|
DRT Solutions Weekly Mail – 170th Issue
dated 12th August ’11
All Weekly mails right from 1st Issue to latest, click links
above
(1) Illegal Physical Possession u/s 14 of Securitisation Act
Recently one of our clients
from Delhi informed that when he was out of station, the bank officials took
illegal possession of his properties with the help of police. Subsequently
when he informed this incidence, following facts were revealed and our
comments were as under:-
(a) The
bank sent the notice u/s 13(2) few months back. The borrower submitted his
representation and objections within the prescribed period of 60 days. The
bank did not reply within the prescribed period of 7 days
(b) The
bank did not issue any notice u/s 13(4). It so happened that the borrower
was out of station, the bank officials took possession of the property with
the help of police.
(c) After
few days when the borrower came back, he found such action of the bank, he
informed us. We asked him to ascertain all the facts and submit application
before the DRT u/s 17 of the Act with an urgent application to restore the
possession of the property.
(d) This
is just like any other action by the bureaucracy when blatant and misuse of
the power is considered to be use of the power. It is similar to what Delhi
Police did on the night of 4th June
’11 at Ramlila Maidan. That is why we advice all the borrowers to be
vigilant and alert. Caveat should be submitted before the Magistrate.
Proceedings in his office must be watched. Proper Review and Appeal must be
made. The persons on the spot must be aware that whenever any bank officials
with police come, copy of the Court Order is a must otherwise, no possession
should be given. If the possession is forcibly taken, FIR must be filed. If
the Police refused to accept the FIR, the same should be sent by registered
post. Further private complaint be lodged with the Magistrate. Immediate
Application be made with the DRT u/s 17 of the Act. It is needless to
mention that the borrower must include loss and damages in his
representation and the said application before DRT. The proceedings before
the Magistrate and DRT must be conducted with proper written submissions,
Review and Appeal etc as we have emphasized in several weekly mails.
(e) In
many cases, we have found that the Magistrate and the PO DRT are not
conducting proper trial as per the law and procedure of law laid down by the
Supreme Court, it is all the more important for the borrower to keep all
these aspects in view while his advocate conducts the proceedings.
(2) Use of Tablet PC by the Borrowers and the Advocates
Past
six months we have been using Tablet PC of Chinese make. Recently we have
procured branded one of the specification which we were waiting past 4
months i.e. ‘Asus Eee Pad Transformer Tablet PC’. It is a wonderful device
for use by the borrowers and their advocates even in the court room. It has
a detachable keyboard. The combined batteries provide operation upto 16
hours. The weight of the 10.1” tablet is 680 gms and it has very good
resolution with two cameras, rear of 5MP and front of 1.2 MP which can shoot
and record HD videos. The download from internet including e-mails on wi-fi
is quite fast. We are now using it for full fledged purpose during walking
and thus injurious sitting is completely avoided. All the borrowers and
their advocates must use this device as it will not only greatly improve the
efficiency but will contribute to better healthy life.
DRT Solutions Weekly Mail – 169th Issue
dated 5th August ’11
(1) Useful Case Study – Challenge to Borrowers & Guarantors to understand &
take Active Part in Litigation Process in DRTs & Higher Courts as their
stake is Highest.
The
following case analysis, study and comments will be quite useful to the
borrowers and their advocates fighting in DRTs as well as in the higher
courts. The name of the client and the DRT are not mentioned due to
professional secrecy and not to cause any aspersion on any body:-
(1) We
have been emphasizing our clients right from 2001 to understand and take
active part in the litigation process in DRTs. The following case study,
analysis and comments will again prove our contentions.
(2) One
of our clients filed his application (i.e. appeal which is misnomer as per
Mardia Chemicals but it has not yet been corrected yet by the legislature
since 2004)) u/s 17 of Securitisation Act in DRT. The appeal contains
exhaustive pleadings about the wrong doings of the bank as well as the loss
and damages suffered due to the said wrong doings. Since the said loss and
damages are much more than the alleged claim of the bank, prima
facie there is ‘No Debt Due’ Hence until and unless the said application u/s
17 is fully decided by the DRT, no recovery action can be initiated by the
bank.
Comments :-
(a) Govt
& Banks want DRT to decide the cases quickly within 6 months but they are
unable to get simple correction in the Act even in 9 years.
(b) DRTs
are to be transferred from Ministry of Finance to Ministry of Law despite SC
Judgments past several years. Despite writ petitions and applications under
RTI Act, the Ministry of Finance is not effecting this transfer due to
obvious influence of banking lobby.
(c) The
DRTs are to be manned by persons (judges & advocates) having specialized
knowledge in banking, finance and industry vide page 77 in ‘Tiwari
Committee’ report of RBI published in 1984 ( 27 years back) Till today this
vital aspect has not yet been implemented by the Govt.
(d) The
DRTs are to function judicially without any bias in accordance with the
principles of natural justice i.e. (i) Hear the other party, (ii) nobody can
be a judge in his own case, (iii) apparent errors in finding of facts and
law should be corrected quickly the moment they are brought to the court,
obviously by the process of Review. Further as per the law laid down by the
SC, the DRTs can even go beyond CPC in the interest of justice.
(e) The
bogey of ‘Public Funds’ can only be raised by the banks if before coming to
the court, they have followed all RBI Guidelines and Govt policies as well
as the SC judgments otherwise they themselves are not caring for ‘Public
Funds’ and hence they have no authority to point out such aspect.
(f) All
the above aspects are to be taken care of in pleadings, submission and
arguments before the DRTs. We have been emphasizing the same to the
borrowers to avoid any lapse by their advocates, if any.
(3) Our
client also filed a caveat before the Magistrate so that if the bank
approaches the Magistrate, the borrower should be given opportunity of
hearing. The Magistrate informed in writing that due opportunity will be
given.
(4) Subsequent
to filing of the said application u/s 17, the bank approached the Magistrate
Court u/s 14 to take physical possession of the secured assets. Our client
submitted exhaustive reply, arguments were held by our senior advocate and
written arguments were submitted.
(5) The
Magistrate kept the issue of order pending for few months and then finally
gave his verdict in favour of the bank.
(6) We
immediately advised the client to file a Review before the said Magistrate.
At this juncture, our client committed a blunder by not filing the required
Review and without informing us went to anther advocate and filed an appeal
before DRT.
(7) Our
client sent us copy of the said appeal. We found many mistakes in the said
appeal and since our advice for filing Review was ignored, we preferred to
keep quiet and asked the client to proceed as per advice of his advocate.
(8) The
PO DRT rejected the said Appeal. Our client then approached us for further
advice in the matter. We told him that since he ignored the important Review
and filed an erroneous Appeal, he should continue with his advocate for
further action.
Analysis and Comments :-
(a) We
had full control on the case till issue of the order by the Magistrate as we
submitted exhaustive oral as well as written arguments.
(b) Under
such situation, there was strong case for Review as we had created
sufficient record in the court of Magistrate.
(c) Despite
Review getting rejected, we would have forced the Magistrate to mention all
our points in the order.
(d) Ignoring
Review by the Magistrate created a lacuna and his order remained
unchallenged.
(e) Appeal
is undertaken for correction of illegalities, if any in
the bottom court. We would have used the said record and would have made a
very strong appeal but on account of serious error of not following our
advice, the Review was ignored and the said record was not created.
