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(Debts Recovery Tribunal Legal Solutions) is an India based

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DRT Solutions Weekly Mail – 90th Issue dated 29th January ’10

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

(1) Indian Judiciary – Vital Statistics:-

Daily News Paper ‘Nai Dunia’ in its 26th Jan. issue published a special supplement which included vital statistics on Indian Judiciary as under with our comments:-

(a)    Average time spent on each case is 25 minutes.

(b)    At the present rate of disposal, it will take 124 years to clear the pendency

(c)    The Law Commission of India in its 124th Report published 12 years back recommended at least 5 times of the then existing strength of the judges.

(d)    The pendency of criminal cases is so huge in Delhi that it will take 466 years to clear the same.

Our Comments:- We have been emphasizing the deplorable state of affairs as well as the suggestions for improvement in various weekly mails. There is no option except being perfect on each date which will ultimately consume least possible time instead of hurrying up or adopting any shortcut. Application of modern management techniques combined with latest technology should precede with mindless increase of number of judges. Till such time, the litigant borrowers will have to bear the brunt by being more vigilant, alert and knowledgeable. The defence by way of counter-claim is the only antidote in the present circumstances.  

(2) DRT Conference in Dec. 2010:-

There has been constant enquiries about the next DRT Conference. Hence we have decided to hold the next ‘DRT Conference’ at Indore on 25th (Saturday) and 26th December 2010. It will be quite useful and brain storming to the Borrowers and their Advocates. Tentatively it is felt that the following topics should be covered:-

(a)    Analysis of most useful SC Judgments.

(b)    Practical suggestions for effective trials in DRTs.

(c)    Salient Features of Counter-claims and Damages.

(d)    Modern management techniques in Judicial Trials.

(e)    Success stories of our clients.

You are requested to offer your suggestions which will be highlighted in the weekly mails for interactions to evolve the final topics to be covered. As usual the entire conference will be video and audio recorded with transcript. It will be an unique opportunity for those interested in achieving satisfactory results in DRT litigations. 

(3) Appointments of POs in DRTs questioned:-

Our clients from Mumbai and Jabalpur have informed that the appointments of the respective POs have been questioned in the High Courts. Further the advocates in DRT Jabalpur have again gone on strike due to ‘No change in attitude of the PO despite previous strike’

(3) 2.5% of Counter-claims (by Borrowers)–Banks to make provisions in their Balance Sheet:-

It is learnt that the banks are required to make provisions in their balance sheets for at least 2.5% of the counter-claim made against them. The details of the legal provisions will be published in due course of time.  

(4) Corruption in Judiciary:-

An useful article has been published in the associate publication of Hindustan Times vide the link below. The said article is also reproduced below:- 

http://www.livemint.com/2007/05/02160432/Corruption-in-Judiciary.html

 

Corruption in Judiciary 

The sheer number of cases pending in the Indian judicial system (26 million at last count) says it all.

One of the most frequently used words in India, corruption signifies a range of things. In 2005, Transparency International and Delhi based Centre for Media Studies, a research firm, undertook the India Corruption Study. The survey covered 14,405 respondents over 20 states and included interviews with service providers and users (of these services). The results, published the same year said Indians pay out around Rs 21,068 crore as bribes while availing one of 11 public services. While some of the results of the survey were published, many of the details were not. The study, however, remains the most recent and the most comprehensive report on corruption in India. Apart from calculating the extent of corruption, in Rs crore, it explains the mechanics of it.

Courting Corruption

The sheer number of cases pending in the Indian judicial system (26 million at last count) says it all. Given that, and the number of judges across various states (per lakh of population), the system is rife with delays and inefficiencies -- ideal conditions for middlemen to step in. In the year preceding the survey, 59% of respondents paid bribes to lawyers, 5% to judges, and 30% to court officials.

1. Inaccessibility

The judicial system is highly dilatory, expensive, and beyond the reach of the common man. Ordinary citizens find it hard to seek redress, as litigation is expensive and extra money is often required to oil the wheels of the system

2. Misuse of power

There are instances of Metropolitan Magistrates issuing bailable arrest warrants against individuals of whose identities he has no idea, in return for an inducement.

Some time back, a Metropolitan Magistrate in Ahmedabad issued bailable arrest warrants against the President of India in return for an inducement of Rs 40,000.

In some cases, judges offer a favour in exchange for personal gain or favours. In Rajasthan, some time back, there were reports of a judge who offered judicial favour in exchange for sexual favours from a litigant. Some of these instances have been reported by the media, but no action has resulted.

Today, under existing rules, any person making any allegation of corruption or other things against a sitting judge can be charged and punished for contempt of court. This is a deterrent against more such instances coming to light.

3. A difficult impeachment process

The Supreme Court of India has ruled that no first information report (FIR) can be registered against a judge, nor, a criminal investigation initiated without prior approval of the Chief Justice of the Supreme Court. Once appointed, a judge of the High Court or Supreme Court cannot be sacked except by a complicated impeachment process, done by members of the Lok Sabha and the Rajya Sabha, the two houses of Indian parliament. Their immunity is reinforced by the fact that the procedure isn’t just cumbersome but also susceptible to political influence. In the 1990s, when the Congress was in power, a motion seeking to impeach Justice V Ramaswami could not be passed by parliament as Congress members of parliament abstained from voting. There have been no other attempts at impeachment in India.

4. Slow and inefficient

Many cases drag on for years. SAn oft cited excuse is the lack of staff, but the judicial process itself is unnecessarily complicated and inefficient, making cases drag on for a long time. Bribes are sometimes ought to davance the judgement or bend it. At last count, some 26 million cases were pending in Indian courts.

Why People Pay Bribes

1. Favourable judgement

Recent media reports have shown that it is possible to secure a favourable judgement in a lower court by bribing the judiciary, although the situation radically improves when it comes to the higher courts.

2. Speeding up judgement

There is a huge backlog of cases in Indian courts which results in delayed judgements. It is quite common for a case to drag on for years. People often have to pay bribes to speed up the process.

3. Other activities

A llot of non case related work also falls under the purview of the judiciary. This includes the issual of affidavits, registrations, etc. People often pay bribes to get this work done by a middleman.

4. Obtaining bail

The judge has a lot of discretion in issuing bail; the guidelines governing this are fairly basic. It is possible to secure bail by influencing the judge in some cases.

5. Manipulating witnesses

As some recent high-profile cases have shown, witnesses are manipulated through money or force into giving favourable testimony.

Suggested Solutions

1. Use of technology

* A review of how court records are handled and the introduction of modern tracking methods can eliminate much of petty corruption existing in lower courts

* Websites and CDs can explain basic law to laymen

* Court files can be computerized

* Video recordings of court proceedings should be maintained

2. Reduce the gap

* Provide alternative methods of dispute redressal to lighten burden on courts

* Increase number of judicial officers and number of fast track courts

* Create a vigilance cell for redressal of public grievances

3. Making the judiciary accountable

* Judges must be subject to judicial review

* Judges must follow a code of conduct

* Bar associations must act against corrupt members

* A public body must keep an eye on the judicial system

* An Indian judicial service must be created

* The proposed National Judicial Commission should have powers to fire judges

* Judges should declare their assets and those of their family

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DRT Solutions Weekly Mail – 89th Issue dated 22nd January ’10

(1) Scandal in DRTs – Importance of certified copies:-

It has been informed by one of the clients from Mumbai that one of the POs (who was suspended earlier) had a collusion with the bank. Accordingly part of the proceedings was subsequently changed and judgment favoring bank was delivered. The party was vigilant and alert. He had taken certified photocopies of the earlier and present proceedings. He submitted these documents before the High Court which has asked the DRAT Mumbai to investigate and submit a report.

The incorrigible bank officials may even influence the judicial officer by corrupt means. Hence we have to be very careful and that is why we have been insisting that always certified copies of the proceedings must be obtained, scrutinized and kept in record.

It is pertinent to note that the Transparency International has already reported that in India, the Police, Judiciary and Banks are one of the most corrupt 10 departments. They can go to any extent and hence the public has to be quite alert and vigilant in dealing with the public servants in these departments.

(2) WS not required till OA Dismissal Application is decided:-

Few of our clients have been repeatedly enquiring that during the course of adjudication of the application for OA Dismissal, the POs in DRTs are pressing for submission of WS. In this connection, it may be noted that the application for OA Dismissal is akin to an application under O-7 R-11 of CPC. An important Supreme Court judgment is contained in the citation AIR 2003 Supreme Court 759, Saleem Bhai vs State of Maharashtra, extract of the Head Notes is as under:-

Civil P.C. (5 of 1908), O.7. R. 11 – Rejection of plaint – Application for – Can be decided by Court on basis of averments made in the plaint – Filing of written statement by contesting defendant – Not necessary – Therefore, direction to file written statement by trial court without deciding application under O.7. R. 11 – Cannot but be procedural irregularity touching exercise of jurisdiction by Trial court.”

(3) Complaints about non-receipt of Weekly Mails:-

Last week we received several phone calls about non-receipt of our weekly mail. On investigation it was found that such problem arose due to trouble in the servers of Yahoo. That is why we post all our mails on our web site. Henceforth the mail recipients may also visit our web site if there is any problem in getting the weekly mail.

