DRT Solutions Weekly Mail – 262^nd Issue dated 17^th May ‘13

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(1) Important & Useful Judgment of the Supreme Court – Court, Tribunal, DRT, Counter-claim & Appeal 

Nahar Industrial Enterprises vs Honkong & Shanghai Banking Corp. decided on 29.07.09 by Supreme Court of India, Judges – S.B. Sinha & Ashok Kumar Ganguly, Civil Appeal No : 4796 of 2009

DRT Solutions Citation –  DRTS-013-Nahar vs HSBC-2009

                                                http://www.drtsolutions.com/Nahar-HSBC-Counter-claim-Appeal.htm

                                                           We have now numbered the Judgments published on this web site as DRTS-00.) Accordingly all the judgments published so far have been numbered. The judgment on this page is numbered as DRTS-013.

Comments by DRT Solutions

An Important Supreme Court Judgment about Tribunal, Court, DRT, Transfer from Court to Tribunal, Counter-claim and Appeal

The full text of the judgment is given http://www.drtsolutions.com/Nahar-HSBC-Counter-claim-Appeal.htm with important portions marked in Red on pages 29, 35, 36, 38, 43, 44, 45, 49 to 52, 54, and 55. If the borrower litigants find that the adjudication of their counter-claim is not being done properly, based on this judgment, they should request DRT to transfer the said counter-claim to civil court in the interest of justice, equity and good conscience. They will not only get complete justice but their right to appeal will be safe guarded without any deposit. Since in all the cases, the amount of counter-claim is much more than the claim of the bank, there is ‘No Debt Due’ and hence until and unless the counter-claim is decided, no recovery action can be initiated against any decision of the DRT. The following are the important aspects:- 

(1)   The ‘Tiwari Committee’ constituted by the RBI in 1981 first proposed establishment of Tribunals for expeditious recovery of bank overdues. The said committee recommended that these tribunals should be manned by persons (i.e. the Advocates and the Judges) having knowledge and experience in banking, industry and finance. Till date (even after 20 years of establishment of DRTs) the said recommendation has not been implemented. On one hand, huge court fee and other charges are being collected by the DRTs, no money is being spent on the training of the Judges and the Advocates on the essential knowledge of banking, industry and finance. This is clearly affecting award of justice particularly to the borrowers and guarantors. 

(2)   The Supreme Court of India, 15 years back laid down the law that the Tribunals be transferred from control of the Administrative  Ministry (i.e. Ministry of Finance in case of the DRTs) to Ministry of Law. Till date even after the SC verdict, the DRTs are not being transferred from the control of Ministry of Finance to Ministry of Law. The Ministry of Finance continues to post bank officials as DRT Judges and Recovery Officers. The Ministry of Finance continues to hold regular meetings with the DRT  Judges asking them to expedite bank recoveries. All these are open violations of Principles of Natural Justice which are governing the DRT Act and the Securitisation Act. Under such facts and circumstances, the borrowers and guarantors can not expect justice. 

(3)   The DRT Act was enacted in 1993. The provision of counter-claim in this Act was incorporated in 2000 and is exactly the same as in CPC 1908. In CPC itself such provision was made in 1976. The salient features of the counter-claim are as under:- 

(a)   The counter-claim is the suit filed by the borrower. Whereas the banks are bound to file their claim for adjudication in DRTs, the borrowers are not bound to do so. The bar of civil court vide section 18 of the DRT Act applies to the banks only. 

(b)   Further as per Section 19(11) of the DRT Act, “Where a defendant sets up a counter-claim and the applicant contends that the claim thereby raised ought not be disposed of but by way of counter-claim but in an independent action, the applicant may, at any time before issues are settled in relation to the counter-claim, apply to the Tribunal for an order that such counter-claim may be excluded, and the Tribunal may, on the hearing of such application, make such order as it thinks fit.”   

(c)   In view of above, either the DRT has to adjudicate the counter-claim following the established procedure laid down in the CPC or transfer the case to the civil court. 

(d)   Since the amount of counter-claim is much more than the claim of the bank, there can not be any recovery action as there is ‘No Debt Due’ till the counter-claim is fully adjudicated upon either by the DRT or by the civil court. 

(4)   While all out emphasis has been laid on expeditious adjudication and enforcement of securities to free blocked public funds, an important aspect has not been paid attention. If all these matters are so important, the banks and the financial institutions have to be always careful and ever vigilant to avoid such actions which will delay the matters in court of law. The RBI has emphasized all these aspects since 1976 but the bank bureaucracy has not been serious in respect of e.g. signing of blank documents, execution of proper documents, eliminating questionable one side documents, providing copy of complete set of documents executed, timely sanction of needed funds, timely revival, restructure and rehabilitation, avoiding questionable delays, strict observance of RBI Guidelines and Govt policies, strict  observance of duty of care, strict observance of Supreme Court leading judgments like Kripack, Maneka Gandhi, Mardia etc., proper determination of NPA as per RBI Guidelines, proper process for initiation of declaration of willful defaulters, proper conduct and actions of the Authorised Officers, strict legal audit by independent auditor before issue of notice u/s 13(2), 13(4), application u/s 14 and any appeal, transfer of DRTs from Ministry of Finance to Ministry of Law etc. If all these are strictly enforced, the consequent cases filed before DRT will be expeditiously decided. Further the burden of unnecessary cases on DRTs and Civil Courts will come down heavily. Under such circumstances only there will be expeditious recovery. Otherwise the present system of mindless litigation and unsatisfactory recovery will continue.     

(5)   The bureaucracy in banks and financial institutions instead of correcting themselves and devising remedial internal measures are more inclined to secure stronger legal powers, having controls on DRTs through Ministry of Finance by  appointing bank officers as Judges and Recovery Officers  in DRTs and blaming others. It is like if you point out one finger to others, you forget that three fingers are pointing towards you. 

(6)   Since the banks and financial institutions are less likely to correct themselves, the legal compulsions like damages and counter-claims will alone force them to do so. 

(7)   The full text of this useful judgment is given http://www.drtsolutions.com/Nahar-HSBC-Counter-claim-Appeal.htm with important portions marked in Red on page 29, 35, 36, 38, 43, 44, 45, 49 to 52, 54, and 55. 

(2) Landmark Judgment on the Role of DRT  

In a news item dated 04.08.09, the judgment dealt by us in Sl No 1 above has been termed as Landmark Judgment on the role of DRT. The said news item is reproduced below:-

http://indiacorplaw.blogspot.in/2009/08/landmark-judgment-on-role-of-debt.html 

The role of the Debt Recovery Tribunal has been the subject of a great deal of controversy. Some aspects of this issue have been discussed on this blog. The main question has been whether an independent suit filed by a borrower against a bank in a civil court could be transferred to the DRT as a “counterclaim” against his wishes. The law on the point was uncertain, with several conflicting judgments. Last week, the Supreme Court put the controversy to rest with a comprehensive and well-reasoned judgment. A copy of the decision, Nahar Industrial Enterprises Ltd. v. HSBC, is available here.

The case concerned several appeals that had been filed against decisions of various High Courts on this question. Some had held that an independent suit was not barred, while others had held that it was, and transferred it to the appropriate DRT. To briefly recapitulate the context, s. 17 of the RDB Act provides that the DRT shall have jurisdiction to “entertain and decide applications from banks and financial institutions for recovery of debts due to such banks and financial institutions”. S. 18 ousts the jurisdiction of all courts except on writ jurisdiction to hear matters that form the subject of s. 17. Originally, the RDB Act did not contain any provision that allowed the borrower to raise a counter claim or set off. S. 19 of the Act was amended, and the law as it stands today allows a borrower to raise those issues as well. Consequently, some courts began holding that an independent suit may constitute a “counterclaim” for the purposes of s. 19 and is consequently liable to be transferred. 

The two main, and conflicting decisions on the point prior to Nahar were Indian Bank v. ABS Marine Products, (2006) 5 SCC 72 and SBI v. Ranjan Chemicals Ltd., (2007) 1 SCC 97. ABS Marine had held that an independent suit cannot be transferred without the consent of the borrower even if it inextricably connected with the bank’s suit and is in the nature of a counter claim. Ranjan Chemicals had held that the consent of the parties is not a limitation on the power of the court to order a transfer. 

