DRT  Legal  Solutions

(Debts Recovery Tribunal Legal Solutions) is an India based

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

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

Phones (India) - Mobile - +91-9691103689, Off. & Res. +91-731-4049358

E-mail :- ramkishandrt@gmail.com  Web Site :- www.drtsolutions.com

 Weekly Mail - 91-100 - DRT Legal Solutions

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DRT Solutions Weekly Mail – 100th Issue (Centenary Issue) dated 9th April ’10

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

 

(1) Feedback Mails on this Centenary Issue

On the occasion of this Centenary Issue, we are overwhelmed by the tremendous response from some of our clients, recipients of the Weekly Mails and visitors of our web site. They have conveyed their good wishes on the occasion. Extracts from some of the mails received are given below:-

B.S. Malik, Advocate, Supreme Court of India in his mail dated 09.04.2010 wrote as under:-

My dear Ram Kishan

I personally feel you are proving to be a the path finder to plough the virgin field of industrial finance and exposing the modus operandi of  lending bankers for extortion of ignorant honest borrowers who look to drt weekly mails for instant solutions to their problems created by crafty banker.

I congratulate for your tremendous  efforts and research done by you in this subject please carry on

U.C.DESAI, Retired Banker, Author & Advisor in his mail dated 08.04.2010 wrote as under:-

 Dear Ram Kishanji,

Being a layman my words of appreciating your noble work for many innocent borrowers and guarantors of NPA trapped in stern recovery actions under pretext of provisions of various acts will not be enough . You are 'AVTAR ' of great 'ATMA' and definitely will get blessings of large numbers benefited by your this noblest work. I too pray for long healthy life for you to continue such service and that too FREE , when for each small advice people are mostly commercial in today's world of KALIYUG.

Dr. K.V. Kaliappan Velusami, Psychologist in his mail dated 08.04.10 wrote as under:-

Dear MR. RAM KISHAN,

Getting to know of your mission is a fotune of my life. I am an Applied Psychologist for the past 40 years, have guided thousands in Stress but I value your group's guidance more valuable. I was totally ignorant in legal knowledge but you have enlightened me. Your group is the best in India. I and my family wish you many more years of SERVICE TO HUMANITY.

Mahesh Kabra Advocate and Author of a Book on DRT & Securitisation Act in his mail dated 05.04.10 wrote as under:-

Respected Ram Kishanji

Congrats ! for the coming 100th issue weekly mail. Thanks for all communications & information by weekly mail.

These mails can provide lot of information & law updates relating to DRT matters and especially HOW TO DEFEND BANK SUITS ?

It appears from compilation of all the mails that you have taken lot of efforts - life time efforts to make it available to public.

Your mission to improve quality of JUDIS SYSTEM is also on well footings.

Pravir K. Roy in his mail dated 04.04.10 wrote as under:-

DRT Solutions is an exemplary service to thousands of borrowers suffering misconduct and malice of financial institutions. You have helped in educating the borrowers to recognize it and empower their right of defense.  Which as it is humungous with the set minds of the society and courts -  “ you have taken money better return it” without looking at the creditor’s obligations and conduct. You have helped in seeing the other side ! Congratulations!!

Lakshmi Narayan Kothamasu in his mail dated 04.04.10 wrote as under:-

Under drt solutions you are providing vast information which certainly enriches one's knowledge thereby enhancing the ability to face related problems boldly. This was felt and experienced by one and all as can be seen from the various experiences posted to u. Naturally i cannot be an exception. In my opinion u are doing great service to many who are distressed   in the hands of lending banks etc. 

Rajendra Kookada, Advocate, Bombay High Court in his mail dated 03.04.10 wrote as under:-

Dear Sir,

I am very much happy to see your emails with regards to DRT matters and that are very useful in practice.

I think that the knowledge of DRT matters and understanding of the same are increased by using your emails. I will definitely meet you as and when I visit Indore.

Firoz Poonawalla, Industrialist, Pune in his mail dated 03.04.10 wrote as under:-

Our Dear Mr. Ram Kishan,

I congratulate you on the centenary issue of your very useful " DRT SOLUTIONS". I in particular have benefited tremendously from the guidelines you are so kindly providing. When the bank had falsely slapped a case of "WILLFUL DEFAULTERS"on us we as a family were devastated. It was at this time I came in contact with you. You started sending me the DRT SOLUTIONS. First I was not even in a mood to read as I was totally depressed. Then slowly I started reading your advice. Now I am confident and ready to stand for my rights. I put up a counter claim on reading " DRT SOLUTIONS".Bank continous to use pressure tactics to put fear of character assassination in the society we live in.But My hope is great that justice will prevail.

I am ever grateful to you for this timely support. God bless you. God bless the great socially good work you have undertaken.

Our Comments

We are highly thankful to Mr. Firoz Poonawalla who is sending lot of inspiring mails out of which sometimes we publish some of them in our Weekly Mails. 

Sanjeev Agarwal. Industrialist, Mumbai in his mail dated 03.04.10 wrote as under:-

Dear Ramkishanji,

We wish you all our best wishes for 100th issue of your weekly mails which you send to the People who are facing the DRT problems,

We have gained lot of knowledge through your mails which has given us lot of help in our OA as well as SA which is filed against us by Bank.

The knowledge and the confidence which have been given to us has helped in our case in a very commendable position against the bank and we feel you should continue the same so that more and more people of the Industry can get the benefit as the Lawyers who are available are also not having proper knowledge in DRT matters.

R. B. Sharma, Advocate, Raipur in his mail dated 02.04.2010 wrote as under:-

Respected Sri Ram Kishanji,

You have been rendering yeoman's service to the judicial fraternity and your weekly mails are really provoking one to expand, explore and excel. I personally feel enriched by your deliberations therein.

So far the 100th issue of the mail is concerned I expect it to be an issue par excellence. Please touch upon the issues like the Code of Bank's Commitment to Micro and Small Enterprises, CGTSI, contingent liabilities like Bank Guarantees - NPA provisions and application there into of recovery proceedings under DRT & SARFAESI Acts.

I wish you every success in your efforts towards enrichment and enlightenment.

Our Comments

We have included the above topics for our research and if possible inclusion in the forthcoming DRT Conference in December ’10.

U.C.DESAI, Retired Banker in his mail dated 02.04.2010 wrote as under:-

Dear Shri Ram Kishanji,

With interest ,I am reading your all emails on DRT solution etc including the recent ,one, 99th of Dt.2-4-2010 i.e. today. Next email of  Dt.9-4-2010  will score 100 :a century ! congratulation for your noble service by which millions of persons interested in the subject are benefited , which includes undersigned too.

Sir, I have one doubt in the subject. You might be aware that when bank finance a S.S.I. unit , they cover credit facility under DICGCI Scheme and by debiting premium to party's account , pay to that corporation .

Similarly while financing export finance , they cover the advance , credit facility like Packing Credit , F.B.P. Etc.under E.C.G.C.Scheme and in that case too the premium paid to ECGC are debited to borrower's account.

In both above type of accounts , when the account turn NPA / DEFAULTED , the bank invoke the guarantee with the respective corporation and as per the schemes their claim is passed and bank get the amount.

Further besides above guarantee cover , bank also are taking third party guarantee and many times get secured by Equitable Mortgage of their guarantors. And banks also make recovery from such guarantors.