(4) Co-operative Banks are unable to deal with the legal battle with our clients:-

Five of our Mumbai clients had a varied experience during bank litigation with our clients described in brief as under:-

(1)    Recently in two cases after getting the notice u/s 13 of the Securitisation, we have sent detailed representation and objections, the bank sent a general and evasive denial. Instead of proceeding with further action u/s 13(4), the bank invoked the Arbitration clause in ‘The Mulit-State Co-operative Societies Act, 2002. Such action of the bank shows its frustration. Now we have questioned the said action by the bank.

(2)     In another case, the bank sold the assets to Arcil, such action has been challenged by us on the basis of famous Gujrat HC ruling in respect of Kotak Mahendra. This matter is now pending in Supreme Court.

(3)     In another case the competency of the Deputy Registrar has been challenged.

(4)     In another case, the defence of the bank is going to closed in the matter of damage suit filed by the borrower on account of non-compliance of the order to offer inspection of documents.

(5)    As a whole the co-operative banks are in a mess in legal front. If the borrower is alert, vigilant and knowledgeable legally, these banks will be unable to deal with him on account of such mess. Despite amendment in Banking Regulations Act in 1965, the legal foundation of the co-operative banks continues to be questionable even before the Supreme Court.   

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DRT Solutions Weekly Mail – 88th Issue dated 15th January ’10

(1) Importance of Review in Indian Judicial System :-

The Judges in Indian Judicial System are heavily overloaded. In a typical Indian High Court such as in Delhi, a Judge disposes off nearly 13,000 cases yearly whereas in UK, a Judge in equivalent position disposes only 150 cases. Under such heavy load, the judge is destined to commit errors and mistakes some of which definitely will be apparent on face of records on account of following facts and circumstances:-

(1)    He will have no time to go through the pleadings completely. As a result, he will not be able to grasp the real case and hence will apply his common sense which will give rise to whims and fancies. In USA, all pleadings, briefs and documents are read and understood by the judge word by word. Complete proceedings are audio and video recorded and also transcripted. The main purpose of the oral argument is an opportunity for the judge to ask questions. The dates of the arguments are fixed and known sufficiently in advance. Not more than 2 arguments are held in a day and not more than 12 arguments are held in a month. There are no disposal norms or time compulsion for writing judgments. Average time for writing judgment is 7 to 9 months during which complete research is done and final judgment is free from any error or mistakes. Under such facts and circumstances only one can say that the judgment has achieved finality.   

(2)    Since he does not understand the real matter, he will not be able to raise correct questions during oral arguments.

(3)    Even he does not have time to permit or listen to the complete oral arguments.

(4)    On account of above, all the required material facts will not be judicially determined.

(5)    He has no time to read the rulings thoroughly and hence is guided by the head notes which do not present the judgment as a whole. Hence there is no real and correct application of law.

(6)    On account of huge load on the judges, the advocates are also heavily overloaded. Further dates are not known in advance. Hence proper presentation is also not made.

(7)    As a whole the majority of judgments will suffer from errors or mistakes apparent on face of records.

(8)    Hence in the present circumstances, there is no remedy except Review.

(9)    The above circumstances will also apply to Review and hence repeated Review may be needed till the judgment is free from the said errors and mistakes apparent on face of records.    

(10) If one does not do that the higher courts have tendency to find fault of the litigants only.  

(2) Ingredients of Review in Indian Judicial System :-

The following are the ingredients of Review:-

(1)    Some mistake or error apparent on face of records.

(2)    New and important matter or evidence which, after the exercise of due diligence was not within the knowledge or could not be produced at the time when the decree or order was passed or made.

(3)    Any other sufficient reason.

(4)    Deprivation of fundamental right or any legal right.

(5)    Misconception of fact and or law by the court or advocate.

(6)    Violation of principles of natural justice.

(7)    Violation of law laid down by the Supreme Court.

(8)    On account of any suffering caused due to court.

 (3) Swami Yoganand is hale and hearty at age of 102 years and desires to live upto 150 years:-

We attended a presentation by Swami Yoganand (age 102 years) at Indore on 9th January 2010. He is hale hearty at this age and desires to live upto 150 years. He does not use any specks, all 32 teeth are in tact, hearing perfect, skin is glowing without any wrinkles, body is  perfectly flexible and supple. We have shot video of his presentation.

At present he stays at Bangalore with Sri Sri Ravishankar.

Details about him may be found in following links:-

http://blog.srinig.com/2008/02/swami-yogananda-a-99-year-old-yogi/

http://thestar.com.my/lifestyle/story.asp?file=/2008/2/23/lifeliving/20367306&sec=lifeliving

http://www.youthejournalist.com/article.php?aid=2826&sid=21

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DRT Solutions Weekly Mail – 87th Issue dated 8th January ’10


 

Extent & Implications of Overriding Effect in Securitisation Act :-

Many of our clients and several of visitors to our web site have been repeatedly asking about the extent and implications of the overriding effect stipulated under Sec 35 of the Securitisation Act reproduced below:-

 

“35. The Provisions of this Act to override other laws – The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.”

 

Our associate Mr. N.K. Sharma, ex-Dy. G.M.(Law) did lot of legal research and prepared an article which is reproduced below.

 

Securitisation Act, 2002 to Override Other Laws by Virtue of Section 35 of the Act

-          N. K. Sharma ex-Dy. G.M. (Legal)

 

Introduction 

1.      This has reference to the news item published in ‘Finance’ section of Economic Times dated 8 Jul, 2008 with the heading ‘SBI seeks SC ruling on provisions of Securitisation Act’, an extract is reproduced below for ready reference: 

“New Delhi: State Bank of India (‘SBI’) has moved the Supreme Court (‘SC’) seeking an authoritative ruling on the provisions of the Securitisation Act. Can any other law prevail over the provisions of the Securitisation Act? asked the country’s largest bank challenging an order of the Orissa High Court. It had said that the provision of the other law can supersede the Securitisation Act. A bench headed by Justice B.N. Agrawal sought explanation from Noble Aqua and others on SBI’s plea. Advocate Sanjay Kapur on behalf of SBI said that the concept of the Securitisation Act has shifted from the rehabilitation of the company to the recovery, as huge amount of public money is blocked in NPA. SBI, in its petition, said, “A combined reading of Sections 35 and 37 of Securitisation Act, 2002 (short for ‘The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002’) has overriding effect over other laws.” However, the High Court had said that the provisions of the SICA, 1985 will prevail over the Securitisation Act, 2002.” In this context let us examine some decided cases on the subject. 

When does the overriding effect operate 

2. As per the rules of interpretation the provisions of an Act are to be interpreted keeping in view the object of enactment of that Act. The important aspect to notice is that the overriding effect of the provisions of the Act, scheme or rules made there under would be that only when there is anything inconsistent in the said Act or rules or scheme vis-a-vis the other laws or provisions. If the rules or schemes made under the Act are silent on any particular subject matter and the other law requires any particular action being taken in respect there of, such a law would have to be complied with. 

2.1  As held by Hon’ble Supreme Court in the important decisions rendered in Karunanidhi Vs. UOI (1979) 3 SCC 431; Hoechst Pharmaceuticals Ltd  Vs. State of Bihar   AIR (1983) SC 1019 and other cases, the material test of inconsistency is that both the provisions under consideration should not be able to stand together  i.e., if one is followed, the other, in the result,  would be violated. This may arise by reason of direct conflict or indirectly by the later law occupying the same field, as the earlier one. It is in this context that in several schemes of the BIFR (short for ‘Board for Industrial and Financial Reconstruction’) where fresh issue of share capital in case of merger or other cases is envisaged, the approval of the Controller of Capital Issues earlier required under the Capital Issues (Control) Act, 1947 has been specifically put out of the way.  

2.2     Subsequently, hon’ble Supreme Court in Maharashtra Tubes Ltd. Vs SICOM  (1993) 78 Comp Cas 803 (SC), has held that the special legislation SICA, 1985 was to prevail over the provisions of the earlier special legislation State Financial Corporations Act, 1950. 

2.3     However, in a latest judgment Hon’ble Supreme Court in Gujarat Urja Vikas Nigam Ltd Vs. Essar Power Ltd, (2008 4 SCC 755; date of judgment: 13/03/2008) observed and held (per Markandey Katju, J.), inter alia, as follows (in para 9,  28, 33 and 60 ) : 

“9.        Mr. K.K. Venugopal, learned senior counsel for the appellant, has

relied on Section 174 of  the Electricity Act, 2003 (hereinafter in short

‘the Act of 2003’)  which states :           

Section 174. Act to have overriding effect : Save as otherwise provided in section 173, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 

28 Section 86(1)(f) of the Act of 2003  is a special provision and hence will override the general provision in Section 11 of the Arbitration and Conciliation Act, 1996 for arbitration of disputes between the licensee and generating companies.  It is well settled that the special law overrides the general law.  Hence, in our opinion, Section 11 of the Arbitration and Conciliation Act, 1996 has no application to the question who can adjudicate/arbitrate disputes between licensees and generating companies, and only Section 86(1)(f) shall apply in such a situation. 

33.        Section 174 provides that the Electricity Act, 2003 will prevail over anything inconsistent in any other law.  In our opinion the inconsistency may be express or implied.  Since Section 86(1)(f) is a special provision for adjudicating disputes between licensees and generating companies, in our opinion by implication Section 11 of the Arbitration and Conciliation Act, 1996 will not apply to such disputes i.e. disputes between licensees and generating companies.  This is because of the principle that the special law overrides the general law.  For adjudication of disputes between the licensees and generating companies there is a special law namely 86(1)(f) of the Electricity Act, 2003.  Hence the general law in Section 11 of the Arbitration and Conciliation Act, 1996 will not apply to such disputes. 