In Nahar, the Supreme Court held that Ranjan Chemicals could not have departed from the law laid down in ABS Marine, as it was a decision of a coordinate Bench. The Court also seems to have accepted the argument that s. 31 of the DRT Act is exhaustive of the powers of transfer under the Act. Substantively, the Court agreed with the reasoning that a DRT is incapable of adjudicating complex issues of law and fact. It noted that a Tribunal that has the “trappings” of a court is not necessarily a court, and approved decisions that had held that the DRT is not a court. Moreover, the DRT cannot issue a decree, but only a recovery certificate. Although a DRT is empowered to take evidence in a detailed manner, the Court observed that its function is intended to make this the exception and not the rule. Thus, the position is that the DRT is not a civil court for the purposes of ss. 23, 24 and 25 of the CPC. Nor is it subordinate to the High Court. The following observations are apposite: 

“Concededly in the proceeding before the Debt Recovery Tribunal detailed examination; cross-examinations, provisions of the Evidence Act as also application of other provisions of the Code of Civil Procedure like interrogatories, discoveries of documents and admission need not be gone into. Taking recourse to such proceedings would be an exception. Entire focus of the proceedings before the Debt Recovery Tribunal centers round the legally recoverable dues of the bank… Under the Act, as it originally stood, did not even have any power to entertain a claim of set off or counter-claim. No independent proceedings can be initiated before it by a debtor. A debtor under the common law of contract as also in terms of the loan agreement may have an independent right. No forum has been created for endorsement of that right. Jurisdiction of a civil court as noticed hereinbefore is barred only in respect of the matters which strictly come within the purview of Section 17 thereof and not beyond the same. The Civil Court, therefore, will continue to have jurisdiction” [emphasis supplied]. 

The Court evolved two other important propositions. The first is the well-settled principle that a bar on the jurisdiction of the civil court is not to be readily inferred. The second, and more important, was the Court’s finding that since the right to appeal is a vested, statutory right by virtue of s. 96 of the CPC, the line of reasoning employed in Ranjan Chemicals would not only deprive the borrower of his right to sue, but also of his right to appeal.  

In sum, the Court has not only reached the correct conclusion, but also finally clarified the law on DRTs with a well-reasoned and authoritative judgment. Worries remain, however, that the judgment may be used by borrowers as a tool to stall the efficacy of DRTs. 
-

(3) Latest Cancer Information from John Hopkins  

Dr V.P. Bansal, M.B.B.S (Gold Medalist), M.D.(Allopathy),D.H.M.S.(Homoeopathy) from Indore Mobile: 91-9926020111 has sent the following useful information. Interestingly Mr Chauhan, the promoter of ‘New Diet System’ has already done pioneering work past more than 10 years and proposed that we should take only the raw natural products like fruits and vegetables when we are hungry. He termed milk as white poison. He came out with a remarkable suggestion of daily 6 hours fasting as soon as we wake up in the morning.  

LATEST CANCER INFORMATION
from Johns Hopkin

AFTER YEARS OF TELLING PEOPLE CHEMOTHERAPY IS THE ONLY WAY TO TRY AND ELIMINATE CANCER, JOHNS HOPKINS IS FINALLY STARTING TO TELL YOU THERE IS AN ALTERNATIVE WAY …


1. Every person has cancer cells in the body. These cancer cells do not show up in the standard tests until they have multiplied to a few billion. When doctors tell cancer patients that there are no more cancer cells in their bodies after treatment, it just means the tests are unable to detect the cancer cells because they have not reached the detectable size.

2. Cancer cells occur between 6 to more than 10 times in a person's lifetime.

3. When the person's immune system is strong the cancer cells will be destroyed and prevented from multiplying and forming tumors.

4. When a person has cancer it indicates the person has multiple nutritional deficiencies. These could be due to genetic, environmental, food and lifestyle factors.

5. To overcome the multiple nutritional deficiencies, changing diet and including supplements will strengthen the immune system.

6. Chemotherapy involves poisoning the rapidly-growing cancer cells and also destroys rapidly-growing healthy cells in the bone marrow, gastro-intestinal tract etc, and can cause organ damage, like liver, kidneys, heart, lungs etc.

7. Radiation while destroying cancer cells also burns, scars and damages healthy cells, tissues and organs.

8. Initial treatment with chemotherapy and radiation will often reduce tumor size. However prolonged use of chemotherapy and radiation do not result in more tumor destruction.

9. When the body has too much toxic burden from chemotherapy and radiation the immune system is either compromised or destroyed, hence the person can succumb to various kinds of infections and complications.

10. Chemotherapy and radiation can cause cancer cells to mutate and become resistant and difficult to destroy. Surgery can also cause cancer cells to spread to other sites.


11. An effective way to battle cancer is to STARVE the cancer cells by not feeding it with foods it needs to multiple.

What cancer cells feed on:

a. Sugar is a cancer-feeder. By cutting off sugar it cuts off one important food supply to the cancer cells. Note: Sugar substitutes like NutraSweet, Equal, Spoonful, etc are made with Aspartame and it is harmful. A better natural substitute would be Manuka honey or molasses but only in very small amounts. Table salt has a chemical added to make it white in colour. Better alternative is Bragg's aminos or sea salt.


b. Milk causes the body to produce mucus, especially in the gastro-intestinal tract. Cancer feeds on mucus. By cutting off milk and substituting with unsweetened soy milk, cancer cells will starved.

c. Cancer cells thrive in an acid environment. A meat-based diet is acidic and it is best to eat fish, and a little chicken rather than beef or pork. Meat also contains livestock antibiotics, growth hormones and parasites, which are all harmful, especially to people with cancer.

d. A diet made of 80% fresh vegetables and juice, whole grains, seeds, nuts and a little fruits help put the body into an alkaline environment. About 20% can be from cooked food including beans. Fresh vegetable juices provide live enzymes that are easily absorbed and reach down to cellular levels within 15 minutes t o nourish and enhance growth of healthy cells.

To obtain live enzymes for building healthy cells try and drink fresh vegetable juice (most vegetables including bean sprouts) and eat some raw vegetables 2 or 3 times a day. Enzymes are destroyed at temperatures of 104 degrees F (40 degrees C).

e. Avoid coffee, tea, and chocolate, which have high caffeine. Green tea is a better alternative and has cancer-fighting properties. Water--best to drink purified water, or filtered, to avoid known toxins and heavy metals in tap water. Distilled water is acidic, avoid it.

12. Meat protein is difficult to digest and requires a lot of digestive enzymes. Undigested meat remaining in the intestines will become putrified and leads to more toxic buildup.

13. Cancer cell walls have a tough protein covering. By refraining from or eating less meat it frees more enzymes to attack the protein walls of cancer cells and allows the body's killer cells to destroy the cancer cells.

14. Some supplements build up the immune system (IP6, Flor-ssence, Essiac, anti-oxidants, vitamins, minerals, EFAs etc.) to enable the body's own killer cells to destroy cancer cells. Other supplements like vitamin E are known to cause apoptosis, or programmed cell death, the body's normal method of disposing of damaged, unwanted, or unneeded cells.

15. Cancer is a disease of the mind, body, and spirit. A proactive and positive spirit will help the cancer warrior be a survivor.

Anger, unforgiving and bitterness put the body into a stressful and acidic environment. Learn to have a loving and forgiving spirit. Learn to relax and enjoy life.

16. Cancer cells cannot thrive in an oxygenated environment. Exercising daily, and deep breathing help to get more oxygen down to the cellular level. Oxygen therapy is another means employed to destroy cancer cells.

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Our Weekly Mails and DVDs are DRT Legal Guide and gold mine of practical information for the borrowers and guarantors - The mail recipient particularly Borrowers and Guarantors will be immensely benefited by our weekly mails and DVDs, all previous issues of weekly mails from 1st one till the last one may be viewed by clicking the links given at the top. Separate web pages have been created to contain these mails in batches of 10 so that pages open up fast. These mails are gold mine of information on current topics giving lot of practical suggestions and comments. Any new recipient to these mails must go through all the weekly mails right from the issue no 1 to the latest. If possible please spread the reference of our web site and the weekly mail among the persons, borrowers and guarantors who are the bank victims. If anyone desires to get these mails regularly, he may write to us for inclusion of his e-mail ID in the regular mailing list. The weekly mail is issued on every Friday. 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. This service is free in the best interest of society in general and litigant borrowers and guarantors in particular. We are getting huge no of mails appreciating our weekly mails. We welcome suggestions.

