhaustive and exclusive with the aim to attain complete justice.

(p) All the above aspects are to be pleaded properly by the expert persons having mastery of facts relating to banking, industry and finance and mastery of law of torts, damages, banking, evidence, principles of natural justice. One has to be perfect on every date and in every proceedings. All the material facts need to be judicially determined. All the affidavits submitted by the bank officials be examined thoroughly. Ultimately much will depend on the cross-examination of bank officials which must be conducted by the experts in banking and evidence. It is needless to mention that we have highly trained persons for such cross-examinations.  

(q) We are just carrying on the court system established by the British for their Police Raj with practices and legacies of without any fundamental rights of the citizens, without any separation of powers and no action against the state or state bodies. The banks continue to behave with practices based on security oriented financing with least effect of nationalization and project oriented finance where the payment of interest and repayment of loans is out of profit instead of any security.

(r) In developed countries like USA, the time schedule for suits is 9 months and that too when they have highly developed applications of modern management, latest IT technology, humanly possible workload on judges, specifically trained advocates and judges, public monitored tribunals, unbiased and independent tribunals, highly developed and efficient revival and rehabilitation mechanisms etc.

(s) With passage of time, judicial system in our country also will improve. The borrowers now are getting much better informed and equipped particularly due to growing literature, precedents of bottom courts available for analysis and internet resources. They inturn will empower their advocates which will definitely have snowballing effect on the judges. This is how the law is developing in the bottom courts. Much will depend as to how the cases are pleaded and contested at every point of adjudication at every point of time and ultimately the verdict given by the Supreme Court.

(t) Hence if one is thorough at every point of time, the adjudication in DRTs will take considerable time which not only will make the case strong but the advantages of future developed judicial system will also accrue to such litigants. In this respect again the adjudication of counter-claim or damage suit will prove to be the highest determining factor of ultimate and final defence. As a whole one has to be always careful that until and unless all the material facts are judicially determined, the matter should not be moved to higher courts and if any occasion arises to move to higher courts, it should be confined to such matters only where facts have been judicially determined and decisions on legal issues if any only are required and not otherwise.

(u) The borrowers are entitled for the above exhaustive and perfect approach on account of highest possible powers donated to the creditor for the simple reason as to when the powers are high, the standard of duty is also correspondingly high. The approach has to be more cautious due to obvious smell of partisan and biased approach of the DRTs towards the alleged secured creditors.

(2) Concepts and Law relating to ‘Possession’ and ‘Ownership’ particularly with reference to the Securitisation Act:- 

The borrowers must study the concepts and law relating to ‘Possession’ and ‘Ownership’ particularly with reference to the Securitisation Act. Our views  are as under:-

(a)     Any good book on ‘Jurisprudence’ i.e. Science of Law has separate chapters on ‘Possession’ and ‘Ownership

(b)    Even separate books are available on these two important topics.

(c)     Concept of ‘Possession’ is multi-faceted and multi-dimensional. Possession may be ‘constructive’, ‘permissive’, ‘symbolic’, ‘prescriptive’, and ‘adverse’. In law possession means a capacity of a person having such control on property that he legally enjoy it to the exclusion of others having no better right than himself.

(d)    Possession has also the effect of creating ownership either by obtaining control by the user and possession for a length of time prescribed by law which is technically known as prescription.

(e)     In the legal sense, the term ‘ownership’ carries the connotation of right over a thing to the exclusion of all other persons. It implies noninterference by others in the exercise of that right and must be distinguished from mere holding a thing in one’s possession. Normally the ownership implies the right to possess, the right to use, the right to manage, the right to the capital and right to income.

(f)      When these concepts are specifically applied to the matters being dealt with under the Securitisation Act, the actions under Sec 13(4) can only be initiated when there is ‘Debt Due’ and all efforts to ‘Revive and Rehabilitate’ have failed. Further notice for ‘Symbolic Possession’ with advertisement will be the cause of action to approach to DRT by an application (akin to a civil suit) under Sec 17 of the Act. Consequently till the said suit is finally decided, the physical possession and ownership of the alleged secured assets of the borrower can not be disturbed.

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DRT Solutions Weekly Mail – 64th Issue dated 31st July ’09

(1) Multiple Recovery Actions by Banks - Comments:- 

We have observed that the Banks are indulging in multiple recovery actions. Our comments are as under:-

(a) In one of the cases at Mumbai, the bank invoked Securitisation Act. Our client filed an appeal under sec 17 of the Securitisation Act. During the pendency of the said appeal, the bank also invoked the DRT Act. The later action needs to be questioned on account of following reasons:-

(i) The Securitisation Act is itself a complete code. Invoking DRT Act results in multiplicity of litigations involving avoidable costs and time. Further there may be contradictory decisions on interlocutory applications or during the various stages of adjudications resulting into injustice.

