DRT  Legal  Solutions

(Debts Recovery Tribunal Legal Solutions) is an India based

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

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

Personal Interest in Longevity, Wellness, Meditation, Laughter Yoga and Sound Health 

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

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

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Expert in:- DRT, Counterclaim, securitization, debt recovery tribunal, NCLT  matters

 

 

 

DRT Solutions Weekly Mail – 230th Issue dated 5th October ‘12

 

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

 

(1) Sec 14 of SARFAESI Act – Fundamentals and Precautions to be taken by the Borrowers

Following is the extract from our web page vide link

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


 

We still receive lot of queries about this important section of the Securitisation Act. Hence our consolidated comments are  under:-

(a)   In India Property is a constitutional right and it can only be taken away or transferred with due process of law

(b)   The bankers can only demand physical possession under the following conditions:-

(i)            When any decree has been issued by a civil court, or

(ii)           When SA has been dismissed by the DRT, or

(iii)         When the Recovery Certificate issued by the DRT has been held final, or

(iv)          When the borrower has not submitted any representation against the notice issued under sec 13(2) of the securitization act or SA has not been filed within the time prescribed under the Act, or

(v)           When the borrower has no objection.

(c)   If any of the above conditions are satisfied, then only the bankers can demand physical possession of the secured assets and if the borrower agrees, then only they can take physical possession.,

(d)   If the borrower does not agree, then only the bank can approach to the Magistrate under the sec 14 of the act otherwise not.

(e)   It is observed that the bankers, in most of cases are approaching the Magistrate prematurely and hence the following precautions are to be taken by the borrowers:-

(i)            As soon as the banks have issued the notice under sec 13(2), one should visit the office of the Magistrate and be acquainted with the persons and system relating to the receipt of the applications by the banks. The purpose is that as soon as any application is submitted by the bank, one should get a copy of the same.

(ii)           If the banks approach for taking physical possession, they are entitled only for symbolic possession and not physical possession. If they demand physical possession, they should be told to produce copy of the order by court or DRT. In absence such orders, physical possession can not be given.

(iii)         If they produce order of the court or DRT, one should file appeal against that order.

(iv)          Now coming back to actions just after the point no (i) above, as soon as one gets a copy of the application submitted by the bank, one should prefer appeal U/S 17 before the DRT.

(v)           Side by side one should prepare reply and submit before the Magistrate. It is only with due process of law, if the Magistrate orders for taking physical possession, his order should be appealed u/s 17 before DRT.

(f)     In view of above, the banks will not be able to take any physical possession, till the case is decided by the DRT.

(g)   It is needless to mention that one should always raise claim for loss and damages resulting into ‘No Debt Due’ Further one should always implead the Chairman and higher bank officials.

 

(2) Five Years Rigorous Imprisonment to a Bank Manager for Causing Loss of Rs 13.5 lakh

Following is the extract from our web page vide link

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


 

One of our clients have sent the following useful news release:-

 

FIVE YEARS RIGOROUS IMPRISONMENT TO A BANK MANAGER FOR CAUSING LOSS OF Rs.13.5 LAKH

Press Release
New Delhi , 23.09.2012

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DRT Solutions Weekly Mail – 229th Issue dated 28th September ‘12

 

All Weekly mails right from 1st Issue to latest, click at top of the page


 

(1) 15 Years after SC Order, Babus hold on to Tribunals

Following is the extract from our web page vide link

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


 

Dr. Suresh, Founder of ‘Borrowers’ Rights Forum’ and one of our clients has sent following important news item:-

15 years after SC order, babus hold on to tribunals

Posted about 11 hours ago | 0 comment

 

New Delhi, September 26, 2012(TNN): Over 15 years ago, the Supreme Court had said that tribunals should be free from direct administrative control of various ministries but the highest court’s advice has remained on paper as key ministries are reluctant to lose their tribunals to the supervision of an autonomous umbrella body.