DRT Solutions Weekly Mail – 261^st Issue dated 10^th May ‘13

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

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(1) Important & Useful Judgment of the Supreme Court – DRTs even can go beyond CPC 

ICICI Ltd vs Grapco Industries Ltd decided on 14.05.99 by Supreme Court of India, Judges – D. P. Wadhwa & S. Sagir Ahmed, Case No : 3167 of 1999

Citations - 1999 (3) Scale 674 : 1999 (4) SCC 710 : 1999 (2) UJ(SC) 1010 : 1999 AIR(SCW) 1664 : 1999 AIR(SC) 1975 : 1999 (5) Supreme 547 : 1999 (3) JT 619

DRT Solutions Citation –  DRTS-012-ICICI vs Grapco-1999

                                                         http://www.drtsolutions.com/ICICI-Grapco.htm

(We have now numbered the Judgments published on this web site as DRTS-00.) Accordingly all the judgments published so far have been numbered. The judgment on this page is numbered as DRTS-012.

Comments by DRT Solutions

An Important Supreme Court Judgment laying down that DRTs can even go beyond CPC

(a)   The full text of the judgment is given below with important portions marked in Red vide linkhttp://www.drtsolutions.com/ICICI-Grapco.htm As per the Section 22 of the DRT Act, the DRT and DRAT shall not be bound by the procedure laid down by the CPC but shall be guided by the principles of natural justice. The general impression was that the CPC is not applicable in DRTs.

(b)   But as per this Supreme Court judgment, the DRTs can even go beyond CPC. Hence whenever our clients pointed out that the POs in DRTs were not permitting application of CPC, we cited this particular judgment to them. Since such queries have increased we have thought appropriate to publish the full text of the judgment as under with important portions marked in Red, which are self explanatory. The said Red portions from Para Nos   are reproduced below.

(c)   It is relevant to point out that the CPC is nothing but codification of the principles of natural justice. Hence in the interest of  justice and depending on the facts and circumstances, the DRTs will have to follow not only the CPC but as per the law laid down in this Supreme Court judgment, the DRTs can even travel beyond CPC.

Extract from  Para 7

“For all intent and purpose, an application (u/s 19 of the DRT Act) is like a plaint in civil suit and applicant would be plaintiff and respondent a defendant. The details which are required to be given in the application in substance conform to the requirements of a plaint under the Code of Civil Procedure. - - -it may perhaps be better to describe the applicant as a plaintiff, an application as a plaint and respondent as defendant.”

Extract from  Para 11

“When Section 22 of the Act says that the tribunal shall not be bound by the procedure laid by the Code of Civil Procedure, it does not mean that it will not have jurisdiction to exercise powers of a court as contained in the Code of Civil procedure. Rather, the tribunal can travel beyond the Code of Civil Procedure and the only fetter that is put on its powers is to observe the principles of natural justice.”

(2) Court Judgments – Important, Useful & Favourable to Borrowers & Guarantors  

We have so far published 12 important, useful and favourable judgments on our web site in full text with comments as well as important portions marked in Red. Many of our clients and their advocates have appreciated these valuable judgments. Encouraged by such feedback, we are adding one such judgment every week. Instant availability on our web site has proved a great utility and valuable instant resource for the practicing DRT advocate. The titles of the relevant web pages and URLs have been technically chosen in such a manner so that the search engines will rank the same for most easy search. Our citation i.e. DRTS-000-Names of Parties-Year of Decision also will make the referencing an easy and convenient task. We invite comments and suggestions for further improvements, if any.

(3) ‘DRT Solutions Weekly Mail’ will complete 5 Years on 16.05.13  

We published the following news item in our last weekly mail. Accordingly we have received lot of good wishes, appreciations and felicitations for successful completion of past 5 years of weekly mails. We profusely thank such readers.  

“We are glad to point out that on 16.05.13, our this ‘DRT Solutions Weekly Mail’ will complete 5 Years of uninterrupted and useful service to our readers and visitors of our web site. All the weekly mails right from issue no 1 to the latest are available on our web site free of costs. People have become addicted to our weekly mail. If there is any delay on any Friday, we get lot of phone calls and e-mails. We get lot of feedback and comments every week. Many persons come to us with complete print of all our mails with index. Many go on revising the previous weekly mails and they cite the same in their correspondence. People have liked the format with content on Lifestyle  and Health Topics. Now we embark our journey to next five years. The readers are requested to send their felicitations, good wishes, comments on the auspicious occasion of completing five years and looking ahead for next five years.”

(4) “The Seven Spiritual Laws of Success” by Deepak Chopra   

Mr Firoz Poonawalla has sent the following valuable information:-

‘The universal mind choreographs everything

that  is  happening in billions of galaxies with

elegant  precision  and unfaltering intelligence.’

The  Law of Pure Potentiality

The source of all creation is pure potentiality seeking

expression from being  unmanifest  to  manifest.

How do we bring  this law into effect in our life ?

By taking time to be silent, to just Be.

By sitting alone in silent meditation for  half

an hour in the morning and in the evening.

By taking time each day to commune with nature, silently. witness the intelligence within each living thing and

by enjoying the life throb of nature’s unbounded creativity

By being non-judgmental

The  Law of Giving

The universe operates through dynamic exchange…

giving and receiving are different aspects of the flow of

energy in the universe.

Our willingness to give that which we seek keeps the

abundance of the universe circulating in our lives.

How do bring this law into effect in our life ?

By  giving a gift to whoever we meet. It may be a flower

a compliment or a prayer…. This will begin the process

of circulating joy, wealth and affluence in our life and

in the life of others

By gratefully accept all the gifts that life has to offer . The sunlight, the song of birds, the monsoon rain….Also by receiving  gifts that others may offer, be it material gifts

a compliment or a prayer.

By making a commitment to keep wealth  circulating  by giving and receiving life’s most precious gifts,

of  caring, affection, appreciation and love and by silently

wishing  happiness  joy and laughter each time

we  meet  someone

The  Law  of Karma

Every action generates a force of energy that returns to us

in like kind. Our thoughts, our words and deeds are the thread of the net which we throw around ourselves

How do  we  bring  this  law into effect in our life ?

By  being  a  witness to the choices we make each moment

and  bringing  them to our conscious awareness.

By  asking  ourselves  ‘What are the consequences of this choice,  will this choice bring fulfillment and happiness to me and to those who are affected by it ?’

By  seeking  guidance and  being  guided by its

message of comfort or discomfort.

By considering the consequences of our actions or words and  making corrections if need be.

The  Law of  Least  Effort

Nature’s intelligence functions with effortless ease,

with  carefreeness,  harmony and love.

When we harness the forces of harmony, joy and love

we create success and good fortune with effortless ease.

How do we bring this law into effect in our life ?

By  accepting totally and completely people, situations, events and circumstances as they occur and to accept each moment as it is and not as we’d wish it to be.  .

By taking responsibility for those of our situations that we see as problems and not  blaming others or ourselves. Every problem is an opportunity in disguise and allows us to take the opportunity to transform it into a greater benefit

By relinquish the need to defend our point of view or to convince or persuade others to accept it. And yet to be open and consider other points of view.

The Law of Intention and Desire

Inherent in every intention and desire is the mechanism

for its fulfillment.

When we introduce an intention in the fertile ground of pure potentiality, we put this infinite organizing power to work for us.

How do we bring this law into effect in our life ?

By   making a list of our desires and by referring to this list before we begin our meditation, also by referring to it before going to sleep and on waking up.

By trusting and surrendering ourselves to creation when things don’t seem to go our way and to know that there is a reason for this. And that the cosmic plan has designs for us

greater  than  those we have conceived for ourselves

By keeping to the present moment with awareness and not  allowing  obstacles to  dissipate the quality of our intention and desires from being manifested.

The Law of Detachment

In  detachment  lies the wisdom of uncertainty and freedom from our past conditioning. This allows us to step into the unknown field of possibilities and to surrender ourselves to the creative mind of the universe.

How do we bring this law of into effect in our life ?

By committing to detachment we allow ourselves and others to be as they are, and not force solutions on problems  by creating new problems.

By willingly accepting uncertainty, solutions spontaneously emerge to our problems of confusion and disorder.

By being open to all possibilities, we experience the joy, adventure and the mystery of life.

The Law of Purpose of Life

Every one has a purpose in life….it may be a special gift…

a special talent…..when we blend this gift or talent with others and for others, we experience exultation of our spirit.

This is our ultimate goal and the reason for our being in a  physical form.

How do we bring  this  law into effect in our life?

By  nurturing the deep stillness within ourselves that will awaken our mind to the consciousness of eternal timelessness midst of time-bound experiences.

By  expressing  our talents and  using them for  humanity, we  create abundance in our life and in the life of others.