My doubt / question is ; CAN BANK RECOVER THEIR DUES FROM TWO SOURCES OF GUARANTEE COVER MENTIONED ABOVE ? WHEN THE PREMIUM PAID TO THE CORPORATIONS ARE FROM PARTY'S ACCOUNT , WHO HAS LEGAL RIGHT ON THE AMOUNT RECEIVED BY INVOKING THE GUARANTEE ?

Suggestion is also made to cover this topic in ensuing INDORE SEMINAR IN DECEMBER 2010 ALSO.

Our Comments

We have included the above topic for our research and if possible inclusion in the forthcoming DRT Conference in December ’10.

(2) Meaning of ‘DRT’ and Ranking of our Web Site

The word ‘DRT’ has several meanings. Some of them are listed in the following list in the following list. Many of them are huge organization having decades of operations. All of them have their own web sites. But if you search in major search engines like ‘Google’, ‘Yahoo’, our web site www.drtsolutions.com is ranked no. 1 globally as may be seen from the following results for the word ‘drt’:-

(a)    No. 1 in 1,31,00,000 results in Yahoo

(b)    No. 1 in 27,30,000 results in Google

(1)   Diploma In Robotics Training  ;  

(2)   Digital Receiver Technology ;  

(3)   Digital Realty Trust ; 

(4)    Durham Region Transit’;  

(5)   Diamond Racing Team; 

(6)   Daughters of Republic of Texas; 

(7)   Desert Rose Temari; 

(8)   Demand Responsive Transport; 

(9)   Discourse Representation Theory;

(10) Dona Remedios Trinidad; 

(11) Do the Right Thing;  

(12) Development Research & Training;

(13) Driving Resolution Together; 

(14) Deviation Ratio Topography;

(15) Del Rio TX; 

(16) Diamond Racing Team; 

(17) Dynamic Research Technologies; 

(18) Derives Resiniques et Terpeniques;

(19) Dispute Resolution Hotline; 

(20) Document Related Technologies; 

(21) Disaster Response Team; 

(22) Dead Right There; 

(23) Debts Recovery Tribunal

(3) Our Weekly Mails in form of a Printed Book:-

As informed we have received huge demand for a printed version of our weekly mails. Hence it has been decided to bring about a book with comprehensive commentary, good index along with a CD for easy search. We have started receiving enquiry and suggestions from the readers of our weekly mails as well as from the visitors of our web site.

(4) Proposed DRT Conference at Indore on 25th and 26th Dec. 2010:-

We have started receiving lot of queries on the said Conference. We are trying our best to chalk out the program in such a manner so that the Conference is proved to be a real source of practical knowledge to the litigant borrowers, guarantors and their advocates. Your queries, suggestions and publicity about the said Conference will a great help to the cause of hapless bank victims.

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DRT Solutions Weekly Mail – 99th Issue dated 2nd April ’10

(1) Supreme Court of India faces extreme overload – over 70000 cases filed in 2009 only,

Compare with US Supreme Courts which hears only 100 to 120 cases per year

20th March 26, 2010 New Delhi

The Supreme Court, while deciding to examine the scope of Article 136 of the Constitution, said it was like Article 226 (writ jurisdiction of High Courts) was a discretionary remedy and the Supreme Court was not bound to interfere even if there was an error of law or fact in the order under challenge.

A Bench consisting of Justices Markandey Katju and R.M. Lodha, quoting various judgments, pointed out that Article 136 was never meant to be an ordinary forum of appeal at all. “It has become a practice of filing SLPs against all kinds of orders of the High Court or other authorities without realising the scope of Article 136.”

Exceptional circumstances

The Bench said: “The very conferment of the discretionary power defies any attempt at exhaustive definition of such power. The power is permitted to be invoked not in a routine fashion but in very exceptional circumstances as [and] when a question of law of general public importance arises or a decision sought to be impugned before the Supreme Court shocks the conscience. The Supreme Court would not under Article 136 constitute itself into a tribunal or court just settling disputes and reduce itself to a mere court of error.”

Limited time

The judges said: “After all, the Supreme Court has limited time at its disposal and it cannot be expected to hear every kind of dispute. The apex court lays down the law for the whole country and it should have more time to deliberate upon the cases it hears before rendering judgment as Mr. Justice Frankfurter observed. However, sadly the position today is that it is under such pressure because of the immense volume of cases in the court that judges do not get sufficient time to deliberate over the cases, which they deserve, and this is bound to affect the quality of our judgments.” Let notice be issued to the respondents, they said.

Alarming situation

The Bench noted the concern expressed by senior advocate K.K. Venugopal in a lecture pointing out that an alarming state of affairs “has developed in this court because this court has gradually converted itself into a mere Court of Appeal which has sought to correct every error which it finds in the judgments of the High Courts of the country as well as the vast number of tribunals. Mr. Venugopal has further observed that this court has strayed from its original character as a Constitutional Court and the apex court of the country. According to him, this is a self-inflicted injury, which is the cause of the malaise which has gradually eroded the confidence of the litigants in the apex court of the country, mainly because of its failure to hear and dispose of cases within a reasonable period of time.”

Mr. Venugopal, the Bench said, “has pointed out that in the year 1997 there were only 19,000 pending cases in this court, but now, there are over 55,000 pending cases and in a few years' time the pendency will cross one lakh cases. In 2009, almost 70,000 cases were filed in this court, of which an overwhelming number were SLPs under Article 136. At present, all these cases have to be heard orally, whereas the U.S. Supreme Court hears only about 100 to 120 cases every year and the Canadian Supreme Court hears only 60 cases per year.”

The Bench, therefore, wanted the issue to be settled by a Constitution Bench. It issued notice to the Supreme Court Bar Association, the Bar Council of India and the Supreme Court-Advocates-on-Record Association. The Constitution Bench may also consider appointing some senior advocates of this court as amicus curiae to assist in the matter so that it can be settled after considering the views of all the parties concerned.

Our Comments

Through this weekly mail past nearly 2 years we have been voicing concern over mindless working of Indian Judicial System. The sole objective of award of Justice has taken a backseat and has been replaced by quickest possible disposal. Such approach has resulted into explosive growth in pendency.

The malady in one word is ‘mismanagement’ It is simply not possible for the Judicial Community to find a solution without resorting to application of fundamental principles of management. If we are willing to learn a lesson from the developed countries, one may study as to how ‘National Association for Court Management’ (NACM) in USA did pioneering work as well as implementation commencing from 1990 basing the inputs from Delphi Survey. Among other initiatives, NACM Professional Development Advisory Committee was formed in 1992. Initial list of 10 core competency areas were identified and levels of KSAs (Knowledge, Skill and Ability) were formulated. 90 selected court administrators, court management faculty and researchers delineated structure and substance of the said 10 core competency.

Complete knowledge, method of implementation and results on the above are available on the internet. We are watching the intent and interest of the Judicial Community as to when it will awake from its deep slumber to catch up with the modern world. The more it delays more painful it will be not only to itself but to the litigant citizens who will in turn will apply incalculable pressures resulting into complete chaos and breakdown. We have a small working model in DRTs and through the citizens in form of litigant borrowers and guarantors are attempting suggestions and the  solutions.

(2) Latest Developments in Defence in Securitisation Act

Our recent clients whose cases are going on in Mumbai, Jabalpur, Nagpur and Bangalore (who have just filed the SAs) have been in constant touch with us and based on the feedback, following are our views on the problems faced by them:-

(a)     Bank Authorities can not take any action u/s 13(4) :- As soon as the Appeal u/s 17 has been filed, the matter becomes sub-judice and hence any such act committed by the bank officials is without any jurisdiction, power and authority. It should be challenged by way of Criminal Complaint and Report to DRT.