60.        We make it clear that it is only with regard to the authority which can adjudicate or arbitrate disputes that the Electricity Act, 2003 will prevail over Section 11 of the Arbitration and Conciliation Act, 1996.  However, as regards, the procedure to be followed by the State Commission (or the arbitrator nominated by it) and other matters related to arbitration (other than appointment of the arbitrator) the Arbitration and Conciliation Act, 1996 will apply (except if there is a conflicting provision in the Act of 2003).  In other words, Section 86(1)(f) is only restricted to the authority which is to adjudicate or arbitrate between licensees and generating companies. Procedural and other matters relating to such proceedings will of course be governed by Arbitration and Conciliation Act, 1996, unless there is a conflicting provision in the Act of 2003.” (emphasis supplied) 

3.       It is respectfully submitted that by drawing analogy from the ratio decidendi of various earlier judgments of Hon’ble Supreme Court, it may be safely concluded that the special legislation Securitisation Act, 2002 is to prevail over the provisions of the earlier special legislation SICA, 1985 for the following reasons: 

3.1         Hon’ble Supreme Court in Mardia Chemicals Ltd. & Ors. Vs. U.O.I. & Ors. (A.I.R 2004 SC 2371 / (2004) 4 SCC 311) while upholding the constitutional validity of the Securitisation Act, 2002 (‘the Act’) and its provisions except that of sub-section (2) of Section 17 of the Act, which is declared ultra vires of Article 14 of the Constitution of India, has observed and held, inter alia, as follows (in para 26): 

“………….the Act was enacted to curb the menace of growing non-performing assets (‘NPAs’).  It affects the banks and financial institutions which is ultimately against the public interest.  Due to non-recovery of the dues the banks also run out of the financial resources to further carry on the financial activity and to meet the need and requirement of its other depositors and clients.  The figures of NPA which have been given border around one lac crores.  After coming into force of the Recovery of Debts due to Banks and Financial Institutions Act and establishment of Debt Recovery Tribunals the success in recovery has not been very encouraging.  Therefore, need was felt for a faster procedure empowering the secured creditors to recover their dues and for securitisation of financial assets so as to generate maximum monetary liquidity. It has been felt that after coming into force of the Act there is a marked difference in realization of dues and more borrowers are coming forward to pay up the defaulted amount and clear the dues……………….” 

3.2         Section 37 of the Securitisation Act, 2002 provides that the application of certain other laws, named therein, not barred. However, it is significant to note here that the name of SICA, 1985 has been specifically omitted by the legislature. 

3.3          Further, Section 41 of the Securitisation Act, 2002 provides that the enactments specified in the Schedule shall be amended in the manner specified therein. It is pertinent to note here that in section 15 of the SICA, 1985, in sub-section (1), after the proviso, two additional provisos have been inserted. The later relevant  proviso reads as follows: 

“Provided also that on or after the commencement of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, where a reference is pending before the Board for Industrial and Financial Reconstruction, such reference shall abate if the secured creditors, representing not less than three-fourth in value of the amount outstanding against financial assistance disbursed to the borrower of such secured creditors, have taken any measures to recover their secured debt under sub-section (4) of section 13 of that Act.” (emphasis supplied) 

3.4  Therefore, as soon as the secured creditor(s) shall take any measures under sub-section (4) of section 13 of the Securitisation Act, 2002  to recover their secured debt, the reference made by the borrower, if any, which is pending before the Board for Industrial and Financial Reconstruction (‘BIFR’), such reference shall abate. Consequently, thereafter the provisions of the SICA, 1985 would not be applicable at all to the case of that borrower. 

 

Conclusion

 

4.    In the given case on April 7, 2007 SBI had sent a notice u/s 13 (4) of the Securitisation Act, 2002 for possession of the property of the company. In view of that, immediately on receipt of notice by the company the reference made by the company pending before BIFR has already abated. Consequently, the provisions of the SICA, 1985 would not be applicable at all to the case of that company. It is respectfully submitted that as a result, the question, whether or not the provisions of the SICA, 1985 will prevail over the Securitisation Act, 2002, does not survive for consideration.

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DRT Solutions Weekly Mail – 87th Issue dated 1st January ‘10

A very Happy & Prosperous

New Year

to You

& to Your Dear Ones

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

   1-10  11-20  21-30  31-40  41-50  51-60  61-70  71-80  81-Latest

(1)          RENDERING  JUDGMENTS – SOME BASICS

Courtesy and Thanks to Advocate Yashpal Rathore, we happen to know a MOST important article titled ‘Rendering Judgments – some Basics’ vide (2009) 10 SCC (J) which must be read, assimilated and used by all the litigants in DRTs. This article is written by Justice R.V. Raveendran, sitting Judge in Supreme Court of India. 

(2)          One of the Most Important SC Judgments:-

The above article of Justice Raveendran cites many useful SC Judgments but we found the following judgment which, if we use, is destined to change not only DRT Litigations but the whole Indian Judicial System:-

‘S.P. Gupta vs Union of India’, equivalent citations :-  1982 AIR(SC) 149 : 1981 Legal Eagle 497 : 1981 (4) Scale 1974 : 1981 (Supp.1) SCC 87 : 1982 (2) SCR 365

Justice Raveendran writes as under:-

‘The old British concept that a Judge is a neutral passive umpire has undergone a perceptible change in ‘S.P. Gupta vs Union of India Bhagwati, J. (as he then was) found the British approach was not suited to Indian conditions and attempted to define the role of a judge thus: (extract from the above judgment)

’27 - - - Now this approach to the judicial function may be alright for a stable and static society but not for a society pulsating with urges of gender justice, worker justice, minorities justice, dalit justice and equal justice, between chronic unequals. Where the contest is between those who are socially or economically unequal, the judicial process may prove disastrous from the point of view of social justice, if the Judge adopts a merely passive or negative role and does not adopt a positive and creative approach. The judiciary cannot remain a mere bystander or spectator but it must become an active participant in the judicial process ready to use law in the service of social justice through a proactive goal-oriented approach. But this cannot be achieved unless we have judicial cadres who share the fighting faith of the Constitution and who are imbued with the constitutional values. The necessity of a judiciary which is in tune with the social philosophy of the Constitution has nowhere been better emphasized than in the words of Justice Krishna Iyer which we quote: APPOINTMENT of Judges is a serious process where judicial expertise, legal learning, life's experience and high integrity are components, but above all are two indispensables - social philosophy in active unison with the socialistic articles of the Constitution, and second, but equally important, built-in resistance to pushes and pressures by class interests, private prejudices, government threats and blandishments, party loyalties and contrary economic and political ideologies projecting into pronouncements.

Justice Krishna lyer goes on to say in his inimitable style :

     JUSTICE Cardozo approvingly quoted President Theodore Roosevelt's stress on the social philosophy of the Judges, which shakes and shapes the course of a nation and, therefore, the choice of Judges for the higher Courts which makes and declares the law of the land, must be in tune with the social philosophy of the Constitution. Not mastery of the law alone, but social vision and creative craftsmanship are important inputs in successful justicing.

What is necessary is to have Judges who are prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence, who are  judicial statesmen with a social vision and a creative faculty and who have, above all, a deep sense of commitment to the Constitution with an activist approach and obligation for accountability, not to any party in power nor to the opposition nor to the classes which are vociferous but to the half- hungry millions of India who are continually denied their basic human rights. We need Judges who are alive to the socio-economic realities of Indian life, who are anxious to wipe every tear from every eye, who have faith in the constitutional values and who are ready to use law as an instrument for achieving the constitutional objectives.

(3) Feedback & Impact of our Weekly Mails:-

We get huge response to our weekly mails by way of phones, SMSs and e-mails. It is not possible to respond to individual and general mails.  Many of our clients invite us to address gatherings of borrowers and guarantors. Many persons connected with print and electronic media invite us for contribution or interview in their media. 

Our approach is to concentrate on individual cases so that whenever possible, leading judgments in favour of bank victims are achieved. Getting such judgment from the judiciary is not so easy. The fight is long drawn, time consuming and expensive. It is a fight between Mightiest with the Weakest, just like a wrestler fighting with a sick hungry child. It’s a fight between public servants and public. But this is how Democracy will come in and mature. 

In this issue we publish few of the responses from one of our visitors to our site – Mr. Mahendra B. Jain of Belgaum Karnataka  e-mail IDjinajivan@yahoo.co.in   We acknowledge and appreciate his feelings and views. We thank him for the time taken by him to write to us regularly. 

The following response from Mr. Mahendra B. Jain echo the feelings of the borrowers and guarantors. On the dawn of this New Year, we must dedicate ourselves to pay more attention to study of law and procedures of law concentrating on perfect trial on every date. A day will come when the entire judicial system from trial court to the Supreme Court will understand and declare the real facts involved in banking, industry and finance. The outcome will be better industries, better banks and better judicial infrastructure. 

DRT Solutions Weekly Mail - 85th Issue dated 18th December '09 

Respected Sir, 

All your suggestions for reform are valuable but the system is so thick skinned that its gotten deaf to such sincere recommendations. what is needed sir is a comprehensive change in the system or the "Vyavastha". 