“The department of justice prepared a proposal for creation of a Central Tribunal Division and sought comments of the 24 ministries/departments having administrative control of 62 tribunals/authorities. Of the 24 ministries/departments, 10 opposed it, four supported it and eight conveyed conditional concurrence,” the law ministry said in an affidavit.

Faced with persistent queries from a bench of Justices G S Singhvi and S J Mukhopadhaya on efforts made to make the tribunals functional in letter and spirit, the Centre said to overcome divergent views, it has set up an inter-ministerial group (IMG) “to discuss the feasibility of having central level agency for exercising administrative control over the quasi-judicial bodies (read tribunals)”.

The first meeting of the IMG was held on September 13 in which department of revenue did not favour setting up of Common Tribunal Division (CTD). Likewise, ministries of corporate affairs, power, petroleum & natural gas and commerce too said the tribunals under them functioned for a specific purpose and selection of the chairperson and members was a specialized task having no parallel to other tribunals.

The law ministry, in its affidavit, said, “It was impressed upon the participants in the September 13 meeting that there is urgency in the matter and the need for finding a common ground for way forward. The IMG members have been requested to consider four proposals – to devise uniformity for those tribunals performing quasi-judicial functions, possible uniformity in appointment of chairman/members of the tribunals, need for uniform terms and conditions of service and mechanism for monitoring the performance of the tribunals as well as to look into complaints of corruption and misconduct.”

The SC’s 1997 judgment in L Chandra Kumar case had unambiguously said, “We are of the view that, until a wholly independent agency for administration of all such tribunals can be set up, it is desirable that all such tribunals should be, as far as possible, under a single nodal ministry which will be in a position to oversee the working of these tribunals. For a number of reasons, that ministry should appropriately be the ministry of law.”

The law ministry said the court’s 15-year-old suggestion was considered by the government but “the concerned ministries where the tribunals are functional have been resisting the creation of a centralized agency in the law ministry on the ground that each tribunal is set up for certain specific objective pertaining to a subject matter dealt with by that ministry”.

It said the chairman and members of these tribunals — like Income Tax Appellate Tribunal, , Employees Provident Fund Appellate Tribunal, Telecom Disputes Settlement and Appellate Tribunal, Film Certification Appellate Tribunal, Appellate Tribunal for Foreign Exchange, Appellate Tribunal For Prevention of Money Laundering Act, Securities Appellate Tribunal, Railways Claims Tribunal and Railways Rates Tribunal – were drawn from various sources with the specific background, knowledge and experience required for that tribunal.

“These tribunals do not have identical arrangements and have officers of different backgrounds with subject knowledge. Thus, there is no uniformity in manning of the tribunals at the chairman/member level,” it said.

However, the government’s effort had been to formulate a uniform policy for appointment of chairpersons and members of various tribunals covering age, tenure and other conditions of appointment, it said but lamented that there had been no consensus on it among the ministries.

Our Comments

(a)           As per the above news item, the Govt does not appear to be keen to transfer the tribunals from the controls of the parent ministries.

(b)           In the cases of DRTs, the attitude of the Ministry of Finance is no different.

(c)           On one hand, the Govt desires quick decisions from the DRTs even within 6 months but is unable to take any decision even after 15 years of the judgment of the Supreme Court.

(d)           In view of above, the only course left is to incorporate all these aspects in the pleadings. All the arbitrary dealings of the Govt should be  described such as establishment and control of the DRTs, appointment of the POs, arbitrary decisions of the Pos, partiality shown to the banks etc with the conclusion that justice can not be obtained with the present state of affairs. On one hand huge court fees of being charged (e.g. Rs. 1.5 lac for OA and Rs. 1.5 lac for the counter-claim), the appeal in the matter of SAs are nearly impossible due to prescribed deposit of minimum 25%, exhaustive trial is a must. In our previous mails we have given lot of tools to ensure exhaustive trials, the same should be used. The litigant borrowers and guarantors have to take special pains to help their advocates.