(b)    The DRTs have to award stay particularly in those cases where the loss and damages are more than the claim of the bank:- As per the law laid down by the Supreme Court in the matter of Mardia Chemicals, the appeal u/s 17 is akin to a civil suit where the complete adjudication has to take place particularly due to bar on civil court u/s 34 of the Civil Court. On account of loss and damages being much more than the alleged claim of the bank, there is ‘No Debt Due’ and hence all the recovery actions have to be stayed till the said civil suit is decided completely.

(c)     Adverse Orders issued by DRTs should be challenged by way of application u/s 151, Review and Appeal. One should never jump to High Court. We have already highlighted the pitfalls in several of our weekly mails.

(3) Our Weekly Mails in form of a Printed Book:-

As informed we have received huge demand for a printed version of our weekly mails. Hence it has been decided to bring about a book with comprehensive commentary, good index along with a CD for easy search. We have started receiving enquiry and suggestions from the readers of our weekly mails as well as from the visitors of our web site.

(4) Proposed DRT Conference at Indore on 25th and 26th Dec. 2010:-

We have started receiving lot of queries on the said Conference. We are trying our best to chalk out the program in such a manner so that the Conference is proved to be a real source of practical knowledge to the litigant borrowers, guarantors and their advocates. Your queries, suggestions and publicity about the said Conference will a great help to the cause of hapless bank victims.

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DRT Solutions Weekly Mail – 98th Issue dated 26th March ’10

(1) Report on Madurai Conference organized by Bank Lobby

Mr. Arun Murugan, Advocate from Madurai attended the said conference. His report is submitted below:-

“I attended the conference at Madurai which was totally in favour of the banks.  Out of 140 delegates 120 were bank staffs and remaining were advocates.  They spoke only favouring the bank and stated as if the SRFAESI Act is a draconian law which could not be defeated and borrowers are bound to pay the money borrowed irrespective of the wrong doings of the bank.  I really got shocked to listen.  I introduced myself as an associate of Ram Kishan Associates and as soon as I told all kept quite and did not speak much. I informed them that I attended all the conferences of Ram Kishan Associates and advised them to visit the drtsolutions.com to achieve great success.  I received the copy of the booklet which they gave during the session.  I will send the same through courier to your goodself.  Some of the advocates spoke regarding the valuation of the property which the bank does not disclose to the borrowers and they used to sell the properties at throw away prices.  For that Mr. Pala Ramasamy, Advocate (organizer of the conference) supported the bank and told that the bank never do wrong and they value the property properly and there is no need to disclose. 

Mr. Pala Ramasamy who was heading the session is basically a bank panel advocate for nearly 20 years and usually gives legal opinion and also at present he is a standing counsel for several banks before the Madras High Court Madurai Bench.  Now at present since due to his wrong doing and misuse of his official capacity before the High court his service as a standing counsel has been terminated by the High court.  This happened only four to five days before the Conference.  I think this Conference was not encouraging to the borrowers.  It is disappointing to note that when such a outstanding achievement is made by the DRT legal Solutions, the Conference at Madurai has discouraged the borrowers in all prospects.  The only way to get through the disappointment is to watch the drtsolutions.com and the Weekly Mails through which the borrowers could achieve success in long way.”

Our Reply:-

“We are neither against banks nor in favour of borrowers.  In democracy there is only rule of law. Whosoever will go against rule of law will have to suffer. The public servants are duty bound to serve the nation and the citizens, keeping in view the constitutional goals and objectives. Even the judiciary is one of the instrumentalities of state and it has to be positive and creative.

Our only aim is judicial determination of facts, application of appropriate law and reasoned judgment. This is enough to bring about the truth.

I get lot of feedback from bankers and their advocates some of whom support our views.

Our clients are getting success on account of above. With passage of time, there will be leading judgments which will establish the truth about industrial finance and duties of the bankers.

My forthcoming book and the proposed conference in Dec. ’10 will throw further light on the problems and solutions for the hapless borrowers and guarantors.”

Our further Comments:-

(a) We have created one of the best ‘World Class Constitution’ but have not done anything to create ‘World Class Courts’, ‘World Class Advocates’ and ‘World Class Judges’ These aspects have been left to the system to struggle and to evolve on its own. As a result, the Judiciary has been and will be continued to be subjected to ever increasing extreme pressures. Even the sitting High Court Judges have openly come out telling that the pendency will take 320 years to clear. The dogma of pendency has dominated the vision of present Judiciary even at the cost of its quality marring its main objective and function i.e. Justice. It has no time to modernize itself with requisite Management and Technology tools.

(b) On account of slow and overloaded Judiciary, the executives in Govt and Public Sector have scant regard for the Constitutional Goals and Objectives.

(c) With above backdrop, the bodies like DRTs are created and acts like DRT Act and Securitisation Acts are enacted due to which the citizens (borrowers and guarantors) are bewildered feeling helplessness and wary of injustice.

(d) The matter becomes more complex and complicated when the legal personnels in govt and statutory bodies like banks join hands with their counsels and organize conferences for the bank officials as that in Madurai.

(e) The silver lining is that the entrepreneurs (in the class of businessmen and industrialists) as litigants in DRTs are a different lot. The expeditious and draconian approach through Securitisation Act will boomerang on the executives creating another pressure on the judiciary to deliver few leading judgments like that of Mardia Chemicals. Till such time, the fight is going to be painful, long drawn and expensive. Ultimately the Justice will win and the Justice Delivery System will also be transformed.

(2) Registrar DRT appreciates our approach:-

One of our clients from Maharashtra who is contesting his own case in Mumbai DRT happened to discuss the bank litigation with one of the Registrars of the DRT Mumbai. The said Registrar advised our client to file counter-claim or damages against the banks as it is the only defence for the borrowers and guarantors. Our client was highly pleased over such validation from one of the important DRT authorities. 

(3) Violations of RBI Guidelines in respect of ‘Infrastructural Projects’ :-

Mr. BK Dubey our Senior Advocate recently handled a case of an educational institution (which is classified under ‘Infrastructural Projects’) He has communicated following observations based on relevant RBI Master Circular:-

The Banks, generally do not apply the criterion as mandated by the RBI, THUS, cause willful loss to the borrower in the long run, and they declare the project as NPA, without securing their money by way of entering into the liquidity support from the IDFC, an agency created for safeguarding the public money in the hands of the Banks. Banks violate the relevant Master Circular issued by the Reserve bank of India in the following manner :-

            a.         that, the banks do not appraise the project in line with the directions of the relevant master circular.

            b.         that, the banks do not enter into the take-out financing agreement, which is mandatory, in order to protect the interest of the bank, who is out of fear of lapse of any money advanced to the borrower, thus, they violate the RBI Circular in particular, besides, do not perform the statutory duty.

            c.         that, the banks do not disburse the amount so sanctioned in full.

d.         that, the banks do not provide timely and adequate finance.

            e.         that, the banks at no point of time ever state or communicate to the borrowers that, the infra-structure project financed by them has become unviable commercially or that, the project has not been technically feasible, therefore, without making out a case on the study of technical feasibility and commercial viability, the banks are not entitled to invoke the provisions of the Securitisation Act.