(ii) The ratio decidendi in Transcore is entirely different and hence the same is not applicable in the above facts and circumstances.

(iii) In view of above, an application may be made and filed in DRT to withdraw the OA. If the verdict of the DRT is not in favour of borrower, the order must be reviewed and  appealed to higher courts.

(2) WS on Counter-claim received from Bank – Legal Actions thereon   :- 

One of our clients at Ranchi has received WS (filed by the bank) on their counter-claim filed against the OA.  Following actions need to be taken:-

(a) In most of the cases, the banks deny all the facts pleaded by the borrower in his counter-claim. Such facts must be examined by an expert having knowledge of banking, industry, finance and law.

(b) In all the bank litigations including this case, the facts are contained in the documents and all documents are in power and possession of the bank. Hence all the relevant documents must be inspected in original. The bank is duty bound to provide the certified copies of the said documents.

(c) After having copies of all the documents, the borrower must study all the documents from all the angles and then issues must be framed and settled.

(d) After getting the claim affidavit, the borrower must initiate actions for cross-examination of the bank officials.

(e) All the bank officials (specifically including the Chairman of the bank and the Branch Manager and other bank officials) should be cross-examined by a person having mastery of facts (relating to banking, industry and finance) and mastery of law of evidence. The aim is to get all the relevant facts wrong doings judicially determined including  admission by the bank officials.

(f) The complete evidence of the bank officials must be video graphed.

(g) The final arguments must be held by legal experts having mastery of facts and mastery of law.

(h) We have trained and expert persons available for all the above functions.   

(3) Deposits during the adjudication in DRTs:- 

There are few provisions of deposits in the DRT and Securitisation Act apart from the court fees. In many of the instances, the units are closed or running in losses and it is not possible to have or mobilize funds for the prescribed deposits. Following remedial actions are proposed:-

(a) In the  WS and or Counter-claim/Damage Suits, suitable pleadings must be made with facts as to why the borrower company is not having funds for deposits. The balance sheets must be referred to.

(b) DRT may be asked to declare that the said Company is not having any funds for the deposits.

(c) Whenever any authority insists for any deposit, the said declaration may be referred to.

(4) Appointment of Supreme Court Judges in US  – Law Degree not essential. Age no bar:- 

It is interesting to note that in the US Supreme Court, for appointment of judges, there is no bar with reference to education, qualifications, age, citizenship, constitutional restrictions or otherwise. Of 110 judges appointed so far, 47 did not have even the law degree, 18  had only half finished law degree, one served even upto 90 years of age, one was appointed even at the age of 32 years. The only criteria is nomination by the President and then confirmation by the Senate. In such confirmation, the public at large also takes part in the process of confirmation. The sole aim is to get such brain which is capable of impartial and independent judicial decisions. Such judges handle only 1 or 2 cases per day and less than 12 cases in a month. There is no pressure for the time taken to write the judgments. The average time for writing judgments is about 9 months. They do all their work during duty hours. The complete proceedings in the court is video-recorded and is available on internet for viewing of the public.

The judges are classified as Judicial Workers. The above norms are derived by studying the judge as a human being. As a whole the aim is to attain complete justice.

If we compare the above in Indian scenario, the judges are heavily loaded. They carry the files to their homes. They have to deliver the judgments in prescribed time. They have targets for disposal. On account of heavy load, lot of time goes in adjourning the dates and that too with the restrictions that the next date should be within 30 days. All these results in the judgments being far away from complete justice giving rise to avoidable reviews and appeals which again are handled by similarly overloaded judges.

The above is based on massive resources available on Internet. The Law colleges, advocates, judges and common public are requested to study the same and mobilizes opinions for earliest possible judicial reforms.

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DRT Solutions Weekly Mail – 63rd Issue dated 24th July ’09

All Weekly mails right from 1st Issue to latest, click links below:-

   1-10  11-20  21-30  31-40  41-50  51-Latest 

(1) Export Credit & Customer Service to Exporters – RBI Master Circular:- 

(a) The RBI in Para No 2.6.2 of the RBI Master Circular No DBDO.DIR (Exp.) BC.01/04.02.02/2007-08 dated July 2, 2007 has stated that “ As the post-shipment guarantee is mainly intended to benefit the banks, the cost of premium in respect of the Whole Turnover Post-Shipment Guarantee taken out by banks may be absorbed the banks and not passed on to the exporters.