(e)           As emphasized the borrowers need to question the constitutional validity of the said 25% provision of the deposit. This can only be achieved by an united fight.

(f)            Since there are more than 60 tribunals in the country, our above suggestions need to be spread among the litigants of other tribunals by forwarding our this mail to them.   

 

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DRT Solutions Weekly Mail – 228th Issue dated 21stSeptember ‘12

 

All Weekly mails right from 1st Issue to latest, click at top of the page


 

(1) DM, CMM, Collectors and DRT Judges are reading our Weekly Mails

Following is the extract from our web page vide link

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

 

Few of our clients have informed that DM, CMM, Collectors and DRT Judges are reading our weekly Mails. Our comments are as under:-

(a)   Our Judicial system does not have any established mass communication system for updating the knowledge of the Judicial officials. They have to depend on either self study or the submissions made by the advocates during the arguments.

(b)   The legal reports for the self study contains mostly the judgments delivered by different courts in the country. Most of such judgments are outdated for the needs of the latest and current problems.

(c)   Since the judges are highly overloaded and overworked, most of them don’t have time for self study and hence they have no options but to go by the submissions made by the advocates during the arguments.

(d)   On account of present huge pendency as well as ever increasing rate of growing of the said pendency, the judges do not allow time for exhaustive arguments and hence are deprived of proper understanding of modern complex problems. The emphasis is on disposal rather than justice. Thus the original judgment suffers giving rise to review and appeal. The higher courts are no way different. All these factors give rise to further additions to huge pendency, poor quality and great dissatisfaction. Most of the litigants heavily suffer due to long drawn process of years and decades.  

(e)   Advocates are having their own problems. They are mostly governed by the plight of the judges.

(f)    Thus on account of above, there is no scope for solutions to current or latest problems.

(g)   We have recognized the above ground reality and accordingly designed our website, conferences and the weekly mails. As a policy we provide immediate response to anyone on our mobile phone. Hence we are quite uptodate with day to day problems. This is one of the our core strengths.

(h)   We had several instances when the DRT Judges, High Court Judge, Retired judges etc called on us and had serious brain storming sessions.

(i)    We welcome the Judicial authorities to communicate and interact with us to apprise them with most appropriate solutions to current and latest problems.

(2) Sec 14 of Securitisation Act – Remedial Measures for Borrowers & Guarantors

Following is the extract from our web page vide link

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

The following measures are suggested:-

(a)   As soon as legal notice is received u/s 13(2), the borrowers and guarantors whose properties are involved as the alleged secured assets, should find out the office of the DM, CMM or Collector who is handling the applications from the bank for taking physical possession.

(b)   One should have continuous contact with the said office so that as soon as the bank approaches, it should be immediately known. The copy of the application submitted by the bank should be obtained, studied and reply submitted to the said office.

(c)   The concerned judicial authority is bound to provide opportunity to hear oral arguments and take into account the written submissions.

(d)   Side by side, one should file application with the DRT under sec 17 along with a stay application.

(e)   In our several previous weekly mails, we have given lot of details on above as well as other points.

 

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DRT Solutions Weekly Mail – 227th Issue dated 14thSeptember ‘12

 

All Weekly mails right from 1st Issue to latest, click at top of the page

 

(1) Supreme Court fires Bank for Unnecessary & Mindless Litigation -  Bank ordered to pay Huge Costs compared with the Claim

Following is the extract from our web page vide link

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


 

Despite numerous instructions and court judgments, the bank officials are indulging in unnecessary and mindless litigations. Supreme Court fired the bank for fighting a bank claim case of paltry sum of Rs 15,000=00 in District Consumer Forum, State Consumer Forum, National Consumer Forum and then Supreme Court. The bank lost in all the courts. District Forum imposed costs of Rs. 3000=00 on 26.07.07 and Supreme Court imposed costs of Rs. 10,000=00 on 09.07.12. The bank must have spent huge money on advocates in all the courts. Further the bank officials must have spent lot of time in office, advocates office and courts apart from expenditure on travel.