(f) Further
the said appeal being erroneous had erroneous arguments and no written
arguments were submitted and hence anther defective order by the PO was
issued.
(g) With
such serious defects, we preferred to keep our hands off.
(h) The
lesson is that since we know that entire environment is against the
borrower, we have to be cautious at every stage and should not proceed at
any point without sufficient efforts and records so that the same are
submitted before the higher courts which should always be forced to include
all our points in their order as per verdict of the SC in the matter of
Swaran Lata as well as Mohd Akram.
(i) Many
of our clients are getting success when they follow our guidance and advice
fully otherwise they suffer as in this case.
DRT Solutions Weekly Mail – 168th Issue dated 29th July
’11
(1) Importance of Review – PO DRT Bangalore hears Review and admits some of
his mistakes
One
of our clients from Bangalore has informed that the Review was heard and the
PO said that he would correct some of the mistakes but will not change his
conclusion. Accordingly he adjourned the matter to subsequent date. As
advised by us the party now got time to file the appeal also.
Our Comment
Had
the Review not been filed, neither the said mistake would have been
corrected, the matter would have not been adjourned and more time for appeal
would have not been obtained. Side by side, it has put a pressure on the
mindset of the PO that he should be careful in future to abide by law.
Further the incidence has demonstrated to other advocates that they should
also utilize the tool of Review.
Now
we advised the party that the order on Review must be gone through and if
any point which has been pressed during Review does not find place in the
order, another application must be filed giving reference to the SC Judgment
in the matter of Mohd Akram so that the PO includes all the points in the
Review Order. This will further correct the mindset of the Review that he
must listen to all points and mentions the same in his order. When he does
so he needs to be reminded about SC judgment in the matter of Swaranlata so
that reasons are given in respect of all points and conclusion is to be
based on such analysis. This will prevent the PO to be arbitrary or bias
towards bankers.
It is
unfortunate that there is no system of constant trainings of the Advocates
and Judges and that is why we are educating our clients and the borrowers to
understand all these things and impress upon the advocates and the judges to
think if they were the borrowers, how they would have handled their own
case. In this respect the SC judgments in the matter of SP Gupta and AK
Kripack would be highly useful.
(2) Importance of Review – PO DRT Lucknow hears Review and provides useful
Relief
Recently one of our visitors
from Jharkhand informed that DRT has passed decree without mentioning
several points put forth during arguments and he desired our suggestions for
Appeal. We asked him to file an application for Review based on the Judgment
of SC in the matter of Mohd Akram. The PO DRT Lucknow though did not modify
the order but agreed to annex certified copies of the written arguments.
Such action on Review resulted in a very useful relief for Appeal as the
Appeal Court will have a definite proof that the trial has not be done
properly and hence the case be remanded to lower court. As soon as the case
is remanded for retrial in DRT, we shall amend the pleadings to include all
the wrong doings of the bank as well as the counter-claim.
DRT Solutions Weekly Mail – 167th Issue
dated 22nd July ’11
(1) Problems in DRT and Importance of Review
One
of our clients at Bangalore has informed the following problems:-
(a)
The PO in the said DRT is looking after other two DRTs also and hence he is
extremely busy.
(b)
The said PO is an ex-banker and appears to have no practical legal knowledge
of a trial court.
(d)
On account of above, there is a huge discontent among the borrowers,
guarantors and their advocates
on account of biased orders favoring banks.
(e)
We have advised that Review and Appeal must be filed against such orders.
Court proceedings must be audio recorded and written record verbatim be
filed in the court. When there will be several cases, cases be filed in DRAT
to transfer the case to some other DRT. Side by side, writ be filed in High
Court so that injustice be thus caused is remedied. The affected borrowers
and guarantors should initiate suitable joint action.
(f) Many
of the Advocates do not believe in the remedy of Review. In this connection,
the following information will be useful.
Our Comments
(1) The
DRTs were created consequent on the Tiwari Committee Report on
‘Rehabilitation of Sick units’ in 1980. The said Committee recommended
formation of Tribunals which should be manned (i.e. Judges and Advocates) by
persons having knowledge about banking, industry and finance. The said
recommendation of 30 years back has not yet been implemented.
(2) As
per Article 141 of the Constitution of India, the law declared by the
Supreme Court shall be binding on all courts (which includes the Tribunals
i.e. DRTs also) in territory of India. The Supreme Court in its judgment
vide AIR 1969 SC 1167, Swaranlata vs Harendra Kumar has laid down in Para 6
as to how the trial is to be conducted. The DRTs are required to follow the
said law. Most of the judges of the DRTs are not following the said law.
(3) Violation
of law declared by the Supreme Court amounts to ‘Error Apparent on Face of
Records’ and hence such orders of the DRTs become amenable to correction by
way of Review.
(4) The
remedy of Review is as old as the present legal system vide Pg 842 in
“Commentaries on the Laws of England’ by Blackstone, 4th Edition
1938. This Commentary is referred to by our Supreme Court in its several
judgments. Many of our Advocates and Judges do not believe in the Review due
to their lack of knowledge.
(5) Recently
the Govt of India has filed Review in the matter of formation of SIT to
investigate the quantum of Black Money. Even in the famous case of Union
Carbide, the question of Review was raised. One of our clients got a
favorable Review order in 1997. If one goes through any Digest on CPC, he
will find that past 100 years there are many cases of successful Reviews.
(6) The
famous judgment on Reference on the matter of Review vide AIR (35) 1948
Allahabad 353, Behari Lal vs Gobardhan Lal is virtually a research on the
matter of Review past 150 years.
(7) The
tool of Review is most powerful whenever any Judge disregards his duty to do
justice. One will have to use the law declared by the Supreme Court in the
matter of Mohd Akram so that all the points raised during the arguments are
covered in the order.
(2) Cases against Netas seldom probed properly says Supreme Court
Dhananjay Mahapatra, TNN | Jun
29, 2011, 01.35am IST
http://timesofindia.indiatimes.com/india/Cases-against-netas-seldom-probed-properly-says-Supreme-Court/articleshow/9032130.cms
NEW
DELHI: The Supreme
Court has moved to plug loopholes in the judicial administration
system that are exploited to undermine probe into criminal cases involving
important political figures and inordinately delay their trial.
Terming the problem a 'grave and serious' danger to justice delivery system,
the apex court has sought a report from the Law Commission on the issue.
The initiative came in response to a PIL filed recently by V K Ohri which
stated that criminal cases against influential persons seldom got properly
investigated and tried fairly, expeditiously and in accordance with law.
"As a result, influential people/accused having committed heinous offences
are not brought to book and are mostly able to escape. This results, on many
occasions, into grave miscarriage of justice and erodes the credibility of
the criminal justice system," Ohri's counsel Prashant Bhushan told the
court.
A bench comprising Justices
Aftab Alam and R M Lodha said, "The problem identified in the
writ petition is indeed grave and requires serious consideration. However,
the court finds it difficult to deal with the issue in a meaningful way in
the absence of necessary data and all the facts and figures relevant to the
issue."
It added, "In these circumstances, apart from expecting a serious assistance
from the side of theUnion
of India, we would like the Law
Commission of India to examine the matter and submit its report
with a view to assist the court."
