Case submitted by Mr.
Sundarajan, Madurai vide his mail dated 28.03.08 for Discussions in the
Conference
Respected Mr. Ram
Kishan,
The following is the interested case
we have faced. Please view the case history and can be discussed in the
seminar since it s a unique case related to Agricultural loan.
Many such cases came in the lime light
of final precarious stage since most of the advocates do not equipped with
SERFAESI Act; DRT,1993 Act; Banking Laws; Banker’s Books Evidence Act, C.P.C
and many judgments in Civil Court, High Court, DRT, DRAT and Supreme Court
in favour of the Defendants.
Please do not blame me. I am not an
advocate. During the commercial transactions with the bank from 1982 to
1995, I was under unbelievable trust and confidence that the nationalized
bank never do the wrong doing since they are being screened periodically by
statuary internal audits and external audits by the Independent agencies. In
my opinion these auditing is the statuary and mandatory as per RBI..
But what is the use of this type of
eye washing auditing. I observed during these auditing that these auditing
teams are taken to different site seeing places during their auditing days
and finally auditing teams endorsed with certificate that the branch does
not do any wrong doings with some minor remarks that will not harm either
the branch or the manager in charge.
The spate of litigation in DRT and in
civil courts can be reduced considerably if the auditing team assesses the
facts of the mistakes by the bank.
I am an NRI Engineer and the victim
of the bank of their wrong doings. My case is pending before DRT in trail
stage for the past 10 years even though the DRT act is enacted for the
expedite adjudication probably within six months. The applicant bank filed
OA in January, 1998. I started acquiring knowledge by consulting many law
associates who were not aware of the DRT Act. I collected related law books
and at the same time processing available bank records to find out the wrong
doings if any to substantiate and challenge. Periodically I filed
Statements as directed by Registrar and the Presiding Officer of DRT without
delay in Chennai, Coimbatore and now in Madurai. The bank who instituted the
O.A in January, 1998, is unable to give counter written statement till date
since they can not deny any wrong doings. Still it is in trial stage and I
am fighting with the assistance of Respected Mr.Ramkishan, Mr.Dubey and
Mr.Arun Murugan.
I have to tell about Mr.Arun
Murugan who is the associate of M/s.Ramkishan Associates. He is very young,
dynamic and talented capacity to strong representation and argument on
technical grounds. The P.O reserve orders in many of his cases.
Many defendants are mislead and
threatened by the bank by exploiting the ignorance of the banking and DRT
laws. The banks touched the sensitive social issues of reputation, image
through ‘Publishing Auction Sale’, pasting ‘Possession Notice’. The
defendants approaches some advocates at the last moment and are misguided.
The following is the extract from
www.drtsolutions.com. This convinced me to approach M/s.Ramkishan and assist
me for further proceedings which fixed the applicant bank in corner and
impress P.O.
1.
Bank abuses its office by an act of omission and the
consequences of that is injury to the defendants and loss of property and
earnings. Bank is liable for the Tort of Misfeasance.
2.
Bank gains monetary benefit through wrong doings to
which the unit is entitled to and by such benefits suffers an undue loss to
the unit.
3.
Bank has no power or authority to cause any injury to
their clients intentionally or even unintentionally.
4.
Bank acted with negligence, malafide intentions and
motives caused irrevocable damages to me due to their said wrongful acts.
5.
Bank has mis-conducted itself by purporting to
exercise powers, which were conferred on it for the benefit of the customer,
with intent to injure.
6.
The ‘Torts’ which are actionable on the above proof of
damages caused by the above said acts of wrong doing by the Bank have
‘Prima-Facie’. The damages thus caused with the violation of my legal
rights.
7.
The measure of
damages must also include the following aspects:
Actual damage is the gist of action in (2) menace (4) slander (except in
four cases) (5) deceipt (6) conspiracy or confederation (8) distress
damage feasant (9) negligence (10) nuisance consisting of damages to
property.
8.
The Defendant, to whom a wrong is done by the bank, am
entitled to get the full compensation for restoring the thing damaged to its
original condition by restitution. The wrong doings by the bank are willfully
caused, knowingly continued, cause legal damage.
9.
That, RBI Guidelines have been held to be statutory
and mandatory for the banks and FIs. Any violation of the said RBI
Guidelines amounts to wrong doings on part of the bank and concerned
officials. The bank officials have no power or authority to cause any injury
to their clients intentionally or even unintentionally.
10.