The entire judgment is reproduced at the end of this mail.
 

Our Comments

On account of above mindset of the bank officials, we always tell our clients that even if the bank loses in DRT, the bank officials will fight up to Supreme Court. Hence we emphasize that the pleadings must be prepared by persons having mastery of facts and mastery of law. One must pay adequate attention on all dates without leaving the matter to the advocates only.
 

(2) NPAs in 2013 may increase tremendously to 10%

Following is the extract from our web page vide link

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

Following extract from a news item predicts tremendous increase in bank NPAs in 2013:- 

 

“Global rating agency, Fitch, post examining the Indian economic condition and global downturn forecasted the non performing assets (NPAs) of the banks to reach 3.75% (FY12 2.9%).  However, given the macro pressures and addition of NPAs particularly, by government banks in the last financial year the agency expects stressed assets in the system, including unseasoned restructured loans, to reach around 10% by FY13 from 6.7% in FY10.”

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DRT Solutions Weekly Mail – 226th Issue dated 7thSeptember ‘12

 

All Weekly mails right from 1st Issue to latest, click at top of the page


 

(1) Bank Official committed Serious Irregularities: Court

Following is the extract from our web page vide link

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


 

One of our clients have sent the following useful news item which is self explanatory:-


 

Bank official committed serious irregularities: court

CHENNAI, August 19, 2012

Directs bank’s CMD to conduct probe and take action

Stating that the Authorised Officer of a nationalised bank had committed serious irregularities in the sale of a property at Besant Nagar here, the Madras High Court has directed the bank’s Chairman-cum-Managing Director to conduct an inquiry in the matter and take appropriate action against all concerned.

The enquiry should be conducted by an officer not below the rank of a General Manager.

A Division Bench comprising Justices D. Murugesan and K.K. Sasidharan passed the order while allowing a writ petition by one Hemalatha Ranganathan who sought the quashing of an order of the Chief Metropolitan Magistrate of February 22 this year and consequently direct the bank to hand over possession of a portion of the property to her.

By the February order, the CMM had permitted the bank to take possession of the property from one Rajalakshmi who died in December last year. The petitioner had succeeded to the estate.

The writ petition’s substance related to the collusive sale made by the Authorised Officer (AO), Indian Bank, Circle Office, here, in favour of a person who was not even a bidder. The auction proceedings had been conducted in spite of a High Court stay that restrained the bank from proceeding further with the sale.

Subsequently, the officer had taken action to take possession of the property by approaching the CMM, Egmore, under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act without divulging the background facts. This was followed by the issue of a sale certificate in favour of a stranger.

Mr. Justice Sasidharan said a perusal of the file revealed that the AO had committed serious irregularities in the sale. It had been made in utter violation of the mandatory provisions of the SARFAESI Act besides the terms and conditions of the bank’s auction notification. The AO confirmed the sale in the name of a third party, accepted 75 per cent of the sale consideration after 17 months and ultimately sold the property to yet another person. “The present case is a classic example as to how Authorised Officers of the banks are dealing with the secured assets by misusing the enormous power at their command,” Mr. Justice Sasidharan said. The Bench said Magistrates should not pass orders under Section 14 of the Act in a routine manner. They should satisfy themselves that the court’s intervention was necessary to take possession of the property concerned.

There were instances where Advocate-Commissioner (AC) with police assistance locked the premises without even allowing the inmates to take the cooked food or uniform and books of school-going children. In the normal circumstances, it was not necessary to order police protection and permission to break open the lock. It was always open to magistrates to issue suitable directions to execute the order under Section 14 of the Act depending upon the AC’s report after the initial inspection. Setting aside the CMM’s order, the Bench directed the CMM to put the petitioner in vacant possession of the property by deputing the very same AC or another AC within two weeks.