The court requested the commission to consider the issue and submit a
detailed report by end of August, when Ohri's petition would be taken up for
hearing afresh. The commission headed by Justice P V Reddy discussed the
issue last week and kept it for further deliberation next month.
The petitioner had cited the case of Shibu Soren, alleging that despite
being declared proclaimed offender in a case, he was able to avoid arrest
allegedly in connivance with police, and attended Parliament, election
meetings and became a minister at the Centre.
"Similar is the fate of thousands of cases against influential persons who
have committed gruesome crimes against common man and have gone scot free
due to delay in process manipulated by them because of their influence," the
petitioner said.
The outcome of the case could affect the proceedings of the 2G scam trial in
which former telecom minister A Raja, MP Kanimozhi and corporate biggies are
made accused after the CBI filed
a chargesheet alleging that the nation was cheated of Rs 22,000 crore
because of irregular allotment of spectrum.
DRT Solutions Weekly Mail – 166th Issue
dated 15th July ’11
(1) Mughal-era law still governs road accident relief: SC
Just
after becoming independent in 1947, we evolved our own constitution based on
various constitutions existing in the world at that time and it was
introduced in 1950. We took pride and announced that we have a world class
constitution. But we didn’t do anything to create world class courts, world
class advocates and world class judges. As a result now we have more than 3
crore cases pending in the courts and the high court judges are telling that
it will take 320 years to clear the pendency.
We
still continue to have not only British laws but even older Mughal-era laws
as may be seen from the following news item. The worst part is that despite
SC telling past 20 years to amend such laws, there is no effect on our Govt.
Dhananjay Mahapatra,
TNN | Jul
9, 2011, 01.53am IST
http://timesofindia.indiatimes.com/india/Mughal-era-law-still-governs-road-accident-relief-SC/articleshow/9156097.cms
NEW DELHI: Apart from the penal laws punishing drunk drivers running over
people, can the offender be sued by the victim's relatives for
compensation?
Yes, under a law that was enacted when the last Mughal Emperor, Bahadur
Shah Zafar, was the titular head of the throne at Delhi.
Taking note of this, the Supreme
Court has asked the Centre to immediately commence work to draft
a new law to replace the archaic legislation. It expressed serious concern
over the extreme inadequacies in the law governing suits for damage filed by
relatives to claim compensation for death due to rash and negligent act,
including drunken driving cases.
It rapped the government for not taking note of a 20-year-old apex court
judgment recommending drastic change in the 1855 law or a new legislation to
meet the present day challenges.
A bench of Justices
Aftab Alam and R M Lodha said: "We are constrained to observe
that a suit for damages for a murder of a person, like the present one, is
filed under Fatal Accidents Act, 1855. As the year of enactment shows, the
Act dates back to the period when the greater part of the country was under
the control of East
India Company with the last Mughal 'Emperor', Bahadur Shah Zafar,
as the ineffective, though titular monarch on the throne at Delhi."
The Act was enacted to provide compensation to families for loss occasioned
by the death of a person caused by actionable wrong. "It is a matter of
grave concern that such sensitive matters like payment of compensation and
damages for death resulting from a wrongful or negligent act are governed by
a law which is more than one and a half centuries old," said Justice Alam,
who wrote the judgment for the bench.
With anguish it remembered that a constitution bench of the Supreme Court in
a 1990 judgment had said: "The Fatal Accidents Act, on account of its
limited and restrictive application, is hardly suited to meet such
challenge. We are, therefore, of the opinion that the old antiquated Act
should be drastically amended or fresh legislation should be enacted which
should contain appropriate provisions" for various exigencies.
Justice Alam said: "It is unfortunate that the observations of the Supreme
Court have so far gone completely unheeded. We hope and trust that the Union
government would at least now take note of the urgent need to bring a
contemporaneous and comprehensive legislation on the subject and proceed to
act in the matter without further delay."
Our Comments
On
one hand the Govt. is not bothered to amend the Mughal and British-era laws,
it is enacting coercive legislations such as Securitisation Act, the Govt
wants DRTs to decide the cases within 6 months, the DRT Judges are being
appointed by the Ministry of Finance despite SC verdict that it should be
done by the Ministry of Law. Such inherently biased DRT Judges are inclined
to favour the banks. Thus there is no proper judicial management in our
country in any area whether it is Legislation, Courts or DRTs, appointment
and training of the Judges.
In
view of above facts and circumstances, we have come to the conclusion past
several years that the litigant borrowers and guarantors alone will have to
take the lead in safeguarding their own interests by understanding and using
the relevant legal provisions on which we throw light through our web sites
and the weekly mails.
(2) Our Per capita share in the Black
Money is
Rs. 4 lac 40 thousand on conservative estimate
Mr.
Firoz Poonawalla has sent a presentation on ‘Corruption in India’ vide
attachment this mail. From the
data given in the said presentation, we conclude as under:-
(a) Past
64 years, the politicians, bureaucrats and businessmen in collusion have
looted our hard earned money and the amount deposited by them in foreign
banks and tax havens is $ 1456 billion (1.4 Trillion dollars) i.e. Rs. 655
lac crores based on one dollar equals Rs. 45 (today’s rate is Rs. 47.96)
Thus from conservative estimates, per capital amount for 121 crores Indians
comes to Rs. 5 lac 40 thousand.
(b) The
public must quote this figure while talking to the politicians and
bureaucrats so that they are pressurized to get the said public money as
early as possible.
(c) There
are 40,000 cases in DRTs and each case on conservative estimate is affecting
10 persons and thus the affected persons have a sum of Rs 21,600 crores.
Imagine if this money is invested in the following DRTs aspects, the results
will be spectacular;-
(1) The
number of DRT judges should be increased to 10 times.
(2) The
said DRT Judges be imparted one year training in banking, industries,
finance, technology, trial court management etc.
(3) The
DRT advocates should have 6 months training in all the above aspects.
(4) There
should not be any court fee or deposits.
(5) Court
rooms should be modernized with latest facilities.
(6) Each
DRT will have its own web site and there will be live transmission of
proceedings.
(7) Each
case including counter-claims be decided in 9 months time.
(8) Such
quick decisions will improve the banks, industries, business, businessmen
and entrepreneurs.
Thus
we will have world class DRT courts, DRT advocates, DRT Judges and hence it
is our duty to devote portion of our time to get the said black money as
early as possible. Till such time we must not allow any injustice in the
present setup and as emphasized, the litigant borrowers alone will have to
involve themselves.
DRT Solutions Weekly Mail – 165th Issue dated 8th
July ’11
(1) No faith in Govt, SC appoints special team to trail blackmoney
http://www.indianexpress.com/news/No-faith-in-govt--SC-appoints-special-team-to-trail-blackmoney/812533/
Pulling up the government for the 'laggardly pace' in investigations into
the issue of black money stashed abroad, the Supreme Court today appointed a
Special Investigation Team (SIT) headed by former apex court judge B P
Jeevan Reddy to investigate and monitor steps taken to bring the unaccounted
money back home.
Another former apex court judge M B Shah will be Vice Chairman of the
13-member SIT into which Director of Research and Analysis Wing (RAW) has
been inducted.