By asking ourselves daily ‘How can  I serve ? ‘  and ‘How can I help?’ The answer to these questions will allow us

to serve and help our fellow human beings with love.

 These pages are from                          

The Seven Spiritual Laws of Success  By Deepak Chopra.

 I have condensed the book of a hundred pages to eight,

 in the hope that  this will  motivate the reader  [by this I

 also mean my family] to read the original. Enjoy.

DRT Solutions Weekly Mail – 260^th Issue dated 3^rd May ‘13

All Weekly mails right from 1^st Issue to latest, click links on top of this page

(1) Important & Useful Judgment of the Supreme Court – Counter-claim can be filed even after filing of WS  

Full text of this important judgment with comments and important portion given in red may be seen vide link http://www.drtsolutions.com/Mahendra-MP.htm  Details are as under:- 

DRT Solutions Weekly Mail – 259^th Issue dated 26^th April ‘13

All Weekly mails right from 1^st Issue to latest, click links on top of this page

1) Important & Useful Judgment of the Supreme Court – Discovery, Production and Inspection of Documents 

H.L. Sethi vs R.P. Kapur decided on 19.07.72 by Supreme Court of India, Judges – K.K. Mathew & P. Jaganmohan Reddy, Case No : 665(n) of 19721

Citations - 1972 (2) SCC 427 : 1973 (1) SCR 697 : 1972 AIR(SC) 2379 : 1972 Legal Eagle 320

DRT Solutions Citation –  DRTS-010-Sethi vs Kapur-SC-1972

                                                           http://www.drtsolutions.com/Sethi-Kapur.htm

(We have now numbered the Judgments published on this web site as DRTS-00.) Accordingly all the judgments published so far have been numbered. The judgment on this page is numbered as DRTS-010.

Comments by DRT Solutions

An Important Supreme Court Judgment relating to Discovery, Production and Inspection of the Documents

(a)   The full text of the judgment is given on our web site vide link http://www.drtsolutions.com/Sethi-Kapur.htm with important portion marked in Red.

(b)   This is one of the most important SC Judgments relating to the documents.

(c)   All the bank litigations are based on documents. Hence discovery of all the material documents is most essential pre-requisite of the bank litigations. In this connection the following extract from this judgment are quite relevant.

(d)   Extract from Para 5:-

If a party wants inspection of documents in the possession of the opposite party, he cannot inspect them unless the other party produces them. The party wanting inspection must, therefore, call upon the opposite party to produce the document.

(e)   Another extract from Para 5:-

When the Court makes an order for discovery under the rule, the opposite party is bound to make an affidavit of documents and if he fails to do so, he will be subject to the penalties specified in Rule 21 of Order 11. An affidavit of documents shall set forth all the documents which are, or have been in his possession or power relating to the matter in question in the proceedings. And as to the documents which are not, but have been in his possession or power, he must state what has become of them and in whose possession they are, in order that the opposite party may be enabled to get production from the persons who have possession of them (see Form No. 5 in Appendix C of the Civil Procedure Code). After he has disclosed the documents by the affidavit, he may be required to produce for inspection such of the documents as he is in possession of and as are relevant.

(f)    Extract from Para 5:-

The documents sought to be discovered need not be admissible in evidence in the enquiry or proceedings. It is sufficient if the documents would be relevant for the purpose of throwing light on the matter in controversy. Every document which will throw any light on the case is a document relating to a matter in dispute in the proceedings, though it might not be admissible in evidence. In other words, a document might be inadmissible in evidence yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary's case or which may lead to a trial of enquiry which may have either of these two consequences

(g)   If the advocate of the borrower has proper knowledge and adequate experience of trial and is well versed with material facts relating to the banking, industry and finance and perfect pleadings of the counter-claim has been made, no bank can win its recovery case as there are lot of wrong doings committed by the banks. Under such facts and circumstances, this particular judgment will be immensely useful.

(2) Strategy & Planning Borrowers’ Litigation in DRTs  

Our observations and views are as under:-

(a)   Right from inception since the entrepreneurs were not having adequate finance and therefore they approached the banks for financial assistance.

(b)   The banks are mammoth organizations having hundreds of branches and thousands of employees. Most of the big banks are in existence for more than 50 years and hence they have huge financial resources and long experience. They have well established law departments headed by General Manager(Law) The financial liquidity is also high due to CRR prescribed by the RBI.

(c)   Compared with the banks, the borrowers are too small with virtually no knowledge of banking and law. Their financial resources are also too small compared with the banks. Further the said financial resources are already tied up and deployed with very small liquidity.  

(d)   On account of many external factors which may be beyond control, the business becomes sick and the liquidity becomes negative. Under such financial problems, the banks instead of helping, apply pressure for recovery. The borrower may not have even funds for survival leave alone for legal fight.

(e)   The advocates of the borrowers must keep in mind above facts and circumstances while making strategy and planning the litigation in DRTs.

(f)    The case must be reviewed at least 7 days in advance of the date. One should plan if there is any adverse happening on the ensuing date.

(g)   Whatever happens on the date, plan must be prepared on the said date itself.

(h)   Since most of the environment is against the borrower, greater effort and hard work is required.

(i)    The pleadings should be perfect.

(j)    In most of the cases, the replies by the banks are only simple denials. Hence right from the beginning preparations should be made for such denials.

(k)   Despite orders of the Supreme Court more than past 15 years, the bank lobby is not allowing transfer of the DRTs from Ministry of Finance to Ministry of Law. Hence most of the POs and Recovery Officers are being appointed and posted out of bank officials. Further it is against Law that Ministry of Finance is holding regular meetings with the said POs to expedite recovery. All such activities by Ministry of Finance amounts to wrong doings being against the principles of natural justice.

(l)    Under the above biased environment, the advocates of the borrowers have to be more vigilant and alert. As soon as any order is issued, it should be thoroughly examined. If there is any scope for Review, review must be planned. One has to plan the Appeal also so that just after Review, Appeal is filed within the limitations. We have dealt with this aspect in several weekly mails e.g. 1^st to 8^th  (17.05.08 to 04.07.08), 21^st to 30^th, 31^st to 40^thand thereafter.

(m) As per law, Review must be filed first and then Appeal should be filed. The law on the subject was settled as early as 1909 vide exhaustive details given in AIR 1948 Allahabad 353. Both proceedings may go on simultaneously. As soon as there is any final order, the other may be discontinued. Further steps be planned after the said final order.

(n)   The counter-claim is the suit filed by the borrower. It should be handled by knowledgeable and experienced Trial Lawyer who has personally handled several trial relating to the bank litigations.

(o)   We observed that the DRT Advocates are quite busy and mostly are not having experience and knowledge of trial, we had no option but to empower the borrower litigants so that he emphasizes all important aspects to his advocate.

(p)   With the above approach several of our clients have achieved success in DRTs and the wrong doer lenders have been forced either to settle even at 5% to 20% of the debt due or they are fighting a losing battle in the appellate court.

(q)   We have found that much will depend as to how thoroughly the counter-claims are fought in DRTs. That will depend on knowledgeable and experience trial lawyers. There is no other option or short cut.

(3) Co-Op Banks can’t Act under Securitization Law’  

The following news item is self explanatory:-

Co-op banks can't act under securitization law'

TNN Apr 23, 2013, 05.36AM IST

http://articles.timesofindia.indiatimes.com/2013-04-23/ahmedabad/38762537_1_cooperative-banks-co-operative-banks-masoom-shah 

AHMEDABAD: To recover debts, co-operative banks cannot seize property or take its possession according to the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act. That was the ruling of the Gujarat high court on Monday.

Advocate in this case, Masoom Shah, said that the division bench of the Gujarat HC has overruled judgments issued by various high courts of Kerala, Bombay, Madras, Karnataka, Madhya Pradesh, Punjab and Haryana. All these HCs had declared the scheme as legal, but the Gujarat HC's division bench relied on the Supreme Court's judgment in the matter of Greater Bombay Co-operative Bank versus United Yarn Pvt Ltd. The division bench also declared the Centre's notification issued on January 28, 2003, bringing cooperative societies and banks under the purview of the act as void. It held that securitization act would not be applicable to cooperative banks because it would contradict Banking Regulation Act, 1949. The petitioners, who had defaulted on repayment of loans from various cooperative banks in the state, were facing notices from banks under the securitization act, and the possibility of seizure of properties.