(2) Frauds committed by Bank Officials


 

Following is the extract from our web page vide link

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


 

Many of our clients are reporting frauds committed by the bank officials while sanctioning the loans, disbursement of loans, declaring the NPAs, declaring willful defaulters etc. Our comments are as under:-

(a)   All discussions with the bank officials should be audio recorded and transcripted.

(b)   All dealings should be covered in writing.

(c)   If the said fraudulent actions are resulting into loss and damages, the same should be mentioned in correspondence.

(d)   If any document is got signed by the bank officials, photocopy should be obtained and kept in record.

(e)   Copies of all correspondence be endorsed to the Chairman of the bank.

(f)    Whenever any legal action is initiated by the bank, the above documents and material will be quite useful.

(g)   At the initiation of the said legal action, one should study the provisions of law as well as the  RBI Guidelines.

(h)   If any bank officials is personally involved or is troubling personally, the Indian Penal Code be gone through and relevant sections be noted. This will be useful for initiation criminal action against the said official

(i)    Since the bank officials are not afraid of usual correspondence and if they initiate any legal action, communication with them should be made through legal mode only with copies to the Chairman of the Bank.

(j)    Whenever any claim is raised by the bank in money value, the defence should also be in money value i.e. loss and damages or counter-claim in money value.

(k)   In case of frauds, the matter be reported to the RBI and CVC (Central Vigilance Commission)

(l)    All above will be useful whenever any criminal action is initiated against the bank officials.

 

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DRT Solutions Weekly Mail – 225th Issue dated 31st August ’12

 

All Weekly mails right from 1st Issue to latest, click at top of the page

(1) Counter-claim Limitation – Continuing Cause of Action


 

Following is the extract from our web page vide link

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


 

Many advocates of our clients have been raising objections against the counter-claim particularly on the issue of limitation. Our comments are as under:-

(a)   The banks are initiating actions for recovery of their dues by invoking either DRT Act or Securitisation Act. The alleged claim of the bank is in money value. The ultimate defence for the borrowers should also be money value. Such defence in respect of DRT Act will be by way of counter-claim (in form of damages) or in respect of Securitisation Act by way of loss and damages in the application u/s 17.

(b)   The nature of above mentioned damages and losses is that the same go on increasing every day i.e. they are continuing tort. Accordingly the said counter-claim or the loss and damages are to be treated under Section 22 of the Limitation Act 1963, which relates to ‘Continuing breaches and torts’

(c)   In view of above, there is no bar of limitation for the above mentioned counter-claim or loss and damages and accordingly the pleadings should be framed.

(d)   This is just for information that we have filed a counter-claim in respect of one of our clients after 21 years as an Indigent Person.

 

(2) Dealing with a Powerful Recovery Agent


 

Following is the extract from our web page vide link

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


 

Recently one our clients informed that the bank has deputed a powerful Recovery Agent who will take necessary actions for taking physical possession of the secured assets. We guided the said client as under:-

(a)   Legal notice be sent to the bank with copy to their Chairman laying down the various provisions of law for taking possession of the secured assets. It was also informed in the said legal notice that the visit of the said Recovery Agent will be video recorded.p

(b)   The bank informed the day and time of the visit of the said Recovery Agent. We asked our client to have foolproof arrangements for video recordings, one by handycam and another by mobile. A mock trial be conducted for the video recording so that there is no failure even at odd hours.

(c)   The said Recovery Agent did not come at the appointed time. Another legal notice was sent to the bank with copy to the Chairman informing the non-visit of the said Agent asking them to inform at least 3 days in advance about the next visit.

(d)   Normally these agents employ some goonda elements and they come at odd hours on late evenings of holidays. Some time they come with fake police personnels and take forcible possession of the secured assets. We apprised our client about all these tricks and machinations employed by the Recovery Agents.

(e)   On account of above, the said Recovery Agent declined to come to the premises and hence the bank employed another Recovery Agent who came on the spot without prior information. His visit was video recorded and anther legal notice was sent to the bank with copy to the Chairman.