A
bench comprising Justices B Sudershan Reddy and S S Nijjar, which is seized
of the issue raised in a PIL by noted jurist Ram Jethmalani and others,
pronounced the order saying monies generated and secreted away reveal the
degree of "softness of the State".
The
court rejected the demand for disclosing the names of individuals which had
figured in the list given by German government but ordered giving out the
names of those against whom show-cause notices have already been issued and
prosecution has taken place.
(2)
Black Money contains Portion for All Citizens
including that of Yourself, Bank Officials and Judges.
Past 64 years, the politicians, bureaucrats and businessmen in collusion
have looted our hard earned money. Had it been in our own country, it would
have been part of circulation but these thieves had been so callous that
they have transferred the loot to foreign banks. The foreign banks and
governments had been using and enjoying our money. The worst part is that
the same money becomes part of our borrowing through world bank and IMF.
Further the said thieves dare to invest in our country through Mauritius
Route.
The quantum of this money is so huge, modest estimates put it to something
like Rs. 400 lac crores.
The fault lies with us who are the owners of the said money and we are not
bothered about the daylight robbery and loot.
Had this money would have been in our country, we long back could have
better roads, railways, ports, aerodromes, etc.
Our first thought comes to the Judiciary and DRTs. Had this money been with
us, government would have not dared to restrict only 1% on the judiciary
compared with 8 to 12% in developed country. The civil trial courts would
have decided the cases in 9 months as in USA. Then there would have been no
need of DRTs. The bankers would have been more law abiding to implement the
RBI Guidelines, Govt policies and SC judgments. Hence all the litigant
borrows and guarantors are also suffering due to the said loot and robbery.
If we continue to sleep and ignore this important leakage of our hard earned
wealth, we are committing a serious wrong doing due to breach of our duty of
care towards our family and our children. Please devote portion of your time
daily say at least half an hour. There is sufficient material on the
internet and study the same, discuss in you circle and spread the message in
the society. We may resort to the following thought process and action
plan:-
(a)
Every citizen has the highest
office even more than President of India as he/she is a public servant. This
was stated by Justice Hegde and we have got the media video clip.
(b)
We need not follow any leader,
party, group etc. We should start from our home and discuss the matter with
whomsoever we come in contact.
(c)
We should talk to employees
particularly low paid servants and maids and explain them meaning of black
money and how it has been and continues to be looted.
(d)
We should tell them the
importance of election and following method of choosing candidates:
(i)
First preference to the
Independent Candidate. Visit home of that candidate and ascertain from his
neighbors whether he is honest and hard working.
(ii)
Second preference to the party
which had been least in power. It is well known that more no of years the
party is in power, more is the loot.
(e)
Learn video making on you
mobile. Whenever you visit house of the candidate and talk to them, make
video films for future records. During elections, make videos of the
promises made by the candidates.
(f)
Show these videos in your
circle, family and employees. On holidays visit the pockets of voters and
show them these videos. Post these videos on YouTube and internet. Send
these videos to TV Channels. Make CDs of these videos and handover to the
public.
(g)
If you do above, for next 2
years, there will be a sizable impact. The message will go to the
politicians(i.e. servants) that their masters have woken up from sleep as
the video record from the mobile, internet and TV Channels will prevent them
to fool their masters.
(h)
Study Constitution and SC
judgments so that you can point out to the politicians that they can not
fool the public and hence the black money has to come back, the guilty has
to be punished.
(i)
Whenever anyone of you visit my
office, we may exchange our views and videos.
(j)
Our goal is have a parliament of
such members who will selflessly work for the nation. They will enact ‘Right
to Recall’ (based on our video proofs), ‘Right to Reject’ (i.e. if none of
the candidate is competent, we shall reject all so that there will be
reelection. The parties will be afraid to spend money again and again and
hence they will have to come up with proper candidates. Here again our
videos will be of great use.)
(k)
This is a silent movement by the
citizens without aligning with any party, group, caste and creed. Citizens
working for betterment of their fellow citizens, their families and
children. Instead of complaining, if we do some solid work, it will be our
contribution to cherish our democracy for which nearly 7 lac persons
sacrificed their life during freedom movement.
DRT Solutions Weekly Mail – 164th Issue(2) dated 1st
July ’11
(1) Attitude of Executives in India – not bound by any law – proved by Govt.
& Police Action on 4th June ’11 midnight
The Executive Action by
the Police under the approval of the Govt on the midnight of 4th
June ’11 the following facts:-
(a)
As per the
Constitution of India and the provisions of various existing laws, the said
action prima facie is totally illegal.
(b)
The Govt
through Police not only committed the said illegal act openly, it continues
to justify it.
(c)
The Govt
committed another illegal act by filing a wrong affidavit before the Supreme
Court.
(d)
The above is
borne out of inherent attitude that the Executives in India that they are
not bound by any law and hence they are not afraid of any such violations.
If the affected person has any problem, he has to go to the Court of Law.
(e)
In the Court
of Law, the said affected person has to fight using his own money and time.
On the other hand, the said Executive will fight using public money and he
gets salary during the time he fights such battle.
(f)
The said
Executive will fight from the lower court upto the Supreme Court using all
technical provisions and hence the battle may take years and decades. Hence
the Executive is not at all afraid of such violations. That is why he feels
that he is not bound by any law.
(g)
In USA, all
suits are decided in 9 months and no case can be filed in Higher Courts
until and unless trial has established the controversial facts. In all
cases, the punishment is by way of damages and jail terms and that is why
the Executives are always afraid of taking law into their hands as happened
on 4th June ‘11’
(h)
In Germany
and few other nations, no recovery suit can be filed against a unit which is
under loss or closed. The unit needs to be brought in healthy state first
and then only suit can be filed. In Japan, such legal action is extremely
rare. In China, no such legal action is possible. In such nations, running
of the unit is paid maximum attention. The industrialist need not leave his
unit, the bank and other executives have to visit them to render necessary
service. In Japan, the Collector sits at a lower desk and public is given
higher seat. Even in British days, the collector when writing a letter to
public has to end the letter with ‘Yours most obedient servant’
(i)
Any way at
present, our country is being ruled by Executives worst than the British
days or other countries. Our Executives are not afraid of any law and hence
their attitude is that they need not follow any law.
(j)
We do not
know what trial will be conducted by the Supreme Court which has initiated a
suo motu action. In our view since all the facts are available in the media
video clips, the Supreme Court may come to the findings that the entry of
the Police itself was illegal and unwarranted, the sufferers must be given
all compensation, the activity on the Ramlila ground be allowed to be
renewed at the cost of the Executives and the Govt. All persons who ordered
and approved such action must be punished. If such action is not possible,
the Govt must tender its resignation.
(k)
We are
curiously watching whether our Constitution is in working condition or not.
Till such time, we need to take following precautions.
Precautions
(a)
Since we are
concerned with the defence of borrowers and guarantors in DRTs, accordingly
we are highlighting the precautions for them.
(b)
The Bank
Officials and the Judges are the Executives. We should never converse with
them orally.
(c)
If there is
any oral interaction, it must be recorded with least lapse of time which
they must approve.
(d)
The said
Executives are not to be trusted as they can change anytime to suit to their
interest.
(e)
The
Constitution and provisions of laws must be strictly applied when dealing
with the said Executives.