Sir, I most humbly feel sir that Baba Ramdevji has provided for you a right platform in the form of "Bharat Swabhiman Trust" to reach your valuable revolutionary voice to the masses. 

Kindly give it a thought sir. 

DRT Solutions Weekly Mail - 85th Issue dated 18th December '09 

Respected Sir, 

Pranaam. Jai shree Krishna!

Your mail Received as early as at 3.59 AM speaks volumes Sir about your selfless Service to the cause and your Compassion, kindness n unconditional Love. 

We are always at your service sir in your mission to provide justice to the harried borrowers who are subject to the tyranny of the mighty, ruthless, merciless banks out to deny justice by adopting means fair n foul, taking advantage of the hapless financial condition of the borrowers. 

Sir, the entire family, the children and the womenfolk of the borrower's family have to bear the brunt of the merciless callous inhuman approach of the bankers. They are so psychologically shattered that even a friendly knock at the door scares them.
Even a friend visiting home scares them. No money can compensate for these ill effects of terror caused by the bankers and their greed. 

Thousands and thousands of men women children and senior citizens pray for you everyday Sir to express their gratitude for the guidance and moral support you provide so religiously and Selflessly Sir not bothering about your personal comfort and profits. 

Sir, you are "Rarer Than the Rare Ko - Hi - Noor" Diamond. 

We Salute you Sir! 

DRT Solutions Weekly Mail - 84th Issue dated 11th December '09 

Respected Sir,

Pranaams. 

Sir, thanks for the fantastic Quote. 

Sir, You teach the real values of life  to us. 

Sir, its true, that world is getting more mechanical, less humane...!!! 

Always Grateful to you sir. 

DRT Solutions Weekly Mail - 83rd Issue dated 4th December '09 

Respected Sir,

Saadar Pranaam. 

Sir, many many sincere thanks for the educative, valuable Weekly Mail.

Sir, i am grateful to your kindself for the same. 

DRT Solutions Weekly Mail - 81st Issue dated 19th November '09 

Respected Sir,

Pranam. 

I acknowledge with deep gratitude the receipt of your highly informative, Weekly mail.81.

Thank You Sir. 

DRT Solutions Weekly Mail - 80th Issue dated 13th November '09 

Respected Sir,

Pranaam. 

Sir, thanks for not getting lured by the heavy fees offered by the bankers and for refusing to be side tracked from your noble mission of helping the harried, tortured borrowers. 

Sir, I express my deep, sincere gratitude for refusing to change your mindset n helping the mighty bankers. SIr, I'm sure Almighty God shall compensate for the sacrifices you are making to uphold the cause of the borrowers. 

Sir, You are like "ANATHO KE NAATH". 

DRT Solutions Weekly Mail - 79th Issue dated 6th November '09 

Respected Sir,

Saadar Pranaam. 

Thank You Sir, for the inspiring Weekly Mail.

Sir, You are an Angel, A "Farishtha" sent by the almighty God to protect and guide the weak and ignorant

Sir, May God bless you with "Health, Wealth & Happiness" 

DRT Solutions Weekly Mail - 78th Issue dated 30th October '09 

Respected Sir, 

Sir, Your weekly mail reached my inbox as early as 6:30 AM, Today, speaking volumes about your kind care and concern for the subscribers who await your weekly mail  with total dedication.

May I salute You Sir, for your rare commitment to the Cause and express my deep gratitude to You Sir. 

DRT Solutions Weekly Mail - 76th Issue dated 16th October '09 

Respected Sir,

Saadar Pranam. 

WIsh You Sir, A HAPPY DEEPAVALI... 

May God Bless You Sir, with all energy enthusiasm to continue your noble work Sir. 

Sir, You are bringing light, hope and courage in the lives of millions who are victims of the skewed system of "Might is Right"!!! 

May I express my deep gratitude to You Sir for giving me a Second Life. 

Looking forward Sir to formation of a "Indian Borrowers Association" (IBA) to safeguard the common man from the "Might is Right" system which is being so systematically propagated. 

Sir, We are always with You!!! 

We adore You, Admire You n Love You Sir. 

DRT Solutions Weekly Mail - 69th Issue dated 28th August '09 

Respected Sir,

Pranaams. 

Sir, Your response to Mr. Antony's article is most appropriate Sir. 

Sir, thanks for taking up the cause of the borrowers, at a time when the entire

system is against them. 

Sir You inspire me to remain positive and fight back the evil designs of the bankers. 

Thanks A Million Sir.

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DRT Solutions Weekly Mail – 86th Issue dated 25th December ’09

(1) Right to file reply to the OA Dismissal Application closed:-

One of our clients from Hyderabad facing recovery action in DRT Delhi filed an application at our instance. Since the reply was not submitted by the financial institution, the PO DRT Delhi allowed 7 days time, failing which the right to file reply will be automatically closed. Since on 21st instt. the reply was not filed, the right to file reply was closed and the next date has been fixed as 15.02.10 for arguments on the said OA Dismissal Application.

We have advised the client to file the counter-claim on the said date of 15.02.10. This with a view to safeguard the situation that if the OA is dismissed, the counter-claim can not be filed. On the other hand, if the counter-claim is filed before dismissal of the OA, the said counter-claim will continue even if the OA is dismissed subsequently.

 (2) Huge amount of counter-claims prepared by us are questioned by some of our clients and or visitors to our web site:-

Many of our clients and visitors of our web site wonder over the huge amount of counter-claim prepared by us. On this topic recently we have sent a reply mail to one of clients reproduced below:-

“(1) Please find below extract reproduced from Pg. 141 of Vol I  6th Edition (2008) of  'Treatise on Law of Damages & Compensation' by C. Kameshwar Rao - Publisher 'Law Publishers (India) Pvt Ltd., Allahabad:-

"There is no particular limit to the amount of damages that can be awarded by a Court of law, and in proper cases the amount may rise to almost any sum of money - - -."

(2) The cited judgment is "Jugal Kishor Marwari vs Babu Homeshwar Singh, AIR 1922 Patna 79 at pg 84 (where a sum of Rs. 2 lac was awarded) 

(3) Rs. 2 lac of 1922 will become Rs. 1000 crores today.

(4) Court of law does not distinguish between the parties. Mr. Gopalakrishnan, an ex-Chairman of a Indian Bank was awarded jail term of 7 years and fine of Rs. 80 lacs. Even Mrs. Indira Gandhi, ex- PM was arrested. You may read my weekly mail 82nd issue which gives a SC Judgment on the attitude of Govt and statutory authorities (like banks) towards litigation. Time is not far when all the misdeeds committed by banks will come to light and huge damages will be awarded.”

(3) Pathetic story of a Bank Victim:-

Recently we have received a mail from one of the visitors of our web site reproduced below. The names and e-mail ID have been have been suppressed for sake of professional secrecy. Our reply is also reproduced. There are numerous such pathetic stories of the bank  victims. In fact under such recovery pressures, the farmers and many of the entrepreneurs are committing suicides or running away to unknown places. 

WHAT IS THE SOLUTION? IS LIFE OVER FOR US? 

Dear Sir, 

I had taken a loan of Rs 12 .87 lacs in year 1994 from corporation to start my factory. Due to certain circumstances which were not in my control I was unable to pay installments to the corporation. The said factory was repossessed in 1995 by the corporation and was under possession of the corporation till 2003.I paid Rs 1 lakh and took the possession of the factory in 2003 but to my surprise I found some parts of the machinery missing and also material of some other factory been dumped in my factory.

It was impossible to start the factory again as the experts told me that i will have to put lot of money to recondition it and I was not in the position to do so. I handed over the factory back to the corporation. 

In year 2006 the corporation has sold the land and building merely for Rs 4.98 lacs when they should have actually fetched closed to 50 lakhs, I told them that i have buyer who would give more than what you are selling but appeared that there was bad intentions of the officers in the transaction and they proceeded with the sale .The same property was valuated for RS 21 lacs in year 1997 by corporation valuator (land & bldg 7 lakhs & machinery 13.50 Lacs). 

Now I have received a letter from tribunal Mumbai and the corporation has put claim of RS 1.95 crores @ 19% interest. All valuables of my family including Flat, Plot, car & Gold has gone in the factory. My self nor my husband is having any income my age is 59 and my husband is 64 years. My husband is earning merely some nominal income at which we are trying to survive and are staying at our relation. 

There is nothing on our name and we have lost all property in more than last 10 years. 

I have been cheated by corporation they had told me verbally in 2006 that loan is closed and you do not have anything to worry and 3 - 6 years later they are trying to finish our life by putting this claim of 1.95 crores. 

I never wanted to be a defaulter but circumstances which were not under my control and unethical practice from corporation has put me in this situation. My one generation has gone by, in this pain we are suffering almost for 16 years. 

My husband is a guarantor for this project. We do not have single penny to pay nor property to sell. What will be the final verdict against us? will we have to face any legal laws for defaulting loan charged at 19% by the corporation because of our sincerity and honesty?

Please suggest is this the end of our life? At this age we have to start visiting Mumbai tribunal which is 700 kms away from my city. 

Thanking you in advance. 

Regards, 

Mrs. - - -

Our Reply 

Dear Mrs. - - - , 

(1) All our sufferings are due to some weaknesses. In your case, it is your legal ignorance. Most of the entrepreneurs are undergoing acute sufferings like this. Those who know or come to us right in the beginning, we advise for filing damages against the corporation/bank. In that eventuality no such sufferings would have taken place. 