(4) Our Weekly Mails in form of a Printed Book:-

As informed we have received huge demand for a printed version of our weekly mails. Hence it has been decided to bring about a book with comprehensive commentary, good index along with a CD for easy search. We have started receiving enquiry and suggestions from the readers of our weekly mails as well as from the visitors of our web site.

(5) Proposed DRT Conference at Indore on 25th and 26th Dec. 2010:-

We have started receiving lot of queries on the said Conference. We are trying our best to chalk out the program in such a manner so that the Conference is proved to be a real source of practical knowledge to the litigant borrowers, guarantors and their advocates. Your queries, suggestions and publicity about the said Conference will a great help to the cause of hapless bank victims.

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DRT Solutions Weekly Mail – 97th Issue dated 19th March ’10

 

(1) Securitisation Appeal – Misconceptions & Clarifications

We are getting continuous feedback and queries from our clients and the visitors of our web site. Accordingly we have noticed following misconceptions on which we have given our clarifications as under:-

(a)                 Misconception :- Tribunal is not a civil court and hence can not examine the tortuous liability.

Clarification :- As per the law laid down by the Supreme Court in the matter of Mardia Chemicals, the Appeal (under Sec 17) is a misnomer. It is akin to a civil suit. Since the Sec 34 of the Securitisation Act, civil court is not to have jurisdiction in any matter which a DRT or the DRAT is empowered by or under the Act to determine, the said civil suit (i.e. Appeal under Sec 17) must contain all the matters including loss and damages (even including tortuous liabilities) for adjudication by the DRT under the Act.  

(b)                 Misconception :- Action under Sec 13(4) can not be interfered even if the borrower comes up with the plea of ‘No Debt Due’ on account of loss and damages pleaded in the Appeal under Sec 17 being much more than the claim of the bank.

Clarification :- As per the definition of ‘Debt’ under Subsec (ha) of the Act, “debt” shall have the meaning assigned to it in clause (g) of Sec 2 of the DRT Act, 1993, which means any liability - - - legally recoverable on, the date of the application. Thus if the pleadings in Appeal under Sec 17 contain loss and damages which are more than the claim of the bank, there is no ‘Debt Due’ and hence action under Sec 13(4) has to be interfered by the DRT by granting interim stay till the Appeal is fully adjudicated upon.

(2) DRTs’ Adjudication – Misconception & Clarification

      Misconception :- DRTs don’t have inherent powers like that civil court under Sec  151 of CPC.

      Clarification :- As per Sec 22 of the DRT Act, the DRTs and DRATs shall not be bound by the procedure laid down by the CPC but shall be guided by the principles of natural justice. As per the law laid down by the Supreme Court in the matter of ICICI Ltd vs Grapco Industries Ltd vide citation 1999 AIR(SC) 1975, the DRTs can exercise powers of civil court and even can travel beyond the scope of CPC for the purpose of natural justice. In fact evolution of CPC is nothing but codification of principles of natural justice. Hence the DRTs have been made all powerful trial courts and such courts naturally have inherent powers (which is codified as Sec 151 in CPC) which is also evident from Sec 19(25) of the DRT Act according to which the DRTs may make such orders and give such directions as may be necessary or expedient to give effect to its orders or prevent abuse of its process or to secure the ends of justice. 

(3) Essential Attributes of DRT Trials specially for Borrowers and Guarantors

The DRTs, DRT Act and Securitisation Act are of recent origin in our country say from 1993 with the landmark judgment of Mardia Chemicals in 2004. These tribunals as Trial Courts are developing very fast due to the inherently capable litigants like the businessmen and industrial entrepreneurs.

The development of Tribunals in England took nearly 157 years from 1800 to 1957 when the landmark report by Sir Olive Franks brought the social control on the Tribunals. The concept has yet to come in our country.

Till such time, the available provisions of law will fulfill the needs of the defendants Borrowers and Guarantors. Their advocates have a crucial role to play. The DRTs being the first court have to determine the facts judicially. Assuming that pleadings have been made by persons having mastery of relevant facts and mastery of relevant laws, the first step in judicial determination of facts is discovery of documents. In this respect the bank litigation is a simplest one as all the facts are contained in documents and all the documents are in power and possession of banks. The trial should not be allowed to proceed till all the documents have been discovered. In this respect the law laid down by the Supreme Court is very strict. Even one document can not be allowed to remain as undiscovered.

Any order issued by the PO DRTs must be examined thoroughly. Whatever points have been pressed during the arguments must be dealt with in the order with reasons otherwise and application must be made (under Sec 151 i.e. inherent powers) to incorporate the said points. Any lacuna will make the case weak in future.

The remedy of ‘Review’ is the first stage before going in for Appeal. Unfortunately our advocates and judges have not paid serious attention to the important provision of ‘Review’ We have dealt these aspects in greater details in various Weekly Mails.

The next most important aspect is cross-examination of bank officials including the Chairman of the bank which must be conducted by a person having mastery of banking, industry and finance as well as the law of evidence.

The above is absolutely essential till we get few leading judgment on industrial finance. Under the present environment, it may take several years but there is no option. Nevertheless it is possible due to entrepreneurial spirit of the businessmen and industrialists as litigants.

(4) Our Weekly Mails in form of a Printed Book:-

As informed we have received huge demand for a printed version of our weekly mails. Hence it has been decided to bring about a book with comprehensive commentary, good index along with a CD for easy search. We have started receiving enquiry and suggestions from the readers of our weekly mails as well as from the visitors of our web site.

(5) Proposed DRT Conference at Indore on 25th and 26th Dec. 2010:-

We have started receiving lot of queries on the said Conference. We are trying our best to chalk out the program in such a manner so that the Conference is proved to be a real source of practical knowledge to the litigant borrowers, guarantors and their advocates. Your queries, suggestions and publicity about the said Conference will a great help to the cause of hapless bank victims.

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DRT Solutions Weekly Mail – 96th Issue dated 12th March ’10

 

 
(1) High Court orders cross-examination of Bank Officials in a DRT Case

One of our clients from Bhuvaneswar informed that DRT Cuttack declined to cross-examine the bank officials on the plea that cross-examination is not required when examination-in-chief has been obtained on affidavit. The DRAT upheld the decision of the court below. However the High Court of Orissa Cuttack decided in favour of the borrower asking the DRAT and DRT to permit the cross-examination of the bank officials. We have asked the client to send us copy of orders of High Court, DRAT and DRT.

The above is keeping in line with our contentions that the DRT is a trial court where the complex facts relating to banking, industry and finance are to be judicially determined in accordance with the principles of natural justice. It is needless to mention that the DRTs can travel beyond the CPC (i.e. provisions of CPC need to be followed and if necessary one can go beyond it) and hence cross-examination is one of the most important tools to extract facts from bank officials (including the Chairman of the Banks) The said cross-examine must be conducted by a person having mastery of facts (banking, industry and finance) and mastery of law (including Evidence, CPC, Torts and Damages) Complete cross-examination must be video recorded so that complete demeaner of the bank officials is duly recorded.

Until and unless all the bank documents have been discovered and cross-examination has been conducted, no final arguments can take place. All these require experience trial lawyers in DRTs. Young and  inexperienced lawyers can not achieve the desired results particularly when entire atmosphere is against the borrowers.

The above presumes that perfect pleadings have been prepared and counter-claim and or damages have been raised.

Few determined borrowers will have to fight a tooth and nail battle for years till leading judgments are achieved. This alone will help all other borrowers who can not fight such battles.