(f)
One can not
leave the things fully to intermediate agents liken the advocates. The
litigants or his competent and trusted representative other than the
advocate must always be present in the court of law. All proceedings must
contain the full record and certified copies be obtained periodically.
(g)
One should
have sufficient financial resources to fight the battle upto the Supreme
Court.
(h)
All orders
must be minutely examined and if there is any defect, it should be corrected
by the established process of Review and Appeal.
(i)
All orders
must contain all the points pressed during the arguments otherwise the
famous SC verdict in the matter of Mohd Akram vs Chief Election Commissioner
must be applied.
(j)
Keeping all
the above, we have been emphasizing past more than 10 years on our web site
as well as in all the discussions and conferences that the legal battle in
India is long drawn, time consuming and highly expensive.
(2) An Important Supreme Court Judgment relating to Sec 14 of the
Securitisation Act – Action u/s 14 is questionable u/s 17
The Supreme Court of India
in the matter of Kanaiyalal Lalchand Sachdev vs State of Maharashtra decided
on 07.02.11 has ruled that the order of the Magistrate u/s 14 can be
questioned before the DRT u/s 17 of the Act.
It is relevant to note
that we have been advising our clients that caveat should be filed in the
Court of DM or CMM so that opportunity is extended during the proceedings in
the said court. During the said opportunity, all the illegalities of the
bank as well as the ‘No Debt Due’ on account of the loss and damages be
emphasized and pressed. The Magistrate must cover all these points in his
order. Despite these if the order is adverse, appeal should be filed u/s 17
in DRT.
DRT Solutions Weekly Mail – 163rd Issue
dated 24th June ’11
(1) Startling Facts about the Ram Lila Maidan Episode – Defeat of the
Government
The
following are the startling facts about the Ram Lila Incidence happened on 5th June
2011 early hours:-
(a)
Past 9 months, Swami Ramdevji toured all the States of the country covering
one lac kms. It was non-stop having 2 to 4 functions every day without any
break. He had direct contact with nearly ten crore people mostly villagers.
Perhaps in the world history such tour of this magnitude has taken place. On
account of such mass following the Govt became damn scared. During this
period, there was no threat to his life.
(b)
Several months in advance, he declared about the ‘Anshan’ by one lac persons
at Ram Lila Ground’ on 4th June
2011. This was openly
shown in the posters put up in and around Delhi. Even a child was fully
knowing about the said Anshan – A peaceful protest. Such Anshan again has no
parallel in world history. Naturally the Govt was highly scared.
(c)
On 1st June when Swami
Ramdevji arrived in Delhi, 4 Ministers of the government went to the airport
to receive him. Further there was discussions at the airport itself for
nearly 3 hours. The said 4 Ministers included Seniormost Mr. Pranav
Mukherjee. These Ministers were aided by Principal Secretary and other
Secretaries. Thus an army of Ministers and Secretaries were counteracted by
Swami Ramdevji alone. He was well prepared with facts and figures on Black
Money and Corruption based on World Bank, Transparency International, RBI
etc. Mr. Ved Pratap Vaidik, a senior journalist who accompanied Swami
Ramdevji in a video stated that Ramdevji was alone sufficient to deal with
the said army of Ministers and Secretaries. Such welcome treatment has not
been given to even to Mr. Obama, the President of America. As a whole, Swami
Ramdevji was most powerful person in the eyes of the Govt. In fact the
Ministers intended to please Swami Ramdevji but he was least affected as he
was more bothered about the national issues of corruption and black money
rather than getting pleased by the Ministers.
(d) On
3rd, Mr. Kapil Sibbal played a mischief by taking a letter from
Mr. Balkrishnaji that Govt accepts all their demands and the Anshan will be
broken by 6th June. He
said that since Congress Party has ridiculed the Minister and to save their
faces, he desired to have such letter for showing to the Prime Minister.
Both Swami Ramdevji and Balkrishnaji are simple hearted persons and they
gave such letter.
(e)
The Ministers tried their best but could not influence Swami Ramdevji and
hence the said letter was shown to media by Kapil Sibbal. Thus there was
clearcut breach of trust and hence Swami Ramdevji hardened his stand.
(f)
The talks continued and again Govt sent another letter at 11 PM on 4th June
stating that Govt accepts all their demands and stand committed to fulfil
the same. It was just as simple reotoric. There was no effect of such letter
on Swami Ramdevji. Balkrishnaji said that suitable reply will be sent in the
morning.
(g)
Thus Govt failed in all their scheming moves. Sensing that on 5th June,
Anna Hazare was to meet Swami Ramdevji and it would be big showdown. Further
being Sunday, the entire nation will view such showdown on TV, the Govt was
left with no option to break the law. Hence it was a great defeat of the
Govt. It is said that even schemes were prepared to kill Swami Ramdevji.
(h)
The Govt is all powerful. It has huge Army, Police and Para-military forces.
It has full control on the media and judiciary. It has all experts on all
types of battles. It has no problem about financial resources. But such
powerful Govt, became mad to take action at midnight to attack innocent old
men, women and children who were deep in sleep and were fasting not for any
personal cause. They were not stopping any traffic, not stopping any train,
were not damaging any public property.
(i)
Swami Ramdevji offered to arrest him peacefully but the Govt desired to send
the mass of one lac people out of Delhi and hence they resorted to create
scare by teargas shelling and water jetting and the innocent people were
made to leave not only Pandal but Delhi.
(j)
The best part is that Swami Ramdevji saved himself and now disheartened the
Govt as to why he is alive. Swami Ramdevji was persuaded to live as
otherwise the Govt acting in most criminal bend of mind would have been
successful.
(k)
Swami Ramdevji is back again with renewed spirit. Daily on Ashtha TV, he is
dealing with all the above facts from 7AM to 8AM and 8PM to 9PM. His Yog
Shivir will be resumed from 1st July.
His plans for overseas Yog Shivir will be carried out. When he returns, he
will resume his massive touring of the villages.
(l)
He is supporting the proposed Anshan of Anna Hazare from 16th August.
(m)
The persons taking part in Anshan from 16th August
have been told to come prepared for the Police action just like the
incidence of Ram Lila Maidan. If they are jailed, there will be country wide
protest to go to Jail.
(n)
All the videos and visuals are being recorded by the public and these will
be used at the time of elections. Thus the forthcoming General Election will
prove the mandate of the people i.e. the famous saying by a Supreme Court of
USA and recalled by Justice Santosh Hegde – ‘ The highest office in a
democracy is held by citizens’
(1) Harrowing Experience of A Borrower – Unprofessional Treatment by
Advocates - Remedy
On 20th June
’11, a small borrower narrated his harrowing experience. He filed his appeal
u/s 17 of Securitisation Act in DRT Chennai. His advocate assured him that
nothing will happen to his property till the said appeal is decided. When
the case proceeded, the advocate told the borrower that the court has
decided to grant stay provided Rs. one lac is paid to the bank. The borrower
paid the said amount to the bank. The advocate continued telling the
borrower that the case was going on as usual in the DRT. After about 7
months, a party came to the borrower to vacate his house as it was sold to
him. When the borrower went to DRT, he was told that:-
(a) The
advocate never attended DRT.
(b) There
was no such order for payment of Rs. one lac to the bank.
