DRT Solutions Weekly Mail – 95th Issue dated
5th March ’10
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) 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.'
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.
DRT Solutions Weekly Mail – 94th Issue dated
26th February ’10
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)
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.
DRT Solutions Weekly Mail – 93rd Issue dated
19th February ’10
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) 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.
DRT Solutions Weekly Mail – 92nd Issue dated
12th February ’10
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) 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.
DRT Solutions Weekly Mail – 91st Issue dated
5th February ’10
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) 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.
DRT Solutions Weekly Mail – 90th Issue dated
29th January ’10
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) 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:-
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
DRT Solutions Weekly Mail – 89th Issue dated
22nd January ’10
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) 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.
DRT Solutions Weekly Mail – 88th Issue dated
15th January ’10
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) 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://thestar.com.my/lifestyle/story.asp?file=/2008/2/23/lifeliving/20367306&sec=lifeliving
http://www.youthejournalist.com/article.php?aid=2826&sid=21
DRT Solutions Weekly Mail – 87th Issue dated 8th
January ’10
All Weekly mails right from 1st Issue
to latest, click links below:-