(2) Anyway now first of all you should initiate proceedings to declare yourself and your husband insolvents. 

(3) In future, if you happen to have financial resources to fight legal battle, you may come to us for filing damages. 

(4) In one case, the entrepreneur at age of 75 after fighting a battle for 21 years, came to us. At our instance, he has filed the damages. His story was reported by us in our Weekly Mails. Whenever you find time, pl. read all our weekly mails vide link http://www.drtsolutions.com/weekly-news.htm 

(5) There is no end of life. Only there are changes, happenings, ups and downs. Biologically human body can live upto 400 years. There are more than 15,000 people in the world who are more than 100 years. 

(6) You must continue to fight against the evil forces as advised by Krishna in Gita.  

With best wishes,

Ram Kishan 

Our Further Comments 

(1)     In another case, once we got a mail from a Mumbai entrepreneur that he had no options but to commit suicide, We advised him to forget about litigation and concentrate on earning money. After an year he came to us filing damages against the bank. 

(2)     All the present problems in our Democratic way of life arise on account of lack of legal knowledge by the public. We study Geography, Social Sciences etc. but such subjects do not contribute to success or betterment of democracy. The first subject should be ‘Law’ right from primary level. By matriculation, all student must be taught Constitution, Civil and Criminal Procedure and important enactments. 

(3)     Judicial Reforms should be accorded topmost priority. A high level committee consisting of experts from Management, Technology and other disciplines must guide and accomplish  the said judicial reforms. 

(4)     The task is gigantic and difficult but at present there is no will or plan for any perceptible change. 

(5)     The competent business and industrial litigants in DRTs will be the catalyst for the required change as they alone can fight and survive a long drawn battle. 

(4) Merry Christmas & a very Happy & Prosperous New Year

We wish all our clients and visitors of our web site as well as their families  Merry Christmas and a very Happy and Prosperous New Year. 

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DRT Solutions Weekly Mail – 85th Issue dated 18th December ’09

 

(1) Useful Judgment of Supreme Court and its implication and application:-

In the judgment of Supreme Court (given below just after our comments), a very useful law has been laid downs vide extract from para no. 14 reproduced as under:-

14. In this connection we would like to say that there is a presumption in law that a Judge deals with all the points which have been pressed before him. It often happens that in a petition or appeal several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some of these points are pressed. Naturally a Judge will deal only with the points which are pressed before him in the arguments and it will be presumed that the appellant gave up the other points, otherwise he would have dealt with them also. If a point is not mentioned in the judgment of a Court, the presumption is that that point was never pressed before the learned Judge and it was given up. However, that is a rebuttable presumption. In case the petitioner contends that he had pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an application before the same learned Judge (or Bench) which delivered the impugned judgment, and if he satisfies the Judge (or Bench) that the other points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the concerned Court to pass appropriate orders, including an order of review. However, it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the Court below, has not been dealt with in the judgment of the Court below. The party who has this grievance must approach the same Court which passed the judgment, and urge that the other points were pressed but not dealt with.

Our Comments:-

(1)     All the important and material points must be specifically pressed before the Judge during the Oral Arguments.

(2)     The judge is required to deal with all those points with reasons in his judgment and order.

(3)     If any of the points has not been dealt with, we must submit an application under Sec. 151 of CPC or a Review Petition giving reference to this Supreme Court ruling requesting him to issue additional judgment and order.

(4)     The above process must continue till all the points have been covered fully.

(5)     The only lacuna with the present system is that there is no record of the oral arguments and hence it becomes very difficult to point out the deficiency. We propose to make audio record of the oral arguments and submit a CD containing the said oral arguments as well as transcript of the same. This is the practice in US Court Rooms. Even the Supreme Court is going to commence such recording.

(6)     Initially there may be problems and lot of efforts may be needed to introduce the above but there is no option.

IN THE SUPREME COURT OF INDIA 

Equivalent Citations: 2007 AIOL 1255 : 2007 Legal Eagle 1255 : 2007 (14) Scale 30 : 2008 (2) SCC 95 : 2007 (12) SCR 901 

Judges : A.K.Mathur : Markandey Katju 

Mohd. Akram Ansari

Versus

Chief Election Officer & Ors. 

Case No. : Civil Appeal No. 4981 of 2006 with Civil Appeal No. 5828 of 2006 

Date of Decision : 04-Dec-2007 

Advocates Appeared:

Balraj Dewan : Zafar Sadique : Goodwill Indeever : L.C.Goyal : Meenakshi Arora : Mohd.Akram Ansari : Mohd.Shahid : Mohd.Shajid : Naved Yar Khan 

HEADNOTE :

Wakf Act, 1995 -- Section 31-A -- (Delhi Amendment Act of 2006) -- Prevention of disqualification for membership of Legislative Assembly of National Capital Territory of Delhi -- Office of profit -- Offices of the Chairperson or Members of the Board constituted for Union Territory of Delhi shall not be disqualified and shall be deemed never to have been disqualified for being chosen as, or for being, a member of the Legislative Assembly of National Capital Territory of Delhi -- It is true that the Amendment Act 2006 does not specifically state that it is retrospective. However, the use of the words “and shall be deemed never to have been disqualified” in the above provision makes it clear that it is retrospective -- Appeals dismissed. 

STATUTES REFERRED:

     1. Wakf Act,1995,  S.31-A 

CASES REFERRED: 

1. Bhavnagar University v. Palitana Sugar Mill (P) Ltd., 2003(2) SCC 111 [Para 8] 

2. East End Dwelling Co. Ltd. v. Finsbury Borough Council, (1951) 2 All ER 587 [Para 7] 

3. Raja Shatrunjit (dead) by Lrs. v. Mohammad Azmat Azim Khan and others, AIR 1971 SC 1474 [Para 8] 

JUDGMENT/ORDER:  

JUDGMENT 

1. Heard learned counsel for the parties including the appellant appearing in person in C.A. No. 5828/2006. The appellant in C.A. No. 5828/2006 is also respondent No. 6 in C.A. No. 4981/2006. 

2. C.A. No. 4981/2006 is directed against the judgment and order dated 22.8.2006 passed by a learned Single Judge of the Delhi High Court in Election Petition No. 2/2004. C.A. No. 5828/2006 is directed against the judgment and order dated 22.8.2006 passed by the same learned Single Judge of the High Court in Election Petition No. 3/2004. The appellant in C.A. No. 5828/2006 (who was petitioner in Election Petition No. 3/2004) has stated before the High Court that Election Petitions No. 2 and 3 of 2004 were almost identical and hence no evidence was recorded in Election Petition No. 3/2004. 

3. The facts of the case are that the appellant contested the election to the Delhi Legislative Assembly in 2003 but lost. The respondent Haroon Yusuf was declared elected. At the time of the election Haroon Yusuf was also the Chairman of the Delhi Waqf Board. 

4. The question involved in both these appeals is whether the office of Chairperson or Members of the Walf Board is an office of profit so as to disqualify a person from being elected as a member of the Legislative Assembly of NCT of Delhi. It may be noted here that an amendment has been brought about in the Wakf Act, 1995 by way of The Wakf (Delhi Amendment) Act, 2006 (Delhi Act 3 of 2006) by inserting Section 31A in the 1995 Act. Section 31A of the Wakf Act, 1995 as amended by The Wakf (Delhi Amendment) Act, 2006 reads as under:- 

“31A. Prevention of disqualification for membership of Legislative Assembly of National Capital Territory of Delhi. It is hereby declared that the offices of the Chairperson or Members of the Board constituted for Union Territory of Delhi shall not be disqualified and shall be deemed never to have been disqualified for being chosen as, or for being, a member of the Legislative Assembly of National Capital Territory of Delhi.” 

5. The appellant, appearing in person, submitted that the aforesaid Section 31A came into force only in 2006, whereas the election was held in 2003, and the election petition was filed on 13.1.2004. He submitted that Section 31A is not retrospective and hence will have no application to elections held before 2006. We do not agree. 

6. It is true that the Amendment Act 2006 does not specifically state that it is retrospective. However, the use of the words “and shall be deemed never to have been disqualified” in the above provision makes it clear that it is retrospective. 

7. The words “and shall be deemed never to have been disqualified” in Section 31A creates a legal fiction. Legal fictions are well-known in law. In the oft-quoted passage of Lord Asquith in East End Dwelling Co. Ltd. v. Finsbury Borough Council, (1951) 2 All ER 587 it was observed: 

“If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs”. 

8. The aforesaid observation has been approved and followed by our own Supreme Court in a series of decisions e.g. Bhavnagar University v. Palitana Sugar Mill (P) Ltd. 2003(2) SCC 111 (para 33), Raja Shatrunjit (dead) by Lrs v. Mohammad Azmat Azim Khan and others AIR 1971 SC 1474 etc. 

9. Hence, even if the elected candidate was disqualified in the year 2003, he has to be deemed not to have been disqualified in view of Section 31-A which was inserted in the year 2006. 

10. In view of the above it is not necessary for us to go into the question as to whether de hors Section 31A the office of Chairperson of the Wakf Board can be said to be an office of profit. The aforesaid question has become academic now after the insertion of Section 31A. 

11. The appellant then submitted that apart from the point that the elected candidate Haroon Yusuf was holding an office of profit, the appellant had also raised a large number of other points in the election petition, including the allegation of corrupt practice by Haroon Yusuf, but these have not been dealt with by the High Court. He submitted that the High Court should have dealt with all the points mentioned in the election petition. 