(f)    With above empowerment of the client, no physical possession could be taken. Bank or their Recovery Agent have no choice but to take symbolic possession only.

(g)   In democratic frame work, there is only rule of law and not rule by persons. The law is in favour of public, in favour of borrower. The public servants (i.e. the Bank Officials including the Chairman) are servants and not masters. They have to render service to their masters i.e. the borrowers. But this will happen only when the master (i.e. the borrowers, i.e. the public) knows the law otherwise the servants (i.e. the bankers i.e. the politicians) will rule the masters (i..e the borrower i.e. public)

(h)   In British days, when the Collector used to write a letter to the public, he will end the letter with ‘Yours most obedient servant’, this line has been dropped in Free India but needs to be introduced again. When a politician comes for votes, he requests the public with folded hands to vote him. After elections, the folded hands disappear and public can not meet him.

(i)    In UK and other developed countries, there are no red lights on the cars of the politicians, beauracrats etc. Red lights are there only on the ambulance and fire vehicles.

(j)    In Japan, the beauracts sit on simple chair and table, whereas the visiting public is seated on sofas at higher level.

(k)   In Netherland, their Prime Minister is often seen moving on a bycycle.

(l)    In all the above countries, there are no security personnels surrounding them.

(m) On account of above, the borrowers (i.e. public) need to understand and use the Constitution of India i.e. the Mother Law as well as other subordinate laws while dealing with the bank officials as well as other government officials.  

DRT Solutions Weekly Mail – 224th Issue dated 24thAugust ’12

 

All Weekly mails right from 1st Issue to latest, click at top of the page

(1) Alertness and Vigilance on part of Borrowers in Litigation


 

Following is the extract from our web page vide link:-

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


 

Recently few of our clients experienced problems during litigation. We advised them to make audio records of various discussions with the bankers and the advocates as well as the court arguments. Based on such audio records and other feedback from the said clients, our views are as under:-

(a)   Prior preparations must be made before such discussions take place. All relevant documents must be gone through and understood thoroughly well.

(b)   All discussions must be audio recorded so that the same is reviewed and revised with a view to have corrections in future.

(c)   Important discussions with the bank officials must be covered in writing.

(d)   Have a sitting with the advocate at least one week in advance. Provide and explain him all the relevant documents and case laws so that he can prepare for all the pros and cons. Have another sitting at lease two days in advance to ascertain as to how he has prepared the matter. One should never go the court without such preparations.

(e)   Always attend the court along with the advocate and make audio record of the complete court proceedings. During the course of arguments, if there is any important information, the same should be immediately provided to the advocate then and there only.

(f)    Always keep in view that your stake is the highest. Every moment should be accomplished thoroughly. Always keep in view that if there is any lapse, future corrections will be extremely difficult rather impossible.

(g)   Be frank with your advocate and if he can not fulfil your above requirements, it will be better to appoint another advocate. While we appreciate the advocates, but they have their own limitations and no one will agree that on account of their limitations, one should lose his case.

(h)   It is needless to mention that the environment is totally against the borrowers. Hence all possible efforts are to be made right from the inception at every point of time. Any lapse or neglect, will result in adverse outcomes which may be impossible to correct in future.

(i)    With above approach, some of our clients have been quite successful in their bank litigations.

(2) Important Mail from Mr. Ajay Khemka, Bangalore


 

Following is the extract from our web page vide link

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


 

An important mail from Mr. Ajay Khemka, one of our clients from Bangalore is reproduced below. It is self explanatory:-

From

Ajay Kumar Khemka decovitrified@yahoo.co.in

 

 

 

 

Friends, 

I have just created a petition to the Finance Minister: regarding Removal of  Deposit of 25% of loan amount towards appeal in DRAT. because I care deeply about this very important issue. 

I'm trying to collect 2002 signatures, and I could really use your help. 