(b) The above has also been informed by the FIEO News in its May 2008 issue. The FIEO (i.e. Federation of Indian Export Organisations) has been setup by the Ministry of Commerce, Govt. of India). Any complaint as above against the banks may be lodged with the FIEO with copy to RBI. This may also be pleaded as one of the wrong doings in the counter-claim/damage suit filed against the banks, OA Dismissal Application and or the Appeal u/s 17 of the SARFAESI Act. Further the vouchers and relevant documents of the banks may be called while calling for production and or inspection of relevant documents during trials and cross-examination.   

Our Comments :- In most of the cases, it is observed that the banks are passing on this expanses to the exporters. Hence complete accounts right from the inception may be checked up and the Banks asked to correct such wrong debits.  

(2) Precautions & Prudence for Entrepreneurs with particular reference to DRT Litigations:- 

We are having constant interactions with the entrepreneurs facing litigations in DRTs. Our observations are as under:-

(a)     Entrepreneurs are the real change agents for the society. Any society desiring rapid development and growth should create such environment which encourages the entrepreneurs and entrepreneurship. USA is the foremost among such societies. In India, all odds are against the entrepreneurs.

(b)    The entrepreneurs desire wealth, power and status.

(c)     There are productive and unproductive entrepreneurs. Here we are concerned with productive entrepreneurs in the arena of business and industry.

(d)    There are all attractions and allurement for the entrepreneurs by the Govt agencies like Deptt. of industry, banks and financial institutions. Red carpet welcome is given to new entrepreneurs. Nobody talks about the pitfalls, problems and agonies during disputes arising even out of circumstances which are beyond control of the entrepreneur.

(e)     Most of the entrepreneurs are so enthusiastic that do not look to the ground realities even for the negative aspects.

(f)      We have seen that the entrepreneur has worked hard, created residential properties for self use, created wealth for old age but the banks and financial institution insist for having such properties as collateral and his personal funds to be invested as equity. Further he is made indebted to his relatives and friends.

(g)    It is pathetic to find that there  are inordinate delays by the banks in sanctions of limits, revision in limits etc and as a result the business becomes sick. Huge time and resources are consumed in the exercise of Revival/Rehabilitation etc. Studies after studies are conducted for the viability. Despite positive studies, the revised funds are not sanctioned. During such period, the business catches chronic sickness and hence the rehabilitation is not done. During such period the entrepreneur is sucked out financially and rendered even penniless. After such stage recovery actions are initiated.

(h)    It becomes a fight between mightiest with the weakest. In fact such recovery actions should not be entertained by the courts as is done in some countries. But our bureaucracy in banks so cruel that not only suits are filed, they are contested with all might leading to recovery certificates.

(i)      Under the above facts and circumstances, the entrepreneur should first pay attention as how wealth is generated.

(j)      It is well known that DRTs and Courts are biased towards the borrower litigants. Hence the fight becomes all the more difficult.

(k)    There are many alternatives/options/plans as to earn wealth so that first survival is ensured.

(l)      The court battle is long drawn, time consuming and hence expensive.

(m)  Earlier the Civil Courts were offering lot of time for litigations but those situation has been altered with the onset of DRTs.

(n)    If the DRT/Court battle for the bank litigation including counter-claim is fought thoroughly well on every date with mastery of law and mastery of facts, there are chances to win against the banks.

(o)    We have observed that the bank litigations can not be left to advocates only. The entrepreneur himself will have to take active interest.

(p)    We have all along encouraged the entrepreneur to fight the legal battle thrusted upon him treating the same as a new opportunity. The legal knowledge is as essential as marketing, technology, management, finance etc.    

(q)    As emphasized the trial court like DRTs are very important. It’s a foundation and hence success in DRTs is most essential otherwise there is no scope for corrections in higher courts. Unfortunately there is dearth of competent DRT lawyers. On account of sheer grabbing the business, the advocates have brought down the rates to such a low level that its not possible for competent advocates to work on such low rates. Hence the entrepreneurs are advised not to be trapped by such advocates otherwise the mistakes committed in trial will not be possible to be corrected later on and the whole case will be lost completely.

(r)      Competent DRT advocacy requires lot of knowledge and experience at every point of time. Lot of research is required to be done as the whole atmosphere is against the borrowers. The major factor is huge overburden on the Judges and as a result there is natural tendency to dispose the matter rather than decision based on justice which itself requires lot of time and energy.     