12. We have carefully gone through the impugned judgment of the High Court and we find that the only point discussed therein is the point whether Haroof Yusuf was disqualified because he was holding an office of profit. No other point has been discussed in the aforesaid judgment. 

13. The appellant submitted that he had taken a large number of points in his election petition, but they have wrongly not been discussed in the impugned judgment. 

14. In this connection we would like to say that there is a presumption in law that a Judge deals with all the points which have been pressed before him. It often happens that in a petition or appeal several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some of these points are pressed. Naturally a Judge will deal only with the points which are pressed before him in the arguments and it will be presumed that the appellant gave up the other points, otherwise he would have dealt with them also. If a point is not mentioned in the judgment of a Court, the presumption is that that point was never pressed before the learned Judge and it was given up. However, that is a rebuttable presumption. In case the petitioner contends that he had pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an application before the same learned Judge (or Bench) which delivered the impugned judgment, and if he satisfies the Judge (or Bench) that the other points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the concerned Court to pass appropriate orders, including an order of review. However, it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the Court below, has not been dealt with in the judgment of the Court below. The party who has this grievance must approach the same Court which passed the judgment, and urge that the other points were pressed but not dealt with. 

15. Since no other point except the point of office of profit has been dealt with in the impugned judgment of the High Court, the presumption is that no other point was pressed before the High Court, even though the point may have been contained in the election petition. Hence we do not allow these points to be raised here. 

16. With the observations made above, the appeals are dismissed. No costs.

(2) Chief Justice of India says India needs 35,000 lower courts in place of present 14,000 courts. He further says that on account of delays, people could ‘Revolt’

Bangalore, Dec 12 (IANS) Chief Justice K.G. Balakrishnan said Saturday that the number of lower courts in the country should be 35,000 as against the present 14,000 so as to cut down delays in disposal of cases.

The legal system could crumble if the backlog of cases continued for long, he said at the inauguration of a meet on 'Alternative Dispute Resolution - Conciliation and Mediation' here.

It was organised by International Centre for Alternative Dispute Resolution, an autonomous body functioning under the central law ministry.

There was also urgent need to fill up vacancies in judiciary, Balakrishnan said.

Apprehending that people could 'revolt' against continuing delays in justice delivery, Balakrishnan, however, said that people still had faith in judiciary -- that they would get justice sooner or later.

But 'how long can they wait,' he asked.

Our Comments 

We created world class constitution and adopted it in 1950. Since we did not take any action to create world class courts, world class advocates and world class judges, it sowed the seeds of  discontent and hence revolution. The following are the clear signals:-

(1)     Farmers and borrowers are committing suicides.

(2)     Brides are being burnt, ladies are being molested  and culprits are scot free.

(3)     Corruption is at the peak. More than 30% Judges are corrupt. 90% of the lower staff in Judiciary is corrupt. The same Judiciary which decides corruption cases is unable to control corruption under its nose.

(4)     Chappals are thrown at the Judges of Supreme Court.

(5)     Judges are being beaten in open courts.

(6)     Bar Associations are boycotting the Judges.

(7)     Competent litigants are demanding Recording of the Oral Arguments and submitting the same by way of documents in form of CD and Transcript. They are further demanding complete trials, Hence the courts are getting flooded with massive documents and records by these litigants. 

Simply increasing the number of courts is no solution. It is just like increasing the bullock carts, the speed of transportation will not increase. You need modern vehicles like trucks and planes. Similarly in Judiciary you need modern management and technology. The experience and methodology in developed countries is available but we did not bother since 1950 and still we are not serious. The results will be:-

(1)     Helpless litigants have no option but to run away or commit suicides.

(2)     Litigants having financial muscle to buy the judicial officers by corrupt means.

(3)     Litigants with mind and financial power to fight endless battle which will result in tremendous pressure on Judiciary till leading judgments are achieved. Such judgments will be greatly useful for others.

(4)     The present process is highly painful. It is like a destructive solution.

(5)     Sensible process should be based on modern management and technology which will be like constructive solution.

(3) VERY SHORT, TRUE & MOST EFFECTIVE SPEECH – 30 second Speech by Bryan Dyson (CEO of Coca Cola) 

"Imagine life as a game in which you are juggling some 5 Balls in the air.   
You name them – Work, Family, Health, Friends and Spirit and you are keeping all these balls in  the air.
You will soon understand that Work is a Rubber Ball. If you drop it, it will bounce back.
But the other 4 Balls - Family, Health, Friends and Spirit are made of glass.  
If you drop any one of these, they will be irrevocably scuffed, marked,  nicked, damaged or even shattered.  
They will never be the same. You must understand that and strive for it”.

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DRT Solutions Weekly Mail – 84th Issue dated 11th December ’09

(1) Counter-claim in Securitisation Act:-

We have received several queries as to how to set up counter-claim in actions under Securitization Act. Our views are as under:-

(1)                 Counter-claim is a legal defence available to the defendant in a suit.

(2)                 The specific provision of counter-claim was made in CPC in 1976 even though counter-claims were setup prior to 1976.

(3)                 Similarly specific provision of counter-claim was made in DRT Act in 2000 even though counter-claims were setup prior to 2000.

(4)                 No such specific provision of counter-claim exists in Securitization Act. Hence the existing state is similar to that prior to 1976 in CPC or prior to 2000 in DRT Act.

(5)                 The Supreme Court in the matter of Mardia Chemicals has laid down the law that the Appeal under Sec. 17 of the Securitization Act is akin to a civil suit.

(6)                 If you apply these facts and principles to Securitization Act, you should claim  loss and damages in the Appeal under Sec. 17 of the Act.

(7)                 We have already introduced the above in few cases. In fact we incorporated the said loss and damages in the Representation and Objections under Sec. 3-A of the Act.

(8)                 The above loss and damages should not be confused with the compensation stipulated under Sec. 19 of the Act which is to be awarded only when the possession is not in accordance with the Act.

(2) WS need not be filed till the application for OA Dismissal is decided, however Counter-claim may be filed.

A peculiar situation has arisen in the DRT case pertaining to one of our clients at Mumbai. The matter relating to application for OA Dismissal is under adjudication with DRT, DRAT and High Court. The WS has not been filed on the plea that if the OA itself is dismissed, there will no need of the WS. In the meantime the counter-claim has been filed. The bank has been asked to submit WS of the said counter-claim.

Filing of the counter-claim is a safe guard for the situation when the OA is dismissed, one can not file the counter-claim but if counter-claim is filed and then OA is dismissed the counter-claim will continue.

(3) Right to Emergency Care

The Supreme Court in its judgment dated 23.02.07 in the matter of Civil Appeal 919 of 2007 has ruled that all injured persons especially in the case of road traffic accidents, assaults etc. when brought to a hospital/medical centre have to be offered first aid, stabilized and shifted to a higher centre/government centre if required. It is only after this that the hospital can demand payment or complete police formalities. In case you a bystander and wish to help someone in an accident, please go ahead and do so. Your responsibility ends as soon as you leave the person to the hospital.

The hospital bears the responsibility of informing the police, first aid etc.

Please inform your family and friends about these basic rights so that we all know what to expect and what to do in the hour of need.

(4) A Beautiful message from George Carlin – How True !!!!!!!!!!!!!!!

This is a master piece.  If you have not read it take the time to read it now.  If you have read it take time to read it again!  Isn't it amazing that George Carlin - comedian of the 70's and 80's - could write something so very eloquent...and so very appropriate. 

 A Message by George Carlin: 

The paradox of our time in history is that we have taller buildings but shorter tempers, wider Freeways 
, but narrower viewpoints. We spend more, but have less, we buy more, but enjoy less. We have bigger houses and smaller families, more conveniences, but less time. We have more degrees but less sense, more knowledge, but less judgment, more experts, yet more problems, more medicine, but less wellness. 

We drink too much, smoke too much, spend too recklessly, laugh too little, drive too fast, get too angry, stay up too late, get up too tired, read too little, watch TV too much, and pray too seldom. 

We have multiplied our possessions, but reduced our values. We talk too much, love too seldom, and hate too often. 

We've learned how to make a living, but not a life. We've added years to life not life to years. We've been all the way to the moon and back, but have trouble crossing the street to meet a new neighbor. We conquered outer space but not inner space. We've done larger things, but not better things. 

We've cleaned up the air, but polluted the soul. We've conquered the atom, but not our prejudice. We write more, but learn less. We plan more, but accomplish less. We've learned to rush, but not to wait. We build more computers to hold more information, to produce more copies than ever, but we communicate less and less. 

These are the times of fast foods and slow digestion, big men and small character, steep profits and shallow relationships. These are the days of two incomes but more divorce, fancier houses, but broken homes. These are days of quick trips, disposable diapers, throwaway morality, one night stands, overweight bodies, and pills that do everything from cheer, to quiet, to kill. It is a time when there is much in the showroom window and nothing in the stockroom. A time when technology can bring this letter to you, and a time when you can choose either to share this insight, or to just hit delete... 

Remember; spend some time with your loved ones, because they are not going to be around forever. 

Remember , say a kind word to someone who looks up to you in awe, because that little person soon will grow up and leave your side. 

Remember , to give a warm hug to the one next to you, because that is the only treasure you can give with your heart and it doesn't cost a cent. 

Remember , to say, 'I love you' to your partner and your loved ones, but most of all mean it. An embrace will mend hurt when it comes from deep inside of you. 