To read more about what I'm trying to do and to sign my petition, click here:
http://www.change.org/en-IN/petitions/finance-minister-remove-deposit-of-25-of-loan-amount-in-drat-court?share_id=BfqunRYJRo&utm_campaign=petition_creator_email&utm_medium=email&utm_source=share_petition 

It'll just take a minute! 

Once you're done, please ask your friends to sign the petition as well. Grassroots movements succeed because people like you are willing to spread the word! 

AJAY 
 

From

Ajay Kumar Khemka
Decovitrified Inc., B/2 GEF Block,
Rajajinagar Indl. Town, W.O.C. Road, 
Bangalore-560044, India
MobilePhone - 0091-9964705451/7483153604
Phone - 0091-80-23200984


 

 

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DRT Solutions Weekly Mail – 223rd Issue dated 17thAugust ’12

All Weekly mails right from 1st 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-Latest

(1) Judiciary is for Justice, not just for Case Disposal

Following is the extract from our web page vide link

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

An article published in DNA India is reproduced below is highly relevant in respect of DRT and DRT Judges:-

Judiciary is for justice, not just cases

Girish Patel| Agency: DNA | Sunday, August 12, 2012

http://www.dnaindia.com/analysis/column_judiciary-is-for-justice-not-just-cases_1727033

 

 

Recently, I read a short book by Leila Seth (the first woman of Delhi high court and the first woman chief justice of a high court in India). We, The Children of India – The Preamble to our Constitution by Seth explains the ideals of our Constitution in a simple and lucid manner, namely, dignity, equality, opportunity, freedom, liberty, rights, justice, fraternity, democracy, socialism and secularism.

At the same time, I came to read a report by the Centre for Social Justice regarding lack of awareness in our lower judiciary about socio-economic rights guaranteed by our Constitution.

There is nothing surprising or shocking in the report. A few years back, the while attending the classes of Judicial Academy, lower court judges raised a question, “How are we concerned with the human rights of our Constitution?”

I was asked by the chairman to prepare a short note to show how Fundamental Rights and Directive Principles are also important in the work of the lower judiciary. In almost every case, one or the other right is directly or indirectly involved, as in the case of tortured wife, child labour, right to education, custodial violence, bail and remands, family disputes, dispossession of land, termination of worker’s services, landless labourer’s claim for minimum wages, granting injunctions, water disputes, money lending etc..

This ignorance or indifference or insensitivity has not only been prevalent in the lower judiciary, but has also spread to the higher judiciary. When we talk about human rights in a lower court, we are ridiculed and told “not here, but in the high court”. When we do the same thing in the high court, we are told in many cases the same thing, “not here, go to the Supreme Court”.

Our Constitutional ideals have largely become a dead letter for a large number of our judges and black letter lawyers for whom law is a logical exercise or linguistic gymnasium. Every legal concept has not only a core meaning, but also a penumbral area where your sense of justice and ideals of Constitution have same role to play.

But for these judges, deciding the cases is the job, not doing justice. For many lawyers and judges, law is a game of chess – you move and I counter-move. But every case is a human drama where human beings are the actors.

A workman retrenched or dismissed, a woman burnt, exploited child labourer, a displaced tribal, tortured dalit are not simple law cases but living, suffering human beings seeking justice from the courts.

For doing justice, legal scholarship or disposal efficiency is not important but Soloman’s wisdom is required. There can be no better guideline than our Preamble for doing justice.

In this unfortunate state of affairs, I think Leila Seth’s short book should be made available to all judges as the basic textbook to guide them towards administering justice.

Strangely, Swift’s Gulliver’s Travels, which was meant for the adults came to be used as a children’s book. Here, Leila Seth’s book, written for children, should be studied and digested by our Hon’ble judges. Every day, the court work must begin and end with the recitation of our Preamble so as to remind the judges and the lawyers that truth and justice are the two pillars of administration of justice.