(s)     Looking to the requirements, we offer complete guidance and advice to the entrepreneurs at every point on every stage of the bank litigations.

(t)      Our strength is treasure of knowledge and experience focused on bank litigation for several years and still continuous research being done. Further we are daily flooded with real problems from our clients all over the country. Such active involvement further enriches our knowledge and experience. Our team discusses and analyses each and every such new problems to find out innovative solutions. Such knowledge and expertise has its own cost but compared with the gains, such cost is peanut. We prefer to be engaged in extending our services to professional clients who also prefer and appreciate such services on account of results.

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 – 62nd Issue dated 17th July ’09

 

(1) Balance Sheet of the Borrower & alleged Admission of Debt:- 

One of our clients at Mumbai has raised a question whether the borrowings shown in the balance sheet amount to admission of debt. He also made a reference to a judgment of Bombay High Court. Our comments and precautionary actions to be taken are as under:-

         I.      No document including the Balance Sheet is to be read in isolation. Complete correspondence, facts and circumstances are to be taken into account and then only the Balance Sheet or its part can be interpreted.

       II.      If the lender has committed any wrong doing resulting into loss and damages, the incidence of the said loss and damages are to be considered in working out the debt due.

      III.      In the 13th Issue of our weekly mail dated 8th August 2008, on the topic of ‘Admission in Balance Sheet’ we have already made the comments reproduced below:-

(a) Whenever copy of any balance sheet is sent to the secured creditor or is filed in the Court of Law including DRT, it must be clearly mentioned by way of ‘Important Note’ that:-

“The loss and damages caused to the borrower by the lender is much more than the amount lent. Hence the figs of the borrowed amount shown in this balance sheet after due adjustments with the said loss and damages results in ‘No Debt Due’, rather the borrower is entitled to recover substantial amount from the creditor. Under these facts and circumstances, the figures of borrowed amount in this balance sheet can not be considered as admission, if any, of the claim of the creditor.”

(b) Whenever any action is initiated by the creditor based on the alleged admission in the balance sheet, reference can always be made to the above ‘Important Note’.  

    IV.      The borrower should also ask for the balance sheet of the creditor to ascertain whether the debt has been written off or the counter-claim or damage suit is not mentioned. These facts will contribute towards admission if any of the creditor.

(2) Illegalities should not be allowed to be continued at any stage during the DRT trials:- 

The general observations about the DRT Trial is that the system is biased in favour of the banks and FIs. Our observations, comments and remedial measures are as under:-

(a)     It is well known that the trials in civil courts take 10 to 20 years and even more. Hence the trend all over the world has been towards Tribunals. In banking litigations, the DRTs have been formed and NCLTs will come up.

(b)    In DRT Act, it has laid down that endeavour should be made to dispose of the suit finally within 6 months. The suit which was taking 10 to 20 year and even more is now intended to be within 6 months. Civil courts had certain limitation of CPC but in case of DRTs, the said limitation has been removed and hence real trial in DRTs will take even more time than the civil courts. Hence the POs in DRTs are in a fix as to how to complete the trials in 6 months, which is practically not possible. Hence they are inclined to adopt short cuts or violations of law and procedure of law.

(c)     Under these facts and circumstances, the borrower and his advocate must be quite vigilant so as not to allow any illegality at any point of time. If it happens, one must immediately examine whether one has to invoke jurisdiction of Review or Appeal. It is needless to mention that the legal issues can be raised at any stage of the trial and one need not wait for its being part of the entire trial. As per the principles of natural justice, any illegality should not be allowed to be continued and should be set right without any delay.

(d)    If there is any scope of Review, it must be filed first. The Review Petition must be exhaustive followed by Oral Arguments and Written Arguments. In complicated matters, we can even provide ‘Video Arguments’

(e)     If the Review Order is not favourable, one should file Appeal against the said Review Order (In CPC, appeal against Review is not permissible, but in DRTs, since every order is appealable, review order also can be appealed against)

(f)      The matter if needed will have to move the route DRAT, High Court and Supreme Court.

(g)    The DRT Litigants have to prepared for the time and resources consumed in the above process. The replies being submitted by the bank in different courts must be kept in view. A persistent effort alone will bring justice to the borrowers.

(h)    Many of our clients all over the country have achieved tremendous success in getting justice by following the above process.