Remember  to hold hands and cherish the moment for someday that person will not be there again. 

Give time to love, give time to speak! And give time to share the precious thoughts in your mind. 


And Always Remember: 

Life is not measured by the number of breaths we take, but by the moments that take our breath away. 

George Carlin

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DRT Solutions Weekly Mail – 83rd Issue dated 4th December ’09

(1) Supreme Court criticizes Govt. & public sector bodies for unnecessary litigations against public instead of admitting mistakes and settling the matter. Banks are also doing the same thing:-

In the following important judgment, the Supreme Court has criticized the legal officials of Govt. and public sector bodies, who indulge in unnecessary litigations even upto the highest court of the country. They are fighting against the public using the money of the public.  

2009 STPL(Web) 177 SC

SUPREME COURT OF INDIA

(R. V. RAVEENDRAN & G. S. SINGHVI, JJ.)  

URBAN IMPROVEMENT TRUST, BIKANER

Petitioner

VERSUS

MOHAN LAL

Respondent

Special Leave Petition (C) 29852 of 2009 (CC No.11768)-Decided on 30-10-2009.

Consumer – Housing – Road laid on allotted plot

ORDER

R. V. Raveendran, J.-The petitioner before us is the Bikaner Urban Improvement Trust. It allotted a Plot (A-303) measuring 450 sq.ft. under its Karni Nagar Scheme to the respondent in the year 1991. Respondent paid the allotment price (lease premium) of Rs.3,443/- in 1992 and took possession in 1997. In the year 1998, the petitioner-Trust allotted to respondents and delivered possession of the adjacent strip measuring 150 ft.

2. Thereafter, the Trust without notice to the respondent and without resorting to any acquisition proceedings, laid a road in the said plot. The layout map prepared and made available by the Trust in the year 2002 did not show the existence of Plot A-303 or its adjoining strip. Feeling aggrieved, the respondent met the officers of the Trust and complained to them. He also gave a written complaint seeking restoration of the plot. As there was no response, he approached the District Consumer Forum in 2005, praying for restoration of the plot or for allotment of an alternative site and award of damages of Rs.200,000/-. The District Forum disposed of the complaint directing refund of the allotment price paid with interest at 9% per annum. The State Commission allowed the appeal filed by the respondent and directed allotment of an alternative plot and also awarded Rs.5,000/- as compensation. The National Commission dismissed the revision petition filed by the petitioner Trust. Special leave is sought to challenge the said order of the National Commission.

3. The Trust does not dispute any of the facts. It has no explanation to offer for its negligence or highhanded action of taking over the allotted plot without notice, acquisition, or consent. Nevertheless, the Trust challenges the relief granted, on three technical grounds:

(i) As the respondent was negligent in protecting his possession and did not protest or complain when the Trust laid the road in his plot, he is not entitled to any relief.

(ii) The action of the Trust, even if it was an illegal encroachment, did not amount to `deficiency in service' and therefore the respondent could not invoke the jurisdiction of the forum under the Consumer Protection Act, 1986.

(iii) The complaint was barred by limitation as it was filed beyond two years from the occurrence of the cause of action, and the respondent did not show sufficient cause for condonation of delay.

These contentions have been rejected. The decision of the State Commission rejecting the above contentions is just and reasonable. The National Commission was justified in not interfering with the said decision. We are satisfied that no case is made out to grant special leave under Article 136 of the Constitution.

4. It is a matter of concern that such frivolous and unjust litigation by governments and statutory authorities are on the increase. Statutory Authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They can not behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected.

5. This Court has repeatedly expressed the view that the governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf.

5.1. In Dilbagh Rai Jarry vs. Union of India [1973 (3) SCC 554] where this Court extracted with approval, the following statement (from an earlier decision of the Kerala High Court):

"The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The lay-out on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic show-downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.

5.2. In Madras Port Trust v. Hymanshu International by its Proprietor v. Venkatadri (Dead) by L.Rs. [(1979) 4 SCC 176] held:

"2... It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable...."

5.3. In a three Judge Bench judgment of Bhag Singh & Ors. v. Union Territory of Chandigarh through LAC, Chandigarh [(1985) 3 SCC 737]:

"3... The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen."

6. Unwarranted litigation by governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They are:

(i) All claims against the government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest court of the land.

(ii) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secures a decision.

The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of the governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers in charge of litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of improper motives for any decision making. Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision making to courts and Tribunals. The Central Government is now attempting to deal with this issue by formulating realistic and practical norms for defending cases filed against the government and for filing appeals and revisions against adverse decisions, thereby, eliminating unnecessary litigation. But, it is not sufficient if the Central Government alone undertakes such an exercise. The State Governments and the statutory authorities, who have more litigations than the Central Government, should also make genuine efforts to eliminate unnecessary litigation. Vexatious and unnecessary litigation have been clogging the wheels of justice, for too long making it difficult for courts and Tribunals to provide easy and speedy access to justice to bona fide and needy litigants.

7. In this case, what is granted by the State Commission is the minimum relief in the facts and circumstances, that is to direct allotment of an alternative plot with a nominal compensation of Rs.5000/- But instead of remedying the wrong, by complying with the decision of the Consumer fora, the Improvement Trust is trying to brazen out its illegal act by contending that the allottee should have been protested when it illegally laid the road in his plot. It has persisted with its unreasonable and unjust stand by indulging in unnecessary litigation by approaching the National Commission and then this Court. The Trust should sensitise its officers to serve the public rather than justify their dictatorial acts. It should avoid such an unnecessary litigation.

8. Delay condoned. The special leave petition is dismissed.  

Our Comments 

(1) On one hand, the Govt is not enhancing the strength of the judges, it is loading the judicial system being the biggest litigant with more than 70% share.

(2) The bureaucracy of the Govt. is inherently against the judicial supremacy and it continues to ape the British Legacy resulting into biggest hurdle in ushering in the Rule of Law in place of Rule by Persons. Now it is fight of Public vs Public Servants. The above ruling of the Supreme Court has confirmed the same.

(3) On account of the said attitude of the bureaucracy in banks, we have been advising to use the only and ultimate tool of effective defence i.e. damages or counter-claim. It is well known that on account of bureaucratic attitude as illustrated by the Supreme Court, such litigations will take long time needing adequate resources and hence we advise our clients to have sustained  earnings otherwise such battle can not be fought.

(4) As emphasized the most important part of the bank litigations is the pleadings & trial in DRT. Both require sufficient knowledge and experience. We are not against the young DRT lawyers but they lack the required experience and knowledge. That is the reason why we have been emphasizing empowerment of the litigants and employment of senior trial lawyers. It is all the more important on account of the attitude of the bank bureaucracy  as illustrated by the observations of the Supreme Court in the above judgment. 

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DRT Solutions Weekly Mail – 82nd Issue dated 27th November ’09

(1) Supreme Court on attitude of Govt. and statutory authorities like Bankers towards litigation:-

(A) The Supreme Court vide citation 1974 AIR(SC) 130 Dilbagh Rai Jarry vs Union of India, decided on 05.11.73 described the attitude of Govt. and statutory authorities like bankers as under:- 

“KRISHNA IYER, J.:— 

 25.  - - - - - I feel impelled to make a few observations not on the merits but on governmental disposition to litigation, the present case being symptomatic of a serious deficiency. In this country the State is the largest litigant to-day and the huge expenditure involved makes a big draft on the public exchequer. In the context of expanding dimensions of State activity and responsibility, is it unfair to expect finer sense and sensibility in its litigation policy, the absence of which, in the present case, has led the Railway callously and cantankerously to resist an action by its own employee a small man, by urging a mere technical plea which has been pursued right up to the summit court here and has been negatived in the judgment just pronounced. Instances of this type are legion as is evidenced by the fact that the Law Commission of India in a recent report* (54th ) on amendments to the Civil Procedure Code has suggested the deletion of S. 80, finding that wholesome provision hardly ever utilized by Government, and has gone further to provide a special procedure for government litigation to highlight the need for an activist policy of just settlement of claims where the State is a party. It is not right for a welfare State like ours to be Janus-faced, and while formulating the humanist project of legal aid to the poor, contest the claims of poor employees under it pleading limitation and the like. That the tendency is chronic flows from certain observations I had made in a Kerala High Court decision, P. P. Abubacker v. Union of India, AIR 1972 Ker 103, 107: para 5 which I may usefully excerpt here:

"The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for, the State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The lay-out on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic show-down where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957. This second appeal strikes me as an instance of disregard of that policy."

26. All these words from the Bench, hopefully addressed to a responsive Government, may, if seasonable reactions follow, go a long way to avoidance of governmental litigiousness and affirmance of the image of the State as deeply concerned only in justice - Social Justice. The pyrrhic victory of the poor appellant in this case is a sad justification for the above observations.”

(B) The Supreme Court in another case vide citation 1979 AIR(SC) 1144 Madras Port Trust vs Hymanshu International decided on 03.01.79 echoed similar observations as under:- 

“BHAGVATI, J.:—

“2. We do not think that this is a fit case where we should proceed to determine whether the claim of the respondent was barred by S. 110 of the Madras Port Trust Act (II of 1905). The plea of limitation based on this section is one which the court always looks upon with disfavor and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable. Here, it is obvious that the claim of the respondent was a just claim supported as it was by the recommendation of the Assistant Collector of Customs and hence in the exercise of our discretion under Art. 136 of the Constitution, we do not see any reason why we should proceed to hear this appeal and adjudicate upon the plea of the appellant based on S. 110 of the Madras Port Trust Act (II of 1905)” 

(C) Two more judgments have been delivered by the Supreme Court during the week prior to 18th instt. where the Supreme Court has severely criticized the Govt. and statutory authorities like banks towards litigation. As soon as we locate the said judgments, we shall cover the same in our weekly mails.