(2) High Court Judge says that it will take 320 years to clear the pendency in Indian Courts

Daily newspaper Patrika in its issue dated 07.03.10 published a news item with the title '320 Years will take to get Justice for all’  The extract from the said news item along with our comments are as under:-

Justice V.V. Rao of High Court Andhra Pradesh was delivering a lecture on ‘E-governance in Judiciary’ He informed that there are more than 3.2 crore pending cases in Indian Courts and to clear such pendency it will take at least 320 years. It is further informed that rate of increase is far more than clearance of pending cases. It is observed that in literate State like Kerala, 28 cases per 1000 citizens are being filed every year whereas in educationally backward state like Bihar the said figure for new cases is 3 per 1000 per year. This means that the pendency will go up further due to boost in literacy.

We have been repeatedly highlighting this important aspect of ‘Pendency in Indian Courts’ Our suggestions is that only increase in number of judges will never achieve the desired results. We will have to use the modern management techniques and latest technology in the judicial process. When the advocates and judges are using latest mobiles, latest cars, airconditioned court rooms etc then why not latest technology and management techniques.

The first E-court in the country has started in Delhi very recently. Laptops (costing more than Rs. 40 crores) were distributed to all judges in 2007 but they are not seen in court rooms. When the proceedings in Parliament are telecast live, why the court rooms proceedings should not be video and audio recorded and telecast so that we know what is really happening in court rooms. The level and quality of arguments will be known and the reasons of rampant adjournments will also be known.

It is needless to mention that complete information about the desired judicial process is available on the internet. It is not possible for the advocates and judges as they are heavily overloaded but lead has to be taken by the  public particularly businessmen and industrialists in DRT litigations should become the torch bearers to usher in the latest technology in court rooms.

(3) Our Weekly Mails in form of a Printed Book:-

As informed we have received huge demand for a printed version of our weekly mails. Hence it has been decided to bring about a book with comprehensive commentary, good index along with a CD for easy search. We have started receiving enquiry and suggestions from the readers of our weekly mails as well as from the visitors of our web site.

(4) Proposed DRT Conference at Indore on 25th and 26th Dec. 2010:-

We have started receiving lot of queries on the said Conference. We are trying our best to chalk out the program in such a manner so that the Conference is proved to be a real source of practical knowledge to the litigant borrowers, guarantors and their advocates. Your queries, suggestions and publicity about the said Conference will a great help to the cause of hapless bank victims. 

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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DRT Solutions Weekly Mail – 95th Issue dated 5th March ’10

(1) Proper Defence against Notice under Securtisation Act

We receive numerous queries regarding proper defence against Notice under Securitisation Act. Some of these querists call on us for detailed discussions. Those who assign jobs to us are saved but some of them either are unable to decide or continue with actions as decided by them. We have covered this topic in several of our weekly mails.  The most important aspect of the defence is the pleadings of loss and damages in the representation and objections as well as in the appeal under sec. 17 of the Securitisation Act.  Since in almost all the cases the said loss and damages being more than the claim of the secured creditors, there is ‘No Debt Due’. Further the said Appeal being akin to a civil suit, the adjudication offers widest possible scope for adjudication keeping in view the law and procedure of law as applicable on the grounds of principles of natural justice. It is needless to mention that the person or agency drafting the documents (i.e. representation and objections and appeal) should have mastery of facts relating to banking, industry, finance and mastery of law of torts, law of damages, RBI Guidelines, banking laws etc. Practicing advocates normally do not have spare time for the same including research as the DRT, DRT and Securitisation Laws are relatively of recent phenomena. Even in England, it took 157 years from 1800 for the Tribunal Laws to attain stability. In our country also it will take time particularly when we have to do a lot in the management and technology aspects in the Judicial process as the courts are heavily overloaded.

(2) Rejoinder by the Borrower Plaintiff in his Damage Suit against the Bank:-

One of our clients from Ludhiana informed that after receipt of the WS by the Bank in the Damage Suit filed by the said borrower, he has been advised for submission of rejoinder. In fact in such suits, there is no need of rejoinder as the creditor defendant is not authorized to bring in any new matter except confining to the pleadings in reply to the damage suit. Further in CPC there is no provision for submission of any rejoinder. Even if any rejoinder is to be submitted, one should be careful in not offering any admission. The procedure for trials has been well established past 150 years and hence for obvious reasons, there is no provision for rejoinder.

(3) Strike at Jabalpur DRT Bar Association continues:-

The second strike by the DRT Lawyers in Jabalpur is now one and half months. Their delegation have met top officials in Delhi who have assured them for earliest possible actions. In all likelihood, the Lady PO will be transferred to some DRT in South India.

(4) Our Weekly Mails in form of a Printed Book:-

As informed we have received huge demand for a printed version of our weekly mails. Hence it has been decided to bring about a book with comprehensive commentary, good index along with a CD for easy search. We have started receiving enquiry and suggestions from the readers of our weekly mails as well as from the visitors of our web site.

(5) Proposed DRT Conference at Indore on 25th and 26th Dec. 2010:-

We have started receiving lot of queries on the said Conference. We are trying our best to chalk out the program in such a manner so that the Conference is proved to be a real source of practical knowledge to the litigant borrowers, guarantors and their advocates. Your queries, suggestions and publicity about the said Conference will a great help to the cause of hapless bank victims.

(6) Useful Quotes, courtesy Mr. Firoz Poonawalla:-

Knowledge or wealth, which is  better and why? 

 1. Knowledge is the legacy of the Wise; wealth is the inheritance .  Therefore, knowledge is better than wealth 

 2. You are to guard your wealth but knowledge guards you.  Therefore,  knowledge is better. 

 3. A man of wealth has many enemies, while a man of knowledge has many friends. Hence, knowledge is better. 

 4.  Knowledge is better because it increases with distribution, while wealth decreases by that act. 

 5.  Knowledge is better because a learned man is apt to be generous while a wealthy person is apt to be miserly. 

 6. Knowledge is better because it cannot be stolen while wealth can be stolen. 

 7. Knowledge is better because time cannot harm knowledge but wealth rusts in course of time and wears away. 

 8. Knowledge is better because it is boundless while wealth is limited and you can keep account of it. 

 9. Knowledge is better because it illuminates the mind while wealth is  apt to blacken it. 

 10. Knowledge is better because knowledge induced the humanity to say to GOD 'we worship thee as we are your servants,' while wealth engendered in the vanity which made them claim to be god. 

 Seek knowledge-- Peace and Health will follow. 

'When someone shares something of value with you and you benefit from it, you have a moral obligation to share it with others.' 

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DRT Solutions Weekly Mail – 94th Issue dated 26th February ’10

 

(1) Bank Officials caught involved in a Serious Fraud and hence suspended at the instance of CBI – matter relating to a Charitable Trust 

1.         During the course of preparation of the Securitisation case pertaining to one of our Bangalore clients in respect of Technical Institutes run by a Charitable Trust in the South India, our Senior Advocate, Mr. B.K. Dubey observed that one of the Trustees of the Trust, after his induction in the Trust as the life Trustee, used the funds of the Charitable Trust for purchase of land in the name of himself, and later on made out a lease deed in the name of the Charitable Trust for a period of 10 years, thus had created his personal right and title over the immovable and movable assets created by the Trust out of loan funds and capital created by way of deposit of fees and caution money from the students. By his greed of money unto his personal account, he appropriated the funds sanctioned by the bank in the name of construction activities of the Institute as well as for creating movable assets like facilities for Laboratory, Library, latest Equipments as required for in parting better education to the students. Side by side, the said Trustee with all the malafides in his mind created 5-6 firms and in all of the said firms, he posed himself as Proprietor. As soon as, the loans were disbursed by the bank, the said Trustee immediately within a period of 5-7 days issued cheques to all the firms belonging to his proprietorship, thus, siphoned away the loan amount.