(4) Healthy & Disease Free Life through Natural Raw Diet  

Mr  B.V. Chauhan, B.E.(Electrical), Retd SE (Gujrat Electricity Board) has come out with a revolutionary approach to Healthy and Disease Free Life through Natural Raw Diet. The details may be seen from his web sitehttp://www.newdiet4health.org/  The beauty is that several Allopathic Doctors (M.D., Cardiologists, ex-Dean,Hospital etc) have cured their own diseases. These doctors are presenting the books of Mr Chauhan to their patients.

His  first Hindi Book ‘Prakritik Apakva Ahar se Nirogi Jeevan’ was gifted to me by our family doctor. 

This book is available from ‘Shri Ram Kutir, Ganesh Society, Chittal Road, Amreli-365601 (Gujrat) Phone No 02792-226869.

The contact details of Mr Chauhan are as under:-

E-mail : balubhaic@gmail.com   balu1946aml@gmail.com

Phone : 02792-226869 ; 9426127255

DRT Solutions Weekly Mail – 258^th Issue dated 19^th April ‘13

All Weekly mails right from 1^st Issue to latest, click links on top of this page

(1) Important & Useful Judgment of Kerala High Court – Bank’s Application u/s 14 to Magistrate, Appealable  u/s 17 to DRT 

Sami vs Bank of India decided on 22.07.11 by Kerala High Court, Judge – S. Siri Jagan, Full text of the judgment with our comments and important portion marked in Red may be seen by clicking the link http://www.drtsolutions.com/Magistrate-Appeal.htm

Our Comments

Past several years we have been advising our clients to file caveat with the Magistrate and as soon as the bank approaches Magistrate, appeal u/s 17 be filed before DRT. This Kerala judgment has supported our line of thinking. Important portion marked in Red are self explanatory

The concept and approach in this judgment can be further extended. The moment there is any threat for taking possession and or disposal of the property such as initiating sale or auction, we should approach to the DRT u/s 17. In this context one must set up counter-claim which must include loss and damages. We have found that the said loss and damages are much more than the claim of the bank resulting into ‘No Debt Due’ Hence until and unless ‘No Debt Due’ is finally decided by the adjudicatory process, no recovery action can be initiated leave alone proceeding with.

(2) “Garbage Menace” – Your Little Effort can do Wonders 

Mr Rajesh Jain M – 08427931111 and L - 01613966399, one of our clients from Ludhiana has sent us his following valuable article:-

“GARBAGE MENACE”- YOUR LITTLE EFFORT CAN DO WONDERS

We all are facing one serious problem of Garbage. We all are contributors to this problem and blame local municipality as they are responsible to solve this problem. The garbage piles are taking shapes of mountains if you enter Delhi from Karnal side you can see those mountains, almost whole outskirts of Delhi or any metro city is being developed on such type of landfills. The future generations is going to occupy the land i.e our children.

Have you ever thought how can we minimise this problem? Have you tried to take a note what is there in garbage? You will never have courage to stop near the garbage dump and like to have a closer look while passing near to it, because it stinks and is surrounded by flies, mosquitoes and harmful bacteria.

But let me tell give you the idea. Industrial waste+ Institutional waste like Hospitals etc. They are controlled by regulatory bodies but the major contributor is house hold garbage, which is uncontrolled?

 Our house hold garbage consists of: Mainly Kitchen waste & polythene bags, plastics, metals, non metals, boxes and paper etc.

How we can do it ?

Kitchen waste, which stinks within no time and you want to get rid of it as soon as possible, Go ahead! No one stops you........... 

Stop! Stop!  Why are you mixing it with other wastes which are not troubling you as it is not stinking and will not decompose for years?  WHY DISPOSE EVERYDAY?

Why not keep it separate and collect it in a big jute bag to be kept in the rear of the house. Dispose when it is full by donating it to some rag pickers who makes his living out of it, at the same time reducing his effort and avoiding his exposure to unhealthy working conditions (I see mainly young girls or boys not even 13 in this category). But it will not be wise for him or for you to collect the smaller lots; it has to be considerable quantity so that next time he will come knocking at your door asking for the collection. I am very much against child labour or this type job and I do not promote it, our country is big and there are too many unemployed, however this will be temporary arrangement since there is no such agency so far which does collect this type of recyclable materials like in developed nations where you will be charged for the service.

 Our main culprit in our garbage dumps is polythene bags, plastics, metals, non metals, boxes and paper which is almost two third of the whole pile, it will be easy for the municipality to handle the rest of garbage efficiently.

However  if you are really ENVIRONMENTALIST then kitchen waste also no need to throw just like that you can convert it to VERMICOMPOST. Which is a very good fertilizer for your lawns or flowerpots?

If his message can go to each and every house by NGO’s, Schools, colleges or by social networking

It will do wonders and save lot of National wealth going down the drain or in landfills and creating Garbage Menace.

My own House model to save environment is as below:

( My house can be visited to demonstrate to enthusiastic. )

SOLID WASTE:

·  Total kitchen waste+ Garden waste I convert into vermi-compost, I have a pit of 2’x 8’ in my backyard (really it does not stink at all) the fertilizer is used for organic vegetables + lawns.

·  Plastics of all types + all others, I keep in a Jute bag to be disposed every fortnight, believe me it was a real help to our domestic helpers, who were reluctant to so in the beginning, but it is easy for them now, and to the rag picker too, who in kind keeps our area free from poly bags thrown by unknown persons, as we deliver him only on this condition. 

WATER DISPOSAL:

·  Bath rooms+ kitchen+ rain water is collected in a tank which we use for kitchen garden and lawns by pumping.

·  I have separated toilet disposal to a septic tank and then to soak pit.

ELECTRICITY SAVINGS:

·  I have installed solar water heater , we explore all the possibilities to make use of this free heat

·  We use for bathrooms No geysers.

·  We use preheated water in kitchen.

·  We have washing machine with two water inlets hot and cold, hot one is connected to solar water heater.

·  We have LED and CFLs

·  We use Fans+ Air coolers for APR –MAY-JUNE

·  Air conditioners with their outer units are placed in shade and in well air circulated area so that maximum efficiency is obtained as compared to the one placed in the Sun or where air circulation is minimum.

GAS SAVINGS:

I have traditional fire place (Chullah) in backyard to take care of wood logs and very small paper and other non plastic materials, which can be recycled, but I am afraid that rag pickers will collect from us and throw at some other place, so to avoid that it is better to produce heat for domestic purposes like water heating etc as LPG is becoming costlier, may be it will save fraction of money , but more important is proper disposal. About ash being produced , we use again on our vegetables it has double action , it protects from pests as well as it acts as a fertilizer.

GREEN BUILDING: 

·  I have made my house using “VASTU” which makes best utilization of Sunlight and Air, hollow walls in South and west, maximum windows and doors in North and east, thus saving on Electricity on account of Light and air-conditioning as you will require very less.

·  It has health benefits, thus you save on medicals also.

·  I have planted Appox 50 fruit bearing trees and climbers in the south which gives you fruit as well protects you from harsh effects of SUN.

·  I have painted my house and roof top in white, so that minimum heat is absorbed from SUN, and is reflected outwards.

·  I am waiting for Photo Voltaic panels to be cheaper and efficient to clad my house from SOUTH/WEST and top to generate electricity for our use.

(3) The Brick 

Mr  Dinesh Kakkad from Jalagaon has sent the following beautiful piece:-

THE 
BRICK 

A young and successful 
executive was traveling down a neighborhood street, 
going a bit too fast in his new Jaguar. He was 
watching for kids darting out from between parked 
cars and slowed down when he thought he saw 
something. 

As his car passed, no children appeared. 
Instead, a brick smashed into the Jag's side door! 
He slammed on the brakes and backed the Jag back to 
the spot where the brick had been thrown. 

The angry 
driver then jumped out of the 
car, grabbed the nearest kid and pushed him up 
against a parked car shouting, 

'What was that all about and who are you? Just what 
the heck are you doing? That's a new car and that 
brick you threw is going to cost a lot of money. Why 
did you do it?' The young boy was apologetic. 
'Please, mister...please, I'm sorry but I didn't 
know what else to do,' He pleaded. 'I threw the 
brick because no one else would stop....' With tears 
dripping down his face and off his chin, the youth 
pointed to a spot just around a parked car. 'It's my 
brother, 'he said 'He rolled off the curb and fell 
out of his wheelchair and I can't lift him 
up.' 

Now sobbing, the boy 
asked the stunned executive, 'Would you please help 
me get him back into his wheelchair? He's hurt and 
he's too heavy for me.' 