(2) Globally we are No. 1 in Ranking of our web site for ‘DRT’, ‘DRT related phrases’ and even ‘Weekly Mails’ in all major search engines:-

We are glad to announce that globally we are No. 1 in ranking of our web site for ‘DRT’, ‘DRT related phrases’ in all major search engines like Google and Yahoo. Even ‘Weekly Mails’ is No. 1 in Yahoo. The following are the search results as on 26.11.09 :-

(A)   Yahoo – drtsolutions.com No 1 in 1,45,00,000 results for DRT.

(B)    Google - drtsolutions.com No 1 in 7,41,000 results for DRT.

(C)    Yahoo - drtsolutions.com No 1 in 7,32,00,000 results for Weekly Mails.

(D)    In these search engines, if you search phrases like DRT Cases, DRT Advocates, DRT Counter-claim etc., drtsolutions.com is No. 1.

On account of such No 1 ranking, we have huge response from and interactions with borrowers and guarantors, as a result of which our high ranking is continuously maintained.

It is interesting to note that the word DRT has several meanings few of which are :-

(1) Diploma In Robotics Training, (2) Digital Receiver Technology, (3) Digital Reality Trust, (4) Durham Region Transit, (5) Diamond Racing Team, (5) Daughters of Republic of Texas, (6) Desert Rose Temari, (7) Demand Responsive Transport, (8) Discourse Representation Theory, (9) Dona Remedios Trinidad, (10) Do the Right Thing,  (11) Development Research & Training, (12) Driving Resolution Together, (13) Deviation Ratio Topography, (14) Del Rio TX, (15) Diamond Racing Team, (16) Dynamic Research Technologies, (17) Derives Resiniques et Terpeniques, (18) Dispute Resolution Hotline, (19) Document Related Technologies, (20) Disaster Response Team, (21) Dead Right There etc. These bodies have got their web sites well designed and are in existence for several years. Despite all these we occupy the highest ranking as may be seen from above results.  

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DRT Solutions Weekly Mail – 81st Issue dated 20th November ’09

(1) Indore High Court Bar Association decides that the members will not appear before Justice Sapre and demanded his transfer from Indore:-

In the General Body meeting held on 18th Nov. ’09, the Indore Bar Association decided that the members will not appear before Justice Sapre and demanded his transfer from Indore. This was on account of rough and rude behaviour  of Justice Sapre. Copy of the resolution was sent to Chief Justice, Supreme Court of India, High Court Jabalpur as well as the Govt.

Our Comments:-

(1) The Judges are under heavy pressure to dispose off the cases quickly. There are disposal norms. On one hand our globally best Constitution has laid down highest norms for awarding justice which requires sufficient time, the said disposal norms do not provide any time for thorough study. Thus the Judges are caught in a very difficult situation.

(2)  The statutory authorities like banks with their massive legal machinery are able to get Special Courts like DRTs and special conditional legislation like DRT Act and Securititsation Act which mention time limit of 6 months for complete adjudication of a complicated civil suit involving complex matters of banking, industry and finance, which in civil courts with existing system of working requires 15 to 20 years.

(3) If you desire to aim at achieving a job needing 20 years to be done in 6 months, either it will not be done or it will be of rejected quality. The first victim will be the borrower litigant. If such litigant can survive and fight, the next victim will be the Judge.

(4) On account of above ground realities, there are instances of public outbursts such as throwing of chappals in Supreme Court, beating of judge by the advocates in open court in UP, strike by the advocates in DRT Jabalpur, pressure situation created in DRT Madurai and Bangalore and now virtual boycotting of High Court Judge in High Court Indore.

(5) The litigant discontent is so much that weakest borrowers like farmers are committing suicide.

(6) In the name of Judicial System, we have not done anything except formulating the Constitution, an activity requiring reading, writing and discussions leading to world best constitution. Such Constitution requires world best courts, world best advocates and world best Judges for which we have not done anything. As a result there is going to be virtual blood bath in the courts.

(7) Swaran Lata (AIR 1969 Supreme Court 1167) had a serious warning signal but nobody paid any serious attention to the same even till today.

(8) Eminent Justice Krishna Iyer wrote in 1988 that we are 200 years behind but no body bothers to initiate any worthwhile efforts till today.

(9) The only silver lining is that by creating the special courts like DRTs and by pressurizing the competent litigants like businessmen and industrial entrepreneurs, the whole system is going to get such a jolt which will compel a long overdue massive surgery. The pains will be intense but there are no options. 

(10) We advise the competent litigants to stand like a rock at every stage of litigation so that no injustice is tolerated and the case is not allowed to proceed till the said element of injustice is removed. The tools are trials as per the law and procedure of law like reviews, change in courts, cross-examination etc. All these will require lot of time. Hence these are to be backed by counter-claim or damage suit so that cost of time delay is safeguarded by the element of interest. One should not move to higher courts till justice is achieved in trial courts. No compromise or no sparing of anyone who breaches law and procedure of law.

(11) The fight is difficult, long drawn and expensive but those who can do will bring some leading judgments which will benefit all others.

(2) Supreme Court criticizes anti-public attitudes of the law deptts of Govt. and Statutory Authorities (like Banks):-

Mr. M.J. Antony of ‘Business Standard vide his article published in the 18th Nov. issue has voiced the ground realities vide extract as under:-

“It is well known that the government is the largest litigant in the courts. It is less known that it starves the judiciary of funds. It is even less known that it chokes the courts with unnecessary suits. The last one frequently invites drubbing from the Supreme Court.

Two judgments delivered last week analyse the psychology of bureaucrats in the legal departments. They follow the following guidelines, according to the apex court:

·  All claims against the government/statutory authorities should be viewed as illegal and be resisted and fought up to the highest court of the land.  

·  If taking a decision on an issue could be avoided, it is prudent not to decide the issue and let the aggrieved party approach the court and secure a decision.

Though these seem like Murphy’s law or Catch-22, we must accept them as they come from the highest court of the land. The two judgments amply prove how the government takes “frivolous and unjust” causes up to the apex court, no matter whether it wins or loses.

Our Comments:-

In the above article, Mr. Antony has made a reference to even earlier Supreme Court Judgments viz. 1973, in the Dilbagh Rai vs Union of India case and 1979 Madras Port Trust vs Hymanshu International. We shall study these judgments and cover the same in future weekly mails.  

(3) FOUR THINGS YOU PROBABLY NEVER KNEW YOUR MOBILE PHONE COULD DO

There are a few things that can be done in times of grave emergencies. Your mobile phone can actually be a life saver or an emergency tool for survival.
Check out the things that you can do with it:


FIRST 
Emergency

The  Emergency Number worldwide for Mobile is 112.

If you find yourself out of the coverage area of your mobile; network and there is an emergency, dial 112 
and the mobile will search any existing network to establish the emergency number for you, and interestingly this number 112 can be dialled even if the keypad is locked. Try it out.


SECOND 
Have you locked your keys in the car?

Does your car have remote keyless entry? This may come in handy someday. Good reason to own a cell phone:

If you  lock your keys in the car and the spare keys are at home, call someone at home on their mobile phone from your cell phone.
Hold your cell phone about a foot from your car door and have the person at your home press the unlock
button, holding it near the mobile phone on their end.

Your car will unlock. Saves someone from having to drive your keys to you. Distance is no object. You could be hundreds of miles away, and if you can reach someone who has the other 'remote' for your car, you can unlock the doors (or the trunk).

Editor's  Note: It works fine! We tried it out and it unlocked our car over a mobile phone!'

THIRD 
Hidden Battery Power

Imagine your mobile battery is very low. To activate, press the keys *3370# Your mobile will restart with this reserve and the instrument will show a 50% increase in battery. This reserve will get charged when you charge your mobile next time.


FOURTH 
How to disable a STOLEN mobile phone?

To check your Mobile phone's serial number, key in the following digits on your phone: * # 0 6 #
A 15 digit code will appear on the screen. This number is unique to your handset. Write it down and keep it somewhere safe. When your phone get stolen, you can phone your service provider and give them this
code. They will then be able to block your handset so even if the thief changes the SIM card, your phone will be totally useless.

You probably won't get your phone back,

but at least you know that whoever stole it can't use/sell it either. If
everybody does this, there would be no point in people stealing mobile phones.
  

ALSO ATM'S

PIN Number Reversal - Good to Know
If you should ever be forced by a robber to withdraw money from an ATM machine, you can notify the police by entering your PIN # in reverse.

For eg, if your pin number is 1234,

then you would put in 4321.

The ATM system recognizes that your PIN number is backwards from the ATM card you placed in the machine. The machine will still give you the money you requested, but unknown to the robber, the police will be immediately dispatched to the location.
This information was recently broadcast on CTV by Crime Stoppers however it is seldom used because people just don't know about it.

Please pass this along to everyone.

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 ill 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 mailed to borrowers, guarantors and their advocates in the country. We are getting huge no of mails appreciating our weekly mails.  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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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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