2.         Not only this, he always acted in a manner prejudicial to the interest of Technical Institutes. For grating permission to run the Technical Institute, as per the norms of Government of India the Technical Institute desirous of obtaining the permission for running the Institute has to create a Fixed Deposit of Rs.25/- lacs in the case of “Diploma Course” and Rs.50 lacs in the case of “Degree Course”. Such deposit is required to be created in the shape of a Fixed Deposit to be issued by a Nationalized Bank in the joint names of the Technical Institute and All India Council for Technical Education for a period of ten years. The subject Trustee along with the application for permission of “AICTE”, enclosed a photo copy of the Fixed Deposit Receipt duly issued by Nationalized Bank and after receipt of the permission, manipulated a document for cancellation of application for permission and on the strength of such forged document withdrew the amount of FDR causing thereby a serious breach of the terms and conditions of the ‘AICTE’, leaving the ‘AICTE’ with no security for the Institute, in absence of which the continuing permission may be subjected to cancellation. Thus, the subject Trustee of the Technical Institute kept the sword hanging on the students studying in the Institute, besides burdening the Trust with the obligation of paying out the dues of the Bank, and in failure of which the Bank might take over the physical possession of the assets so created, thus forced closure of the Institute.

3.         In such fraudulent mischief of the said Trustee, numerous bank officers of Nationalised Bank have also been found to be involved and some of them have been suspended at the instance of Final Report submitted by Central Bureau of Investigation – Banking Fraud Cell, who has filed a criminal case before the Special Court for Economic Offences of the concerned place.

4.         Every time, whenever such an action of making deposit or withdrawing funds on the strength of some forged documents. Though the said Trustee once resigned from the life trusteeship and the Presidentship of the Trust, but, with the aid of fraudulent design, and forged documents, carried out some special resolution / amendment to the original Trust Deed  and appointed other persons as Managing Trustee under whose signature he withdrew the amount unto his personal benefit with an intention to cause willful financial loss to the Education Institutes and the persons appointed as Managing Trustee / Executive Staff besides threat to the future of the students which could have spoiled their career on account of cancellation of permission / de-affiliation from the University. The miscreant trustee has also carried out some amendments in the original trust deed, and has stated that, the “Charitable Trust” from the date of amendment shall be deemed to be the “Private Family Trust”. Thus, has changed the entire objects of the Trust, i.e. Breach of Trust in Charitable Trust.

5.         The present Managing Trustee is running the Institutes successfully but the former Managing Trustee is still playing a game of fraud and carrying actions causing willful financial losses to the Technical Institute by withdrawing the funds from the accounts of the trust, generated out of deposit of fees/caution money from the students.

6.         The present management of the trust has to be very vigilant on all the aspects of losses which may be caused by the former trustee in order to safeguard the Institutes and reputation of the Technical Institutes, besides safeguarding the properties of the trust, which cannot be vested in the hands of single person.

7.         We have decided to include the loss and damages (in the Securitisation case) caused to our client by the said bank on account of the wrong doings. Since the said loss and damages are more than the claim of the Bank, there is ‘No Debt Due’ and hence no recovery action can be invoked against our client.

(2) Answers to queries on Company Act

One of visitors to our web site, made certain queries relating to the Company Act. The same were replied to by our Associate Mr. N.K. Sharma, ex-GM(Law) as under:-

Q.1. Can Board of Directors pass the special resolution about raising of equity shares?

Answer: Section 189 of the Companies Act (‘the Act’) defines an ordinary resolution and a special resolution and both are passed in general meeting and not by the Board of Directors. Section 81 (1) of the Act provides for further issue of equity shares by passing an ordinary resolution and  Section 81 (1A) of the Act provides for the circumstances when further issue of equity shares is to be made only by passing a special resolution.

Q.2. What amount of fees are to be paid to ROC for registration of special resolutions?

Answer: Schedule X of the Companies Act (‘the Act’) contains the Table of Fees to be paid to the Registrar (‘ROC’). Para 6 of Schedule X has provided for the fees to be paid, inter alia, for registration of special resolution on the basis of nominal share capital of the company as follows:

Less than Rs. 1,00,000-----------------------------------Rs. 100

Rs. 1,00,000 but less than Rs. 5,00,000-------------Rs. 200

Rs. 5,00,000 but less than Rs.25,00,000-------------Rs. 300

Rs. 25,00,000 or more------------------------------------Rs. 500

(3) Our Weekly Mails in form of a Printed Book:-

We have received huge demand for a printed version of our weekly mails. Hence it has been decided to bring about a book with comprehensive commentary, good index along with a CD for easy search. We solicit suggestions from the readers of our weekly mails as well as from the visitors of our web site.

(4) Proposed DRT Conference at Indore on 25th and 26th Dec. 2010:-

We have started receiving lot of queries on the said Conference. We are trying our best to chalk out the program in such a manner so that the Conference is proved to be a real source of practical knowledge to the litigant borrowers, guarantors and their advocates. Your queries, suggestions and publicity about the said Conference will a great help to the cause of hapless bank victims.

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DRT Solutions Weekly Mail – 93rd Issue dated 19th February ’10

 

 
(1) Framing of Issues in DRTs and Trial Courts:-

One of our clients from Chandigarh has sent us proposed 39 issues in the matter of damage suit filed against the bank in civil court. Our comments are as under:-

(a)    First all the material facts must be discovered and the machinery provided under O-11 of CPC i.e. discovery of documents and interrogatories must be used before proceeding with the framing of issues.

(b)    When the discovery and inspection as per O-11 of CPC has been completed, the provisions under O-12 and O-13 should be used.

(c)     When all the material facts have been discovered, substantial facts relating to the case and the applicable laws be listed. Then only provisions under O-14 relating to Issues be utilized.

(d)    It is observed that the trial courts and DRTs are in a hurry to expedite the matter and as a result all the material facts are not discovered. This will create a lacuna in the trial which can not be corrected by subsequent proceedings or the higher courts.

(e)    As per O-14, Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other.  Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. Each material proposition affirmed by one party and denied by the other shall form the subject of distinct issue.  Issues are of two kinds i.e. issues of fact and issues of law. The pleadings, contents of the documents and replies to interrogatories are the materials from which the issues may be framed.   

(f)      In view of above, issue no 1 relating to affidavit is OK.

(g)    In our view, the issue nos 2, 3 and part of 36 respectively relating to industrialization of the country, industrial sickness and rehabilitation are not material issues as they are the govt. policies and are part of statutory RBI Guidelines.

(h)    In respect of issue no 4 regarding appraisal note, it needs to be modified as proposed below:-

“Whether sanction of loan is based on technical and financial appraisals conducted by the bank? If so whether the payment of interest and repayment of loan being out of surplus generated by the project is based on the said appraisal?”

“Whether the security of the loan is limited to the portion of the assets created out of the funds provided by the bank? Whether additional security or personal guarantee asked for by the bank is illegal?”