(c) The
case was decided ex-parte.
(d) Auction
was held and the house was sold.
On
further investigation, the borrower found from the bank accounts that out of
the said Rs. one lac, Rs. 10,000=00 were paid to the Advocate. When the
borrower told all these things to the Advocate, the said Advocate requested
the borrower not to point out these facts to the DRT. Anther Advocate took
up the case and with dilly dally took lot of time and then finally said the
limitation for filing any appeal to DRAT was over. Obviously, the second
Advocate happen to be in league with the first Advocate.
At
this stage, the party rang to us. We advised him to write everything in his
own language, go to DRT and handover the write up to the Judge personally
stating as to how he was victimized by the Advocates.
Our Comments
To
avoid incidents as above, we have been telling our clients to present in all
proceedings, to take copies of the court proceedings, to be in touch with us
just after the proceedings and before the proceedings. We all along
emphasize that the stake of the client is highest and he himself has to
understand everything from us and then discuss the matter with the advocate
so that there are no chances of anybody misleading or deceiving. On all
dates, we must ensure proper recording of proceedings. Further always
written arguments be submitted. All orders must contain all the points
placed during arguments. The pleadings in all submissions including interim
applications must be self contained and one must prepare sufficiently in
advance. With such advice, many of our clients changed the advocates till
desired mode of working is achieved.
DRT Solutions Weekly Mail – 162nd Issue dated 17th June
’11
(1) Inherent Attitude of Public Servants – Amply Illustrated by Recent
Public Movements
The recent public
movements i.e. by Anna Hazare and Swami Ramdev have validated our long time
contentions as under:-
(a) Moghul
and British attacked other countries just as thieves attack prosperous
people to loot them. India was a prosperous society and hence the Moghul and
British came to India to rule with a view to loot and plunder the country as
it was a rich nation. The British created official organization of babus
i.e. public servants to accomplish their loot and plunder. Lord Macaulay
designed the education system to create army of such public servants.
(b) The
said public servants had to be obedient to their masters i.e. their seniors
and British Officers. More than 150 years of British rule i.e. spanning
several generations created mental make up of the said public servants to
rule over the public.
(c) British
established the Judicial System to decide the disputes between the public
but none can fight against the Govt., its agencies and public servants.
(d) Such
approach made the people in power and the public servants not to be afraid
of the rule of law or such people and servants can indulge in open violation
of law.
(e) We
got freedom. A committee under the chairmanship of Ambedkar and created our
Constitution by taking the best parts of various Constitutions existing at
that time in the world. They said that we have a created a world class
Constitution.
(f) The
Preamble in our constitution starts with
“We, the people of
India - - - to secure to all its citizens:
JUSTICE, social,
economic and political;
LIBERTY of
thought, expression, belief, faith and worship;
EQUALITY of status
and opportunity;
FRATERNITY
assuring the dignity of the individual and the unity of the Nation;
- - do HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSITITUTION.”
(g) The
British left the country but left behind the said babus i.e. public
servants. The place of British was taken by the Netas. The Netas soon in
connivance of babus aped the British Rule and indulged in loot and plunder
of the nation. The Constitution was a great hurdle to them and hence they
did not like the public should know about it.
(h) Had
the Netas and Babus been keen to bring in Democracy, there should have been
a nation wide education program to educate all Indians, children, women and
men to understand , grasp and
assimilate the Constitution. Had
such a thing would have been done, there should have been sufficient courts
with well trained advocates and judges imbibed with the values laid down by
our Constitution. But the Netas and Babus will never liked this to happen.
As a result there is huge black money, corruption and pendency in courts.
(i) We
continue to live in British Raj with their laws to rule over the public to
loot and plunder the country. Instead of the British, we have Netas and
Babus.
(j) The
existence of above facts and circumstances was
seen by the nation on the late night of 4th June
2011 at Ram Lila Maidan New Delhi at mid- night when armed police attacked
sleeping women, children and old person. This incidence was broadcast live
by various TV channels as the media persons were also sleeping with the said
gathering:-
(k) The
Indian Police was quite brutal with the old persons, ladies and even
children.
(l) The
said persons were deep in sleep.
(m) The
said persons were fasting since morning.
(n) They
came to Delhi from various cities of India. It was gathering of about one
lac persons.
(o) All
of a sudden, at about 1 AM Indian Standard Time, the Indian Police (about
15,000 in numbers and armed) wakes them up, orders them to leave the Pandal,
beats them with lathis, scare them with tear gas shells and water jets and
made them to run out of Delhi.
(p) Many
women were mishandled, their clothes were torn, some of them were made naked
and no wonder some might have been raped.
(q) Despite
injuries, the Police chased them out of Delhi. They were asked to board
whatever train was leaving Delhi.
(r) It
is said that about 5000 persons may be missing.
(s) The
Indian Media is not broadcasting the horror story of sufferers and missing
persons.
(t) Such
brutal and heinous action by Police on a large sleeping public has no
parallel in Human History. Even in Mahabharat days, no one was attacked in
night. Even in British days no such police action was done in night. All
warrants for arrest were served during day time with due notice. It is to be
noted that the persons were sleeping. They were fasting. They did not have
any personal cause. They were not obstructing any train or were not blocking
any road. They did not damage any public property. They had fundamental
rights. Duty of Police is to protect the citizens. Such brutal action has
been condemned globally.
(u) Police
told that they had done very little otherwise the orders from the higher ups
were for much stronger, tortuous and horror action so that none should dare
to come against the government.
(v) It
is a matter of record that 4 Top Ministers of Govt of India went to airport
to receive Baba Ramdev and had series of dialogues from 1st June
to 4th June and accordingly the activities at Ram Lila Ground were to
continue upto 6th June
if the Govt heeded to all the demands. On the 1st day
of fast i.e. 4th June
at 11:30 PM, Baba Ramdev was hoodwinked with a simple promise letter. Within
half an hour he and his one lac devotees who were sleeping were asked to
leave Delhi immediately. Under the Constitution, proper notice is to be
given so that if required the affected person can approach to Court of Law.
Police can not enter the premises at night. Male Police can not touch ladies
and children. Such blatant and open violation of law by Govt of India makes
the existing Govt non-existent. Country is now virtually being ruled by
Goonda elements. Such persons can go to any extent. They are all out to
protect their ill gotten black money. They don’t want to stop corruption.
They won’t allow public to speak anything against them otherwise they will
crush and destroy such opposition. When they can do so with a powerful
person like Baba Ramdev, ordinary citizen can not have a voice and is living
under conditions worst than British days.
(w) The
problems are more difficult and complex to solve, as the British could be
made to leave the country but the Netas and Babus can not be driven out. The
can misuse the law to rule over the country. They will use the tool of law
and police to create scare among the masses. They will not allow any
expression of dissent. They don’t want anyone to create hurdle in their
amassing the black money. They don’t want to take action against the corrupt
Netas and Babus. They don’t want the Judiciary to implement the
Constitution.
(x) Under
the above facts and circumstances, the attitude of public servants in banks
and judiciary will never change. They will help the banks and public
servants in banks. They will act against the public i.e. litigant borrowers
and guarantors.