That, with the change in socio-economic outlook, the
public servants in the nationalized bank is being entrusted with more and
more discretionary powers. The public policies in respect of banking decided
in the Parliament are communicated by the Central Government to the RBI. The
RBI in turn communicates the same to the Chairmen or Heads of all the banks
as RBI Guidelines which held to be statutory and mandatory for the banks and
FIs. All the employees and functionaries of the banks are bound by the said
framework of law.
11.
The nationalized banks and other financial
institutions are duty bound to follow the RBI Guidelines and Govt. policies.
Any violation of these is regarded as breach of statutory duties. The said
banks and financial institutions are duty bound to take care of the various
needs of the borrowers. Further they are supposed to work without any
negligence or malafide intentions or motives, they are duty bound to work
with reasonable foreseeability so that no injury is caused due to their
wrongful acts or omissions
The Clients and the advocates can
acquire more knowledge and get strong will power to challenge the mighty
banks if they utilize the opportunity to attend this valuable seminar.
Case History:
-
Agricultural Product of Mushroom
Cultivation by utilizing non-conventional source of energy.
-
The Bank sanctioned Agricultural Term
Loan of Rs.12.30laqcks and C.C Loan of Rs.3.50 lacs in 2002. But the bank
charged commercial rate of interest of 14.50% instead of applicable rate of
interest around 7%.
-
In the Statement of account it is
mentioned ATL.
-
The bank issued possession notice in
2007 under SERFAESI Act.
-
The unit filed O.A challenging
possession notice.
-
Tribunal granted conditional stay
order of paying Rs.70,000. In another hearing the Tribunal passed another
conditional order of Rs.50.000. Both the orders are compiled and the stay
was forced till next hearing.
-
In the sanctioned letter Agricultural
loan is not mentioned. But in the Statement of Account and other
communication documents, ATL (Agricultural Term Loan) is written.
-
Sr.Counsel (Not Mr.Arun Murugan) was
unable to appear on 14.02.08 and the Appellant (the entrepreneur)
represented for adjournment and to give an opportunity for the appearance of
the Sr.Counsel later date.
-
Exploiting this advantage the bank
counsel demanded the enquiry and the Tribunal vacated the stay.
-
The bank tries to sell the property
for Rs.15 lacs for the mortgaged Agricultural property valued Rs.45 lacs as
per the licensed charted Engineer.
-
Subsequently Mr.Arun Murugan filed I.A
to give an opportunity as per the citation Khem Chands case AIR.1958 SC 300
and Swarna Lath Ghosh Vs. H.K. Banerjee 1969 AIR 1167. Also prayed for
waiver of Agricultural Loan declared in the Parliament during Budget session
by the Financial Minister. Also send application for the waiver of the
agricultural loan to the Bank with registred post with acknowledgement with
copy to Regional Office of the bank.
-
In the last hearing Mr.Arun Murugan
appeared, challenged and had healthy argument with P.O that the unit got
Agricultural Term Loan and not commercial loan. He adduced that the Mushroom
cultivation is the agricultural product declared as per RBI and report from
Agricultural College, Coimbatore.
P.O and the bank lawyer are nonplused
and the bank is so confident and strong impression that they will get the
recovery certificate in the same day. They did not expect and unaware of the
other front of attack. The Sr.Counsel of the entrepreneur appearing for this
case for the past one year appreciated Mr.Arun Murugan about his technical
talent and changed the stands taken by P.O in favour of the bank.
-
Today 27.03.08, the hearing came and
Mr.Arun Murugan represented and reiterated that the loan is sanctioned
Agricultural Loan and the claim by the bank is in commercial nature and null
and void. The P.O reprimanded the counsel of the bank who misleads P.O that
the unit is SSI unit and attracts commercial loan. But the bank fails to
produce any evidence. They also told that they need not adduce any evidence
under SERFAESI Act. P.O got angry and directed that it is essential to
produce evidence even under SERFAESI Act. The bank also stated that the unit
produced SSI certificate and is not entitled under Agricultural Loan Scheme.
He also told the bank is producing only the Statement of Accounts and this
not sufficient for adjudication. He directed the bank to produce all
documents as per the request of Mr.Arun Murugan.
Question:
-
In case, if the unit produced SSI
certificate to the bank and the bank sanctioned Agricultural Loan, shall
we enjoy the benefit of under Agricultural Loan facility that attracts
lower rate of interest with simple interest of quarterly rest?
-
Whether this Agricultural loan
will attracts total waiver as per the announcement by the Government of
India during Budget session?
-
Whether we can file counter Claim
for the non-feasance and infringing RBI guidelines of the bank?
-
In what grounds shall we stop
further proceedings by the bank for the selling of the mortgaged
Agricultural property after the vacation of Stay.
Regards
Sundararajan