Moved beyond words, 
the driver tried to swallow the rapidly swelling 
lump in his throat... He hurriedly lifted the
handicapped boy back into the wheelchair, then took 
out a linen handkerchief and dabbed at the fresh 
scrapes and cuts. A quick look told him everything 
was going to be okay. 'Thank you and may God bless 
you,' the grateful child told the stranger. Too 
shook up for words, the man simply watched the boy! 
push his wheelchair-bound brother down the sidewalk 
toward their home. 

It was a long, slow 
walk back to the Jaguar. The damage was very
noticeable, but the driver never bothered to repair
the dented side door. He kept the dent there to 
remind him of this message: 'Don't go through life 
so fast that someone has to throw a brick at you to 
get your attention!' God whispers in our souls and 
speaks to our hearts Sometimes when we don't have 
time to listen, He has to throw a brick at us. It's 
our choice to listen or 
not. 

Thought for the 
Day: 

If God had a 
refrigerator, your picture would be on 
it. 

If He had a wallet, 
your photo would be in 
it. 

He sends you flowers 
every spring. 

He sends you a sunrise 
every morning Face it, friend - He is crazy about 
you! 

Send this to every 
'beautiful person' you wish to 
bless. 

---------------------------------------------------------------------------------------------------------------------------------------- 

Our Weekly Mails and DVDs are DRT Legal Guide and gold mine of practical information for the borrowers and guarantors - The mail recipient particularly Borrowers and Guarantors will be immensely benefited by our weekly mails and DVDs, all previous issues of weekly mails from 1st one till the last one may be viewed by clicking the links given at the top. Separate web pages have been created to contain these mails in batches of 10 so that pages open up fast. These mails are gold mine of information on current topics giving lot of practical suggestions and comments. Any new recipient to these mails must go through all the weekly mails right from the issue no 1 to the latest. If possible please spread the reference of our web site and the weekly mail among the persons, borrowers and guarantors who are the bank victims. If anyone desires to get these mails regularly, he may write to us for inclusion of his e-mail ID in the regular mailing list. The weekly mail is issued on every Friday. 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. This service is free in the best interest of society in general and litigant borrowers and guarantors in particular. We are getting huge no of mails appreciating our weekly mails. We welcome suggestions.

DRT Solutions Weekly Mail – 257^th Issue dated 12^th April ‘13

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

Weekly Mails - 1-10  11-20  21-30  31-40  41-50  51-60  61-70  71-80 81-90 91-100 101-110 111-120 121-130 131-140 141-150 151-160 161-170 171-180 181-190 191-200 201-210 211-220 221-230 231-240 241-250 251-Latest
 

(1) Important & Useful Judgment of SC - Points Pressed during Arguments have to be dealt with in the Judgment/Order

Following is the extract from our web page vide link

http://www.drtsolutions.com/DRT-Judgments.htm

Mohd. Akram Ansari vs Chief Election Officer & Others decided on 04.12.07 by Supreme Court of India, Judges – A.K. Mathur & Markandey Katju, Civil Appeal No 4981 of 2006 with Civil Appeal No 5828 of 2006

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

Comments by DRT Solutions

The full text of the judgment is given vide link http://www.drtsolutions.com/Points-Pressed.htm with important portion marked in Red. It is a common experience of the advocates that many points pressed during the arguments are not dealt with by the Judge in the judgment/order. When it is felt that such a thing is going to happen, this judgment will be of immense use. This judgment be placed before the Judge requesting him to deal with all the points pressed in the ensuing arguments. If he does not do, an application be submitted to include the said points. Following extract from Para 14 is self explanatory.

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

(2) Favourable and & Useful DRT Judgments for Borrowers and Guarantor- As a result ranking of our web site in ‘Google India’ for search ‘Weekly Mail’ is top among 553,000,000 results    

Following is the extract from our web page vide link

http://www.drtsolutions.com/DRT-Judgments.htm

Consequent on our weekly issue of favourable and useful DRT judgments for borrowers and guarantors, we have received numerous response and appreciation from not only the mail recipients but  from several unknown persons. As a result the ranking of our web site in the search word ‘Weekly Mail’ has gone so high that the same in ‘Google India’ is now top among 553,000,000 entries. This shows and proves tremendous popularity of our weekly mails.

We shall continue publishing at least one such judgment every week. We need your feedback. The recipients have liked the format. Easy and free of cost availability of full text of such important and useful judgments with comments as well as important portion marked in Red have boosted the value of such cyber publication. For quick and instant availability, we have allotted exclusive separate page for each of the judgments.

So far we have published full text of the following judgments (with comments and important portions marked in Red) which are favourable and useful to the borrowers and guarantors:-

The borrowers and their advocates must adopt and use most modern technology in DRTs and DRATs. This will help a lot when e-governance is introduced in these courts. We are abreast with all the aspects of such technology and have already been covering relevant factors. It is needless to mention that we had developed the technology of ‘Video Arguments’ as early as 2007, demonstrated before DJ Indore in 2007, covered the same in DRT Conference in 2008, sent proposal to the Supreme Court in 2009 etc.

(3) Beware loan defaulters! Banks to publish photos in newspapers

Mr. N.K. Sharma, ex-GM(Law) and our Associate has sent the following news item:-

http://economictimes.indiatimes.com/news/news-by-industry/banking/finance/banking/beware-loan-defaulters-banks-to-publish-photos-in-newspapers/articleshow/18891218.cms?intenttarget=no

 10 MAR, 2013, 02.38PM IST, PTI 

Beware loan defaulters! Banks to publish photos in newspapers

Some banks have also decided to prominently display the photographs and other details of the wilful loan defaulters at branches in the locality of such borrowers, a senior executive with a leading bank said. 

Taking the lead, State Bank of India has begun publishing photographs and other particulars of such defaulters and has published one such public notice in newspapers for five defaulters in the national capital. 

These persons had taken export credit loans of Rs three lakh each and their outstanding amounts were in the range of Rs 2.6 lakh to Rs 2.93 lakh. 

Executives at many other banks said that they would also publish the photographs and other details of their wilful defaulters in local newspapers circulated in areas of residence of such persons. 

As per RBI's regulations, wilful defaulters are mostly those who are found to be engaged in deliberate non-payment of dues despite adequate cash flow and good networth. 

Besides, banks can also classify defaulters as 'wilful' if the loans are utilised for purposes other than those previously stated, funds are siphoned off from the bank-financed activity, records are falsified, securities are disposed of without bank's knowledge and the borrower indulges in fraudulent transactions. 

RBI has already put in place a system to disseminate credit information pertaining to wilful defaulters for cautioning banks and financial institutions, so that any further bank finance is not made available to such borrowers. 

Now, banks have decided to make public the photographs and other details of wilful loan defaulters through newspaper notices, so that such borrowers clear their dues. Besides, banks also expect such notices to act as a deterrent for others against any loan defaults. 

In one such notice, SBI said that names and photographs of the guarantors of those defaulters would be published in newspapers if these borrowers do not clear their dues within 15 days of the publication of notice. 

The bank also warned other defaulters that "their photograph may be the next to be published after completion of necessary formalities, if the dues are not cleared immediately". 

RBI has also asked Credit Information Bureau India Ltd (CIBIL) to publish a list of wilful defaulters involving defaults of Rs 25 lakh and above.

The above will be possible only when the banks have acted legally without any violation of law otherwise they will be held responsible for defamation, civil as well as criminal.

(4) Are We going to Learn?

Mr. Firoz Poonawalla has sent the following valuable information:-

Are we going to learn?

Plz Read this beautiful Information about Japan. This is how nations are built: 

1 - Do you know that Japanese children clean their schools every day for a
quarter of an hour with teachers, which... led to the emergence of a
Japanese generation who is modest and keen on cleanliness.

2 - Do you know that any Japanese citizen who has a dog must carry bag and
special bags to pick up dog droppings. Hygiene and their eagerness to address cleanliness is part of Japanese ethics.

3 - Do you know that hygiene worker in Japan is called "health engineer" and can command salary of USD 5000 to 8000 per month, and a cleaner is subjected to written and oral tests!!

4 - Do you know that Japan does not have any natural resources, and is exposed to many earthquakes in a year, but these things do not prevent her from becoming the second largest economy in the world?

5 - Do you know that Hiroshima returned to what it was economically vibrant
before the fall of the atomic bomb in just ten years?

6 - Do you know that Japan prevents the use of mobile in trains & restaurants.