(i)      Since we are not aware about the take over of the unit, the issue no 18 and 24 relating to sec 29 of SFC act may not be applicable in the present case.

(j)      In issue no 37, opening sentence may be corrected as under:-

“Whether - - - are liable for the damages caused as elaborated in this suit i.e. - - ?“

(k)    The proposed issues may be finalized based on our above contentions.

(2) Agitation & Srike against the PO DRT Jabalpur still continues:-

The agitation and strike of the Advocates against the PO DRT Jabalpur is still continuing. The office bearers of the Bar Association of DRT Advocates have gone to Delhi to call on the Finance Minister and Law Minister of the central govt.

(3) Disclosure of Documents and Notings in important matters viz. Appointment of Judges:-

This important issue has been dealt with by the 7 Judges bench by the Supreme Court in the matter of SP Gupta & others vs Union of India AIR 1982 SC 149.  

(4) Discretion of Judges:-

This important issue has been dealt with by the 7 Judges bench by the Supreme Court in the ruling mentioned at sl. No. 3 above.

(5) Proposed DRT Conference at Indore on 25th and 26th Dec. 2010:-

While there is keen interest in the above conference, we solicit the feedback and issues to be interacted therein from the attendees. Please send us the mails giving the topics and matters of interest. This will help us to deal with such topics only which are practically useful in the trials in DRTs and civil courts for the borrowers and guarantors.

 

(6) Words of Wisdom:-

The following is the extract of the mail sent to us by one of our clients from Pune:-

1. Remember that leadership isn't about your position. It's about your influence.

 

2. Get fit like a pro athlete.

 

3. Lift people up versus tearing people down.

 

4. Protect your good name. An impeccable reputation takes a lifetime to build. And 60 seconds to lose.

 

5. Surround yourself with positive, ethical people who are committed to excellence.

 

6. Remember that even a 1% daily innovation rate amounts to at least a 100% rate of innovation in 100 days.

 

7. Believe in your dreams (even when others laugh at them).

 

8. Measure your success, not by your net worth but by your self worth (and how happy you feel).

 

9. Take an intelligent risk every 24 hours. No try-No Win.

 

10. Read "Buffett: The Making of an American Capitalist".

 

11. Watch "Man on Wire".

 

12. Regardless of your title at work, be a team builder.

 

13. Remember that business is all about relationships and human connections.

 

14. Say "please" more.

 

15. Say "thank you" more.

 

16. Know your Big 5: the five things that need to happen by the end of this year for you to feel its been your best year yet.

 

17. Read your Big 5 every morning while the rest of the world is asleep.

 

18. Read "As You Think". At least twice this year.

 

19. Be willing to fail. It's the price of greatness.

 

20. Focus less on making money and more on creating value.

 

21. Spend less, save more.

 

22. Leave everything you touch better than you found it.

 

23. Be the most positive person in every room you're in.

 

24. Run your own race.

 

24. Stay true to your deepest values and best ideals.

 

25. Write a handwritten thank you note to a customer/friend/loved one every day.

 

26. When you travel, send love letters to your kids on hotel stationary. In time, they'll have a rich collection to remember your travels by.

 

27. Read "Atlas Shrugged".

 

28. Be a problem solver versus a trouble maker.

 

29. Rather than doing many things at mediocrity do just a few things-but at mastery.

 

30. Honor your parents.

 

31. Commit to doing great work-whether anyone notices it or not. It's one of life's best sources of happiness.

 

32. Give more than you receive (another of the truths of happiness).

 

33. Have your 1/3/5/10/25 years goals recorded on paper and review them weekly.

 

34. Be patient. Slow and steady wins the race. The only reason businesses that went from zero to a billion in a year or two get featured in magazines is because 99% of businesses require a lot more time to win.

 

34. Underpromise and then overdeliver.

 

35. See part of your job as "a developer of people" (whether you work in the boardroom or the mailroom).

 

36. Wear your heart on your sleeve. When people see you're real, they'll fall in love with you.

 

37. Be authentic versus plastic.

 

38. Read "The Alchemist".

 

39. Remember that life wants you to win. So get out of your own way.

 

40. Consider that behind every fear lives your next level of growth (and power).

 

41. Eat less food.

 

42. Drink more water.

 

43. Rest when you need to.

 

44. Read "SUCCESS" magazine.

 

45. Write your eulogy and them live your life backwards.

 

46. Demand the best from yourself.

 

47. Remember that the more you go to your limits, the more your limits will expand.

 

48. See everything that happens to you as an opportunity to grow (and therefore, as a precious gift).

 

49. Be obsessed with learning and self-development.

 

50. Become comfortable alone (you are the only person you get to be with your whole life).

 

51. Smile. It's a stunningly effective way to win in business and life.

 

52. Reflect on the shortness of life.

 

53. Be bold when it comes to your dreams but gentle with those you love.

 

54. Remember that success is dangerous because it can kill drive/innovation/passion and going the extra mile. Be successful yet stay hungry.

 

55. Read "The Autobiography of Benjamin Franklin".

 

56. Be of deep value to this world.

 

57. Own beautiful things but don't let them own you.

 

58. Use excellent words.

 

59. Laugh more.

 

60. Don't complain, gossip or be negative.

 

61. Plan as if you'll live forever but live as if you'll die tomorrow.

 

62. Feel free to pass these lessons on to those you want to help.

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DRT Solutions Weekly Mail – 92nd Issue dated 12th February ’10

 

(1) Threat of Physical Possession by Bank under Securitisation Act foiled:-

The banks have been threatening the borrowers to take physical possession of the productive assets of their units. Gripped under panic, the borrowers run here and there, agree to such terms and conditions which create lot of financial problems and hence considerable mental tension. If such borrowers happen to contact us at proper time, we guide them properly so that they are saved out of such panic situation.

Recently one of our clients happened to contact us and the chain of events were as under:-

(a)      Bank sent the notice under Securitisation Act. The borrower submitted the representation and objections.

(b)      Negotiations were going on for few months for settlement.

(c)      In the meantime, the bank sent the possession notice on 01.02.10 and informed the borrower that on 10.02.10 they will be coming with police for taking possession and locking the secured assets. At this stage, the borrower contacted us.

(d)      We sent a notice (by e-mail and registered post) on 05.02.10 to the bank that the borrower has got a right to appeal to DRT within 45 days from the date of notice and during this period, physical possession can not be taken. The authorized officer of the bank through e-mail dated 08.02.10 informed us and the borrower that:-

“Your request for not taking any action against the above named defaulter party for further 45 days under Securitisation Act is not at all acceptable. On failure to comply with the requirement of our earlier notice of 60 days, we have given notice to take possession of the assets on 10.02.2010.  The Authorised officer will be proceeding to take possession of the charged securities on this date.  Your client may be advised to handover peaceful possession of all the securities on that date failing which further appropriate action will be initiated.”  

(e)      On 09.02.10 late evening, the said Authorised Officer informed to the borrower that the bank will adhere to its action to take physical possession on 10.02.10.

(f)        In the meantime in reply to above we sent a detailed letter on 09.02.10 at 9:30 PM through an e-mail to the Chairman & MD of the Bank  with copy to the said Authorised Officer informing that any attempt by the bank to take physical possession on 10.02.10 will be illegal and hence will be resisted followed by legal action against the CMD and the said Authorised Officer.   