(y) Keeping
the above state of affairs, we have been advising the Borrowers and
Guarantors to be cautious about the Babus in Banks, Financial Institutions
and Judiciary. That is why we have been advising to concentrate on the
thorough pleadings and perfect trials so that there is enough records of the
babus in banks and Judiciary.
(z) The
fight is now slowly coming before the public by the movements by persons
like Anna Hazare and Baba Ramdev. It took more than 150 years to drive away
the British. It is not known how much time it will take to make the country
free from the Netas and Babus.
(aa) We
have now advance tools of technology. There are more than 70 crores of
mobile phones. The public must make video record of all the talks with the
Netas and public servants. Such video clips be used at the time of election.
(bb) The
litigants in DRTs may make such video records in the banks and court rooms.
These video clips are the documents to be made part of the court records.
(cc) The
public must learn to record the TV Broadcast so that the clips be used at
the time of elections.
(dd) On
account of modern technology of video recordings, the Netas and Babus will
not be able to fool the public.
(ee) The
platform of the media will slowly bring about the constitutional values and
with passage of time, the attitude of netas and babus will change.
(ff) With
passage of time, the parliament will have better stuff working for the
nation and not for personal goals. Then only the British Laws will be
amended for Democratic Nation. The wrong doers whether Neta or Babu will be
quickly caught and punished. Then only we will be called as a free nation.
The battle till then is difficult, time consuming, painful needing lot of
sacrifice. Are you prepared?
(2) Creditor can not obtain forcible possession through police : High
Court
The
following material has been sent to us by our Associate Mr. N.K. Sharma,
ex-GM (Law):-
http://legalperspectives.blogspot.com/2011/05/creditor-cannot-obtain-forcible.html
“Creditor
cannot obtain forcible possession through police: High Court
In
its recently reported decision, Clarity Gold Pvt. Ltd. v. State Bank
of India (AIR 2011 Bom 42), the Bombay has declared that "no secured
creditor can by seeking assistance of police machinery unilaterally carry
out the eviction of the borrower and take over forcible possession of the
secured asset". The High Court was dealing with a matter relating to debt
recovery wherein it had been alleged that the possession of the assets with
the help of the police without orders of the Court. While the High Court did
not rule on the factual aspect, it indeed declared that it was no
permissible for the creditors to obtain possession through use of force.
The
High Court inter alia observed as under;
17
On behalf of the Petitioners, it has been urged that in the present case
possession was taken unlawfully from the Petitioners and forcibly without
recourse to the provisions of Section 14.
18
On 23 July 2010 the Bank addressed a letter to the Commissioner of Police,
Mumbai stating that under Section 13(4), its authorised officer was taking
necessary action in an area falling under the jurisdiction of the Malabar
Hill Police Station. A request was made in the letter to direct the Police
Station to provide constables for the protection of the authorised officer
of the Bank in discharging his official duties under the Act. This was
followed by a letter dated 23 July 2010 to the officer incharge of the
Malabar Hill Police Station. The letter also recorded that the Bank had
authorised an enforcement agency to assist and take all necessary actions
under the Act. At the foot of the letter, there is an endorsement to the
effect that on 27 July 2010, police bandobast should be provided. After
possession was taken, on 28 July 2010 a police complaint came to be lodged
by the Manager Accounts and by the employees of the Petitioners. The
complaint was to the following effect:
“We
hereby place on record that at 3 pm today some nearly 20 people along with
your API Mr. Machinder, Head Constable Mr. Patil and Constable Mr. Bhosle
forcefully barged into the above mentioned address and started abusing and
using the bad words. On enquiry they were telling that the State Bank of
Indore have Court order to take forceful possession of the flat. We told the
persons that the owner was not present and we have to take instructions. We
also asked them to show the Court order to which they refused and then they
started using bad language and started assaulting. Some of the unidentified
person from Bank assaulted us, slapped us pushed us and they used the force
and pushed us out of the house. The police was seeing this whole incident
but they were standing still and did not take any action When we came to the
police station the duty inspector has refused to take our complaint of
physical assault and forcefully taking the possession of flat without the
due of process of law.”
19
The Tribunal came to the conclusion that the Bank had taken forcible
possession of the property without seeking recourse to an order of the Chief
Metropolitan Magistrate under Section 14. Now, under Section 14, where the
possession of any secured asset is required to be taken by the secured
creditor, the secured creditor may make request in writing to the Chief
Metropolitan Magistrate or the District Magistrate concerned to take
possession. Thereupon, the Chief Metropolitan Magistrate or the District
Magistrate is empowered to take possession of the asset and documents
relating thereto and to forward them to the secured creditor. Under
subsection (2) the Chief Metropolitan Magistrate or the District Magistrate
may take or cause to be taken such steps and use or cause to be used such
force as may in his opinion be necessary. Section 14 of the Act is an
enabling provision under which the secured creditor is empowered to seek
recourse to the Chief Metropolitan Magistrate or, as the case may be, the
District Magistrate for the purpose of taking possession. Though section 14
is an enabling provision, it will be wholly impermissible for a secured
creditor, despite the provisions of Section 14, to take the law into his own
hands and to forcibly evict a borrower from the secured asset. Our legal
system is governed by the rule of law. If the borrower hands over possession
voluntarily to the secured creditor in pursuance of a notice under Section
13(4), it would be open to the secured creditor to take possession. But, if
possession is not voluntarily handed over, the secured creditor cannot take
the law into his own hands and secure vacant possession by taking recourse
to the police machinery. In such an event, the only remedy that is available
is to seek an appropriate order from the Chief Metropolitan Magistrate, or
as the case may be, the District Magistrate.Parliament has
specifically authorised in subsection (2) those authorities to take or cause
to be taken such steps and use or caused to be used such force as may be
necessary. Authorisation of the use of force for taking possession is
therefore a matter which lies in the jurisdiction and power of the
authorities prescribed by Section 14. No secured creditor can by seeking
assistance of police machinery unilaterally carry out the eviction of the
borrower and take over forcible possession of the secured asset.
20
Having said this, it is clear from the record, that the Debt Recovery
Tribunal did, as a matter of fact enter a finding of fact that possession
was forcibly taken over by a secured creditor in this case. However, the
Tribunal clarified that it was not resting its decision on that finding,
since quite independently the Tribunal had come to the conclusion that the
notice of possession and the sale notice were invalid. When an Appeal was
carried by the secured creditor, the Appellate Tribunal reversed the finding
of fact of the Tribunal on issues pertaining to the service and delivery of
the possession notice under Rule 8(1) and the publication of the possession
notice in the newspaper under Rule 8(2). The Appellate Tribunal did not
consider the correctness of the finding which was arrived at by the Tribunal
that forcible possession was taken by the secured creditor.
21
Whether forcible possession was taken by the secured creditor is essentially
a question of fact to be determined on the basis of the material on the
record. We are of the view that having regard to the parameters of the
jurisdiction under Article 226 of the Constitution, it would only be
appropriate and proper if that question is left to be decided by the
Appellate Tribunal which has a fact finding jurisdiction. There being no
finding of the Appellate Tribunal in that regard, we consider it appropriate
and proper to remit the proceeding back to the Appellate Tribunal only on
this aspect.”