7 - Do you know that in Japan students from the first to sixth primary year
must learn ethics in dealing with people.

8 - Do you know that the Japanese even though one of the richest people in
the world, do not keep servants. The parents are responsible for the house and children.

9 - Do you know that there is no examination from the first to the third
primary level; because the goal of education is to instill concepts and
character building, not just examination and indoctrination.

10 - Do you know that if you go to a buffet restaurant in Japan you will
notice people only eat as much as they need without any waste. No wasteful
food.

11 - Do you know that the rate of delayed trains in Japan is about 7
seconds per year!! They appreciate the value of time, are very punctual to
minutes and seconds.

12 -. Do you know that children, brush their teeth after every meal at school; They maintain their health from an early age.

13 - Do you know that the students take half an hour to finish their meals to
ensure right digestion When asked about this concern, they said: These
students are the future of Japan.

DRT Solutions Weekly Mail – 252^nd Issue dated 8^th March ‘13

All Weekly mails right from 1^st Issue to latest, click links on top of this page

(1) DRT Judgments Favourable to Borrowers and Guarantors – Now Full text of such Judgments will be provided on our Web Site with Important Portions marked in Red  

Following is the extract from our web page vide link  DRT Judgments Favourable / Useful to Borrowers

We have been providing citations and extracts of judgments favourable / useful to Borrowers and Guarantors. Subsequently several borrowers approached us to provide the full text of the said judgments. Hence we have now decided to provide full texts of such judgments on our web site itself. Since the advocates are quite busy in their routine work, we shall mark the important portion of such judgments in Red. Thus with passage of time, a library of important judgments with full text in soft copies and important portions marked in Red will be built up on the internet at our web site. The borrowers should go through such judgments periodically and apprise their advocates. It is needless to mention that such valuable information is free of cost in the best interests of borrowers and guarantors. You may therefore spread the word among the litigant borrowers, guarantors and their advocates to visit the above link periodically. If one finds such judgments, he may mail the full text of such judgment for publication on our web site
 

(2) Condonation of Delay – Important Judgment of Bombay High Court

Following is the extract from our web page vide link DRT Judgments Favourable / Useful to Borrowers 

We have been opining past several years that the Law of Limitation in respect of condonation of delay is also applicable in DRTs though there have been several contradictory judgments of various High Courts.

Finally the Bombay High Court vide citation [2013 (1) DRTC 162  (Bom)] in the matter of Manilal Govindji Khona vs Indian Bank has passed an important judgment on 29.08.12. Full text of the judgment may be seen by clicking the link http://www.drtsolutions.com/condonation_delay.htm

(3) Tablet Use – Precautions for Health Impacts

We are now making greater use of tablets in our day to day life. This new gadget requires lot of precautions from health point of view. The following study will be quite useful. It is interesting to note that I mostly use the tablet for reading and study while standing and walking to avoid sitting. Such application is not covered by the following study but however one can derive the precautions.

Study: Tablet Use Causes Significant Head and Neck Flexion

March 1, 2013 

By Gene Kay, MS CEA

This article is reprinted with permission from The Ergonomics Report™ Archives, where it originally appeared on February 22, 2012.

A recent study by the Harvard School of Public Health and Microsoft Corporation looked at the head and neck postures typical of tablet computer users. Tablet computers with touch screen displays such as the iPad are becoming increasingly common with Apple selling some 45 million iPads in 2011 --taking approximately 15% of the total PC market. Tablet computers are expected to continue growing in popularity with projections for them to grow to 300 million units per year and taking 60% of the total PC market by 2015, therefore understanding the ergonomics associated with these portable computers is a concern for ergonomists.

Back to the future:

Because the input and display are integrated into one unit, the postures and biomechanics of touch screen computers are closer to working with pen and paper than with a desktop computer. The desktop computer, and even the laptop computer, provide separate input and output interfaces (keyboard separate from display).  Having separate keyboard, mouse and display generally allows a more upright posture of the head and neck as compared to tablet computer use.  The human-computer-interaction for touch screen tablet computers is different than for the traditional desktop computer.

The authors of this study note: “posture guidelines for traditional computing have been addressed by ergonomics and MSD standards such as the ISO-9241, ANSI/HFES 100, DSE Regulations and others.  However the newer technology devices have not been adequately represented in these standards.  Therefore this study is an important step in identifying and quantifying the postural demands of tablet computer use.”

This Study:

Because computer work has been and continues to be associated with discomfort and pain in the neck and shoulders. Many studies have investigated how display/ monitor positioning affects neck and shoulder posture and muscle activity.  Higher displays lead to decreased head and neck flexion that approaches neutral postures; lower gaze angles lead to increased neck extensor muscle activity. Excessive head flexion leads to large muscle loads and strains. Therefore, it is generally hypothesized that very low monitors may increase the risk of neck and shoulder discomfort or MSDs.
 
This research aims to study the head and neck postures for various user configurations commonly observed during typical tablet computer use and how neck and head posture varies with different tablets and their case designs with different tilt angle settings.

Methods:

Subjects: 15 tablet computer users were fitted with 3-dimensional kinematic instruments that accurately measured various head, neck, and visual parameters while the subjects performed a series of computing, gaming, and media tasks.  All of the test subjects were adults experienced in the use of tablet computers. 

Test Conditions: All of the tablet tasks were performed while seated in a lounge-style chair with no armrests and a reclined back angle.  The seat height was 44 cm/ 17” high, and subjects also had an ottoman-style footrest (40 cm/ 15” high) that could be used if desired. The third piece of furniture was a small table to be used for the media-viewing task.

Tablet Computers:

Two media tablet computers were used; an Apple iPad2 and a Motorola Xoom (Both were similar in size, with the iPad measuring 241 X 185 X 9 mm/ 9.5 X 7.25 X .35 inch and mass of 601 g/ 1.3 lbs. and the Xoom being slightly smaller and heavier).

Each device was tested in the landscape orientation.

Each table utilized a proprietary case that could be fitted to the device and adjusted to prop up or tilt the tablet computer.  The Apple case allowed for tilt angles of 15 and 73 degrees. The Motorola case allows for tilt angles of 45 and 63 degrees.

Test Conditions:
Four user conditions were analyzed. These included

Biomechanical Outcomes:

The researchers measured various head and neck postures including:

Results and Conclusions (from the study):

1. The use of tablet computers is associated with high head and neck flexion postures, especially compared to the postures observed in typical desktop or even laptop computer scenarios.
2. Overall, for both tablets, Head and neck flexion was quite large and 15 - 25 degrees beyond "neutral" head and neck posture when working with the tablet in the lap and when hand-held.
3. The postures observed are affected by the type of case used to support the device, as well as the location of the device (e.g. lap vs table).  For example, the iPad case had a lower tilt and resulted in more neck and head flexion as compared to the Xoom case.
4. The results suggest that head and neck posture can be improved  through case designs that allow for optimal viewing angles and by elevating the device and avoiding lap-level locations.

What this means for the ergonomics practitioner:

When providing ergonomic advice for tablet computer users we need to consider how the device is used, we need to consider the "work" environment, and we need to take a systems approach to ensure that we don't optimize for one function and cause problems in another area.

Tablet computers can be used to consume content such as when reading or viewing a video, and they can be used to create content such as when inputting text or other media. Consuming and creating each place different demands on the user and may require different placement configurations depending on the duration, frequency, and importance of the task.

If the device is used primarily to consume media such as viewing video or reading web pages, then we want to optimize position for viewing. This means: 

If the device is primarily being used to create or input content, then we need to balance the positioning to accommodate the visual system and the hand/wrist/ arm.  

 Reference

Justin Young, Matthieu Trudeau, Dan Odell, KIm Marinelli, and Jack Dennerlein, "Touch-screen tablet user configurations and case-supported tilt affect head and neck flexion angles," Work: A Journal of Prevention, Assessment and Rehabilitation, Volume 41, Number 1, 2012.

At the time this review was written the article was available free of charge from:

http://iospress.metapress.com/content/x668002xv6211041/?p=050150d6183f493fb44901789996e5b2&pi=0

About the reviewer: Gene Kay MS, CEA is a work physiologist and a BCPE Certified Ergonomics Associate. He is a former Global Ergonomics Manager, a former Rehab Services Manager, the Past President of the Upper Midwest HFES, and is the owner and developer of the ErgoAdvocate on-line training program.