 

(2) Amount of Counter-claim

Following is the extract from our web page vide link

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

In several cases, we have prepared counter-claims running in thousands of crores. Repeatedly, our clients have been asking us to reduce the said huge amount of counter-claim to lower figures. Our replies to them have been as under:-

(a)   Law of Damages is highly developed in advanced countries but in India, it is still in its infancy. The advocates who have adequate knowledge of law of damages will never raise such question.

(b)   There is no upper limit or any restriction on  the amount of counter-claim filed in the court of law including DRTs.

(c)   The maximum amount of court fee in most of the States and also in DRTs is Rs. 1 5 lac.

(d)   In view of above, one should claim, as much is possible under the law of damages.

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DRT Solutions Weekly Mail – 222nd Issue dated 10thAugust ’12

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(1) Complaints against DRT Judges at Coimbatore, Hyderabad & Jabalpur

Following is the extract from our web page vide link

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

Dr Suresh, one of our clients and founder of ‘Borrowers Rights Forum’ has sent the following useful news item:-

 

 

DRT Solutions Weekly Mail – 221st Issue dated 3rdAugust ’12

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(1) Justice Ramchandran Nair says that SARFAESI Act should be removed or amended being harmful to Bank Borrowers


 

Following is the extract from our web page vide link

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

Dr. Suresh, Founder, ‘Borrowers Rights Forum’ has sent the following useful news release:-

 

By Express News Service - KOCHI

29th July 2012 10:44 AM

Justice C N Ramachandran Nair said that the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act which came into effect in 2002 should be removed since it has brought much harm to the loan borrowers from banks. If not revoked, it should be amended so as to benefit the borrowers, he said.

Justice Ramachandran was speaking at the inauguration of a seminar on implications of action taken by the bankers against borrowers under SARFAESI Act.

“The Act was brought into effect to help banks so that they could recover their dues from the borrowers. It has helped the bankers. However, it has given them unnecessary power since they can auction off the properties of the owner without their consent at a much lesser price than the market price. This will bring huge losses to the borrower as the market price of land is presently at an all time high,” Justice Ramachandran said.

Speaking about the atrocities being meted out by the bankers to the borrowers through this Act around the country, the High Court Justice pressed for the need of the Parliamentarians to amend the Act so that the owner gets a right to sell his land at his own price, after the bank auctions off a portion of the land to get back his dues. Justice Ramachandran added many suicides have been committed in the past because the borrowers, especially the farmers, are not provided any security.

(2) Counter-claim in Money Value is the Only and Ultimate Defence for the Borrowers

Following is the extract from our web page vide link:-

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

On this topic we have dealt with in our several earlier weekly mails. Despite this, our many new clients approach us that their advocates are not in favour of preparing and contesting counter-claims. We reiterate our stand as under:-

(a)   DRT is the first and last court for bank trials for the borrowers. If the pleadings are incomplete, higher courts will not be able to give any relief on this count.

(b)   Banks are making their claims in money value with interest. If the borrowers don’t make any counter-claim in money, they are sure to lose their case.

(c)   Bankers commit numerous wrong doings from the inception, in sanction, in revival etc. All such wrong doings must be translated into money value.

(d)   The law of damages as applied to bank litigations is highly developed in other countries but not so in our country. It requires lot of knowledge research and study of banking, industry, finance and law based on in depth research. This is not possible for most of the advocates. It is needless to mention that we are working in this field since 1989.

(e)   Many of our clients who followed our guidance and advice have not only won against the banks, they saved their securities. In one case the bank was forced to settle with even as low as 5% of the total dues.

(f)    We always advice the borrowers to contest a perfect and thorough fight at every point of time, side by side we advise they to run their business. This is how the battle will have a very good foundation. With passage of time, we are getting lot of judgments favouring the borrowers. Side by side the court room technology is also developing. All such advantages will only accrue to those who are patient and take personal interest instead of leaving everything to the advocates. 

    

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