(i)      As regards the time, it will take more than 10 to 15 years or more. The time will be cut down only when the Judges have only 1 or 2 cases per day, they use modern management and modern IT tools, the judges and advocates in DRTs are imparted special training in banking, industry, finance, management  and technology etc. The DRTs should have technical member having expertise in banking, industry and finance. Further tribunals need to have supervision and control by citizen counsels as in USA and UK. Till all these happen, the existing litigants will have to face the brunt of long drawn battle and substantial resources as the mighty banks will continue to fight from DRT to Supreme Court. It is assumed that the borrower has filed a counter-claim/damage suit as it is the only and ultimate defence.

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DRT Solutions Weekly Mail – 61st Issue dated 10th July ’09

(1) Pleadings in Defendants’ Counter-claim in DRTs:- 

The specific provision of counter-claim in DRT Act was made by the Govt. in the year 2000 at the instance of the Supreme Court while deciding the writ petition of Delhi Bar Association filed in 1994 questioning the constitutional validity of the DRT Act 1993.

Such provision is not a new matter e.g. such specific provision of counter-claim was made in 1976 in the CPC 1908.

There are several cases where counter-claims have been awarded since 1976 in civil courts and on the same analogy, counter-claims have been awarded in DRTs.

As has been emphasized on our web site since 2000, the counter-claim is the only and ultimate defence in bank recovery cases being adjudicated upon in civil courts or DRTs.

It is needless to mention that the person drafting the counter-claim should have mastery of facts (relating to banking, industry and finance) and law relating to banking, damages, torts, principles of natural justice, CPC and accounts.

Since properly drafted counter-claim is a relatively new phenomena in DRTs, we have found different practices in various DRTs through our clients. Further in respect of Industrial Finance, the actual facts have neither been pleaded nor adjudicated upon. Pleadings drafted by us are under adjudication in various DRTs since 2001.

Until and unless proper pleadings are made right from inception, the results of such deficient pleadings will result in a most important lacuna making the defence as weak right from inception.

It is well known fact that the DRTs are inclined to act in favour of banks and FIs. Many of the borrowers  who rushed to DRTs without proper pleadings quickly lost their cases. Since the DRTs are the technical tribunals with relatively of recent origin, the procedures and judgments are getting evolved. In next 5 to 10 years, some leading judgments are expected mostly based on the pleadings submitted by our clients, exhaustive pleadings now suggested by us may not be needed after 5 to 10 years. This is how law evolves.

(2) Necessary Parties in Defendants’ Counter-claim in DRTs:- 

We have been emphasizing that the Branch Manager and the Chairman of the bank are the most essential necessary parties in the bank litigations. The RBI since 1976 have laid down specific duties of the Chairman in several RBI Guidelines and hence if the Chairman of the bank is not made a party, those RBI Guidelines will not be fully applicable and hence the desires of the Govt expressed through such guidelines will not be implemented. Similarly the Branch Manager is another vitally important party. Hence exhaustive pleadings about the Branch Manager and the Chairman must be made, the relevant documents inspected and these officials must be cross-examined to elicit the vital facts for judicial determination. Any shortcoming, lacuna and or deficiency in this respect will render the case of the borrower weak and the same will never be possible to be corrected subsequently by any means. 

(3) Important aspects in Defendants’ Counter-claim in DRTs:- 

(1)     As emphasized by us since 2001 on our web site, first and foremost is the pleadings.

(2)     The second most important aspect is perfect adjudication on each and every date.

(3)     The next important aspect is judicial determination of facts by way of inspection of material and relevant documents and cross-examination by persons having mastery in evidence and banking.

(4)     If any of the above point is missed or ignored, the case of the borrower will become weak and the lacuna/deficiency will not be possible to be corrected by any means afterwards.

(4) Response and Behavior of Banks towards Borrowers’ Counter-claim in DRTs:- 

(1) While contesting the Borrowers' Counter-claims, the Banks have the role of a defendants. As usual, they apply the same tactics to delay the matter as is done by the defendants. 

(2) The response and behavior is quite different compared with the situation when the bank is a plaintiff while pursuing its OA when they want to hurry up and repeatedly mention about the importance and delay in recovery of public funds.

(3) Such intentional delays caused by the banks in fact delays the adjudication of their own claims. Since in all most all the cases, the counter-claim is more than the claim of the bank, there is 'no debt due' and hence the claim even if decreed can not be executed until and unless the counter-claim is decided.

(4) Usually the courts also do not pressurize to expedite the counter-claim as compared with the OA, the counter-claims get delayed. Thus as a  whole, these facts and circumstances directly and indirectly help the borrowers only. 

(5) As emphasized repeatedly, the essential requirements are perfect pleadings and perfect adjudication on all dates.

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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 

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