DRT Solutions Weekly Mail – 251^st Issue dated 1^st March ‘13

All Weekly mails right from 1^st Issue to latest, click links on top of this page

(1) Video Recording of Proceedings – Supreme Court to Examine

Following is the extract from our web page vide link

http://www.drtsolutions.com/securitisation_securitization_SARFAESI_SA_Act.htm

Mr. N.K. Sharma, ex-GM (Law) and our Associate has sent the following important news item:

SUPREME COURT TO EXAMINE PROPOSAL FOR VIDEO RECORDING OF PROCEEDINGS

http://www.linkedin.com/groups/SUPREME-COURT-EXAMINE-PROPOSAL-VIDEO-4396573.S.215801125?view=&srchtype=discussedNews&gid=4396573&item=215801125&type=member&trk=eml-anet_dig-b_nd-pst_ttle-hdp&ut=2OnNZK5w5KiRE1 

The Supreme Court has agreed to examine a proposal for video-recording court proceedings to ensure transparency as well as cut down delays in disposal of cases. It was submitted before a Bench, headed by Justice D.K. Jain, by counsel Indira Unninayar, appearing for the Janhit Manch along with counsel Prashant Bhushan. At present court proceedings are largely not recorded, and if recorded, are summarized by way of orders by the presiding officers/judges. In 2008, the Janhit Manch, Common Cause, Ravi Goenka, a chartered accountant and the Lok Sewak Sangathan filed a writ petition highlighting systemic delays in the judiciary: lack of proper management, inadequate judge strength and infrastructure, including a very limited budget allocation of 0.2 percent even though justice is guaranteed under Article 21 of the Constitution. Besides the Union of India, all the States and Union territories are listed as respondents. Though the case was listed several times, it was only last week that the Bench asked the petitioners to submit a proposal as to the practice prevalent in other countries. In these submissions, the petitioners said: "Through videography, which is cheap (Rs. 100 per litigant), the opacity in the system and delays will reduce considerably… With a tiny mechanical device, you will have records of proceedings, something taken for granted in many countries but absent from ours." The purpose "is to ensure that there are proper and accurate court records so that the lis/ dispute is properly addressed. Also the conduct of various stakeholders, including, that of persons seeking and obtaining adjournments, for the asking, is recorded. Perjury and contempt that are routine will get addressed. And there will be increased confidence in the system." The petitioners pointed out that video-recording was being done in Australia and New Zealand. In the U.S., there was a proposal to video-record court proceedings, and a three-year pilot project, in which 14 federal trial courts volunteered to participate, was under way. In the U.K., the Supreme Court's proceedings were being televised. Audio recordings/transcripts of proceedings were available, subject to permission. The petitioners said introduction of video-recording would be a big step towards transparency, equality and realization of quick justice. The case will come up for hearing in February 2013.

Our Comments

(a)   In this connection it is worth mentioning that we have developed the process of Video Arguments which was demonstrated before the District Judge, Indore as early as 2007, presented in the Conference at Chennai in 2007, discussed in All India DRT Conference held in indore in 2008, proposal sent to the Supreme Court in 2008, and was also presented before the All India CAs conference held at Indore in 2009 etc.

(b)   It is relevant to note that all oral arguments are recorded in US courts since 1935 and even after 75 years we are still talking about it.

(c)   There are 73 countries whose Judicial systems are better that us. That is why we have been emphasizing that the litigant borrowers will have to make special efforts to secure justice by being alert and vigilant at every moment of trial which just can not be left to the Govt and the legal community i.e. Govt, Ministry of Law, Advocates, Judges, Bar Council, and Law Colleges which appear to have no committed desire to improve as may be seen from more than 3 crore pending cases in civil courts as well as open violations committed by Ministry of Finance in not transferring the control of DRTs despite 15 years old verdict of the Supreme Court.

(2) Debt Recovery – A Point of View

Following is the extract from our web page vide link

http://www.drtsolutions.com/securitisation_securitization_SARFAESI_SA_Act.htm

The following news article presents another  perspective:-

M J Antony: The long road to debt recovery

Both lenders and borrowers use legal armoury to serve their interests

http://www.business-standard.com/article/opinion/m-j-antony-the-long-road-to-debt-recovery-113022600599_1.html

In a detailed judgment last month, the Supreme Court (SC) lamented the plight of debt recovery tribunals (DRT) that are set up in almost every sector, and then left to fend for themselves. The government does not release funds, and the tribunals are in a state of suspended animation without enough members, staff or buildings. In a triumph of hope over experience, the SC set forth a series of measures for the government to make these bodies functional (Union of India vs DRT Bar Association).

Last week, the SC came across a 12-year-old litigation, described as a "classic case" of debt recovery. The judgment said it showed "how the parties can protract proceedings in fiscal matters. Parties as well as the system have contributed to the delay. At every state of the proceedings, there was delay" (T P Vishnu Kumar vs Canara Bank).

In 2002, the bank moved DRT, Coimbatore, for the recovery of debt from a firm. The debtors asked the bank to produce extracts of accounts and transactions relating to banking transactions. The bank opposed the request, arguing that it was not germane to the dispute. The tribunal rejected the demand for documents observing that it was meant to delay the proceedings. Already five years had gone by. The borrowers moved the Madras High Court. One bench found the request of the borrowers reasonable. On appeal, a division bench found the other bench wrong. Three more years had rolled by. The appeal in the Supreme Court took another three years.

It was not curtains for the litigation, however. The judgment said: "The case stands at the stage at which it was filed, not an inch forward." Now, Canara Bank does not have to produce the documents. But the main issues will have to be argued from page one.

Tracing the history of debt recovery laws, the Supreme Court recalled that DRTs were created by the Recovery of Debts due to Banks and Financial Institutions Act in 1993. Civil courts were found unable to handle the millions of cases coming up before them. At the time of setting up the tribunals, there were more than 1.5 million cases filed by public sector banks and 304 moved by financial institutions. They involved Rs 5,622 crore then. Non-performing assets have doubled from 2009 to 2012. Ingenuity of borrowers and their lawyers also kept pace.

Courts have contributed their share to the chaos. In the Canara Bank case, the high court interfered with the tribunal's order rejecting the demand of the borrowers for a series of documents from the bank. The high court has no power to do so. The Supreme Court chastised the high court for interfering with the interim order of DRT. If the high court interferes in every interim order of DRT, the purpose of establishing such tribunals will be lost. "Owing to the intervention of the writ court, the matter got delayed for four years, defeating the very purpose and object of the Act," the judgment said.

The Debt Recovery Act empowers banks and financial institutions to move the tribunal in the interest of speedy proceedings. However, the borrower can raise disputes over their claims in a civil court. Whether the civil case can be transferred to the tribunal or not is a question on which the Supreme Court has given two contrary judgments three years ago. Thus, the issue can be further complicated by borrowers.

When the Act was found inadequate to meet the ingenuity of borrowers, Parliament passed the Securitisation and Reconstruction of Financial Assets and Security Interest Act in 2002. The provisions are so harsh that financial institutions can play Shylock. In a recent judgment (Palpap Software International vs Indian Bank), the Madras High Court described the case before it as "a classic example of misuse of the provisions of the Act by the secured creditor". The auction of the mortgaged property was reduced to a "mockery".

The judgment said: "The bank is expected to conduct the procedure in a bona fide manner. The attempt of the bank should be to auction property for the maximum amount and adjust it towards the dues, and refund the excess to the borrower."

Cases involving debt recovery are flooding the courts, despite the new laws. Often such litigation is intertwined with other legislation like the Sick Industries Act, which has been found to be amenable to gross misuse, the Negotiable Instruments Act dealing with bounced cheques and liquidation proceedings. These laws are used more as battering rams against each other than for settling disputes. The whole thing can be made into a knotty bundle by lenders and borrowers, which the hierarchy of courts would take years to unscramble. In their minds, the judges might be repeating Shakespeare's line, "Neither a borrower nor a lender be."

(3) Calming the Mind   

Following is the extract from our web page vide link

http://www.drtsolutions.com/new_page_9.htm

Mr. Firoz Poonawalla has sent the following useful information:- 

Don't give your mind permission to get disturbed. 

A disturbed mind is easily influenced. 

This will cost you your peace. 
 

Learn to maintain your peace by freeing yourself 

from attachments. 

Competing or comparing yourself with others 

will not allow you to focus inwards. 
 

An inner focus allows you to keep your eye on your higher self. 

Remember your original nature. 

It allows you to forge a link with the Divine. 
 

Then it becomes easy to recognize useless thoughts and 

replace them with a spiritual perspective. 

A calm mind is not just peaceful, 

it is focused, self-directing and Divine.