DRT Solutions Weekly Mail – 161st Issue dated 9th June
’11
(1) Latest ‘Directions for Sale’ laid down by Supreme Court
On
14.03.11 the Supreme Court in the matter of KFC (i.e. Kerala Financial
Corporation) vs Vincent Paul & Another has laid down vide following extract,
the ‘Direction for Sale’ of the properties by the financial institutions and
banks:-
(i) The
decision/intention to bring the property for sale shall be published by way
of advertisement in two leading newspapers, one in vernacular language
having sufficient circulation in that locality.
(ii) Before conducting sale of immovable property, the
authority concerned shall obtain valuation of the property from an approved
valuer and in consultation with the secured creditor, fix the reserve price
of the property and may sell the whole or any part of such immovable secured
asset by any of the following methods:
(a) by
obtaining quotations from the persons dealing with similar secured assets
or otherwise interested in
buying such assets; or
(b) by
inviting tenders from the public; or
(c) by
holding public auction; or
(d) by
private treaty.
Among the above modes, inviting tenders from the public
or holding public auction is the best method for disposal of the properties
belonging to the State.
(iii) The authority concerned shall serve to the borrower
a notice of 30 days for sale of immovable
secured assets.
(iv) A highest bidder in public auction cannot have a
right to get the property or any privilege, unless the authority confirms
the auction sale, being fully satisfied that the property has
fetched the appropriate price and there has been no collusion between the
bidders.
(v) In the matter of sale of public property, the
dominant consideration is to secure the best price
for the property to be sold. This can be achieved only when there is maximum
public participation in the process of sale and everybody has an opportunity
of making an offer. It becomes a legal obligation on the part of the
authority that property be sold in such a manner that it may fetch the best
price.
(vi) The essential ingredients of sale are correct
valuation report and fixing the reserve price. In
case proper valuation has not been made and the reserve price is fixed
taking into consideration the inaccurate valuation report, the intending
buyers may not come forward treating the property as not worth purchase by
them.
(vii)
Reserve price means the price with which the public auction starts and the
auction bidders are not permitted to give bids below the said price, i.e.,
the minimum bid at auction.
(viii)
The debtor should be given a reasonable opportunity in regard to the
valuation of the property sought to be sold, in absence thereof the sale
would suffer from material irregularity where the debtor suffer substantial
injury by the sale.
Our Comments
(1) It
is interesting to note that this case relates to taking over the firm on
11.09.87 (24 years back) and in this judgment, the Supreme Court has found
that the KFC has not followed proper procedure for sale and hence the sale
was set aside. KFC was asked to return the deposit given by the buyer with
interest @9% within 30 days from the date of deposit till it is repaid. Thus
despite litigation past 24 years, the taking over of the assets and sale is
still could not be done.
(2) The
above ‘Directions for Sale’ are to be scrupulously followed. The borrower
should be very vigilant and alert and if there is any violation, it should
be raised before DRT and contested till correct decision is obtained. Proper
tools of Review, Appeal, Application u/s 151 of CPC should be used in DRT to
highest court. If all these measures are taken, it will be very difficult
for the financial institutions and banks to take over and sale any property.
It will be further extremely difficult when counter-claim or damages have
been filed as first the condition of ‘No Debt Due’ is to be decided. That
itself will take several years. Our intention is not to cause delay but to
achieve justice.
(3) We
have repeatedly expressed past more than 10 years that if pleadings are
prepared perfectly and case is fought perfectly on every date, the
institutions and banks can never win as they commit several wrong doings.
(4) In
the above case, the party did not file any counter-claim or damages. Had he
done so, he would have been in much stronger position and ultimately would
have won the case.
(5) In
view of above only we have been repeatedly emphasizing that the litigation
in Indian Courts are long drawn, time consuming and expensive as the
institutions and banks will fight upto the Supreme Court even for petty
matters. At present 70% cases pertain to such litigations only. Judiciary
says that there are more than 3 crore cases pending and it will take 320
years to clear the pendency.
(6) In
fact our entire democracy is failing because we continue to use the same
system established by the British. The system was to loot the country and
keep the public under rule. Just after getting independence, had there been
proper (i.e. of democratic setup) rule of law, cases could have been decided
quickly (In USA all suits are decided within 9 months) and guilty punished.
Since the Judicial wing is so inefficient (taking decades), the corruption
and black money continue to grow, no body is afraid of violations of law and
those occupying the chairs of ruler will continue to loot. Hence the most
important issue is ‘Earliest possible Judicial Reforms’ that alone will
solve various problems like black money, corruption, police excesses etc.
(7) There
is no shortcut to ‘Proper Judicial Reform’ We may learn from the work done
and experience gained in USA and UK where they have involved public and
applied modern management and technology. Since in our country the Ruler is
not doing with application of mind and is against involving public, the
public has started forcing it to do so.
(8) We
have been dealing with the above in a modest way in our web site since 2001,
news paper articles in 2001, conferences in 2007, 2008 and 2011 and weekly
mails since 2008.
(2) Our News Feeds in Global Cyber Media
We
have published our personal views in form of news feeds in the following
global cyber media. The said news feeds are also given below:-
http://connect.in.com/baba-ramdev/comments-263861.html
http://newshopper.sulekha.com/swami-ramdev-comments.htm
http://www.forestlaneshul.com/baba-ramdev-joining-politics-swami-ramdev-contesting-elections-latest-news-4139.html
http://www.torontosun.com/2011/06/06/indian-court-weighs-in-on-guru-protest
Posted on 06.06.11 at 9:30 PM
Brutal Police Action in India - There were more than 6000 armed policemen.
At 12:30 PM in the night of 5th June '11, they entered the 'Ram Lila Ground'
in Delhi where nearly 100,000 persons including saints, old, women, children
were deep in sleep. They were on fast since morning and came from distance
places from all over India. All of a sudden the said police men started
beating, abusing and asking these persons to vacate the place immediately.
It was a brutal and inhuman lathi charge, tear gas shelling and water jet
force were mindlessly used. Incidentally more than 50 media (electronic)
persons were also sleeping there. So entire worst incident of its kind was
video recorded from all angles. Live telecast was made and is being repeated
since then in all TV Channels in India. It was worst than the British days.
Old persons, ladies and children were beaten. Clothes of many ladies were
torn and removed making them naked. They were made to run to railway station
and forced to board in any train. Some of sick persons were forcibly
discharged from the hospitals. About 5000 persons are missing. There is wide
coverage by the TV Channels for more than 24 hours, there is no effect on
the Indian Govt. The reaction of Mr. Manmohan Singh is as if nothing
happened. He is the person solely responsible for such police action on
fasting persons and worst treatment because he has not taken any action so
far. Even in Mahabharat days, there is no attack during night. Even in
British days, advance notice is given for such police action. There is
country wide agitation and this is the beginning of fall of Mr. Manmohan
Singh and his corrupt government. This news feed is based on various videos
recorded from different TV news channels. We have kept copies of the said
video clips.
http://www.news.com.au/world/meet-indias-political-yoga-star-swami-ramdev/story-e6frfkyi-1226069166331
Posted on 07.06.11 at 6:37 AM
Shame Manmohan Singh. Attacking mob of fasting old, women
and children in sleep at 12:30 PM in night has no parallel even in
Mahabharat or British days. Is it their crime
to agitate in peaceful manner for important national issues in a democratic
country? If you feel any responsibility, please resign immediately.
| 