(g)      In the morning of 10.02.10, the said Authorised Officer informed the borrower that they have reconsidered the matter and instead of physical possession, the bank will take only technical (i.e. symbolic) possession.

(h)      The borrower was relieved of the tension as the Appeal u/s 17 will be filed within the prescribed period of 45 days and the same will include the loss and damages suffered by the borrower due to wrong doings of the bank. Since the said loss and damages are much more than the claim of the bank, there will be no debt due and hence no recovery action can be invoked till the said loss and damages are finally decided by the court of law. Since the pleadings will be drafted by us followed by guidance and advice on every crucial date, the matter will take several years.

Conclusion

The above incidence shows that with proper knowledge of law combined with IT technology, the matter can be handled satisfactorily in least possible time. As a result, the bank was not successful in taking physical possession of the allegedly secured assets.

(2) Information and Fundamental Rights

In Vol. 10 Part 4 of 2009, SCC (Supreme Court Cases Weekly), an useful article titled ‘Information and Fundamental Rights’ by Justice Ruma Pal, former Judge of Supreme Court has been published. This article must be read by borrowers facing litigation in DRTs or Court of Law. Following useful SC Judgments have been cited in the said article:-

(a)     State of UP vs Raj Narain (1975) 4 SCC 428 ;- It is a historic judgment on the citizen’s right to know.

(b)    Indian Express Newspapers (Bombay) (P) Ltd vs Union of India, (1985) 1 SCC 641 :- in this judgment, SC has stated that the fundamental principle underlying the fundamental right to freedom of expression is the people’s right to know.

(c)     Reliance Petrochemicals Ltd. Vs Proprietors of Indian Express Newspapers Bombay (P) Ltd. (1988) 4 SCC 592 :- SC said that ‘Right to know is part of right to life itself.’

(d)    Popcorn Entertainment vs City Industrial Development Corporation, (2007) 9 SCC 593 ;- Information obtained under the RTI Act can be used to support the case in court of law.

Application of above Article and SC judgments in DRT Litigations

The most important aspects of bank litigations in DRTs are pleadings and discovery of documents. With the application of above article and the SC judgments, all the material bank documents can be discovered.

(3) Proposed DRT Conference at Indore on 25th and 26th Dec. 2010:-

It is proposed to deal with important SC judgments which are useful in DRT Trials. We have undertaken a special study concentrating on this aspect.

 

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DRT Solutions Weekly Mail – 91st Issue dated 5th February ’10

 

(1) Supreme regrets and criticizes itself:-

Our associate Mr. T.R. Radhakrishnan, a banking expert has sent the following news item which is self explanatory. As soon as we get the SC judgment of 5th ultimo, we shall publish the same. 

Globalisation blinds us to aam aadmi plight: SC

Thu, Jan 28 05:49 AM

In unusual self-criticism, the Supreme Court said today that courts, including the "last court in the largest democracy of the world", have lost sympathy for the common man in pursuit of the "attractive mantras" of globalisation and liberalisation.

A Division Bench of Justice G S Singhvi and Justice A K Ganguly, in two separate orders, cautioned judges of the Supreme Court and Constitutional courts that there will be "precarious consequences" will visit the nation if they dilute constitutional imperatives to promote the "so-called trends of globalisation".

Both judges passed their orders on January 5 in an appeal filed by Harjinder Singh, a retrenched worker with the Punjab State Warehousing Corporation, who had challenged the Punjab and Haryana High Court decision to pay him Rs 87,582 as compensation instead of re-instating him with 50 per cent back wages.

The judges set aside the High Court order and called for his re-instatement with 50 per cent back wages and cost of Rs 25,000.

Justice Ganguly quoted Rabindranath Tagore in his order when he described the "eventualities which may visit us in our mad rush to ape western ways of life".

His brother judge on the Bench, Justice Singhvi, observed how he had noticed a "visible shift" generally in the courts' approach in dealing with cases involving the interpretation of social welfare legislation like the Industrial Disputes Act.

"The attractive mantras of globalisation and liberalisation are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganised workers," Justice Singhvi said in his order.

Justice Singhvi said a large number of cases end up with the workmen being denied any relief from judges, who readily accept the justification employers give about such "illegal retrenchments."

"Judges of this Court are not mere phonographic recorders but empirical scientists and interpreters of the social context in which they work," said Justice Ganguly.

"I am in entire agreement with the view of my Lord Brother Justice Singhvi about a disturbing contrary trend which is discernible in recent times and which is sought to justified in the name of globalisation and liberalization of economy," said Justice Ganguly.

"Our Constitution is primarily shaped and moulded for the common man. It takes no account of the 'portly presence of the potentates, goodly in girth'. It is a Constitution not meant for the ruler, but the ranker, the tramp on the road, the slave, the man with too weighty a burden, too weary a load," said Justice Ganguly, quoting eminent jurist N A Palkhivala.

Justice Ganguly said the "ditches" created in the society by the advance of globalisation can only be overcome if "this Court makes an effort to protect the rights of the weaker sections of the society as per the Constitutional mandate".

"Judges and specifically the judges of the highest court have a vital role to ensure that the promise (to secure all citizens justice, liberty, equality and fraternity) is fulfilled. If judges fail to discharge their duty, they fail to uphold and abide by the Constitution which is their oath and office... Judges of the last court in the largest democracy of the world have a duty to articulate the Constitutional goal," the Bench said.

(2) Our contention in respect of limitation on the execution of the order under Sec 138 of NI Act appears to be correct:-

We raised an important issue vide details at item no (3) in the  80th Issue of weekly mail dated 13th Nov. ’09 that the limitation for the execution of order under Sec. 138 of NI Act should be 3 years. We experimented this in a real case. On 04.11.09 an application was submitted in respect of an order dated 20.12.04 that it can not be implemented being beyond limitation of 3 years. The complainant was asked to give reply and the date was fixed as 04.02.10. The complainant could not furnish any reply and sought further time of 5 months. This shows that our contention appears to be correct.

(3) Important Supreme Court judgment of 30.10.09 now published in SCC:-

Our Attorney Associate Mr. N.K. Sharma, ex-GM(Law) informed that one of the most important SC Judgments of 30.10.09 has now been published in SCC vide citation (2010) 1 Supreme Court Cases 512 Urban Improvement Trust, Bikaner vs Mohanlal. This judgment refers to the 1974 judgment referred to by us in 82nd Issue of weekly mail dated 27th Nov. ’09.

(4) Agitation and Strike against PO DRT Jabalpur SCC:-

Since there was no change in the behaviour and conduct of PO DRT Jabalpur, the DRT
Advocates resorted to another strike. A delegation has gone to report the matter to the Finance Minister, Govt of India. The appointment of the said PO has also been questioned in High Court Jabalpur. This shows that public is becoming more and more alert and vigilant about such judges who are arrogant and care least about the principles of natural justice, our constitution and the law laid down by the Supreme Court. The legacy of British Judges is slowly fading away.

(5) Proposed DRT Conference at Indore on 25th and 26th Dec. 2010:-

We have started receiving the following response to the proposed conference:-

(a)     Mr. Mahendra Jain of Belgaum has desired to have Registration. We shall publish the details in ensuing weekly mail.

(b)    Mr. N.K. Sharma, our Associate and ex-GM (Law)  has proposed the subject matter of his talk. We have given him suggestions to reexamine so that the talk is more useful to the attendees from the angle of practical trial in DRTs.

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

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

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

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

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

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

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

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

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

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

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

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