DRT  Legal  Solutions

(Debts Recovery Tribunal Legal Solutions) is an India based

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

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

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

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

 DRT Solutions Weekly Mail - 201st to 210th

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

 

 

 

DRT Solutions Weekly Mail – 210th Issue dated 18th May ’12

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

(1) Misconceptions of a DRT Advocate – Action after Notice u/s 13(2)  

Following is the extract from our web page vide link http://www.drtsolutions.com/securitisation_securitization_SARFAESI_SA_Act.htm 

One of our clients arranged a conference call during which he, his DRT Advocate and we interacted, his said advocate proposed certain  actions against which our comments were as under:-

(a)    The bank sent the legal notice u/s 13/2 of the Securitisation Act against which the borrower submitted the Representation and Objections within 60 days

(b)    The bank did not submit the reply within a week as prescribed u/s 13(3A).

(c)    The bank did not take any further action. It was learnt that the bank officials desired to cancel the first notice and to issue another notice.

(d)    The said DRT Advocate proposed to file SA in the DRT. We told him that the SA can be filed only after bank invokes any action u/s 13(4) or approaches to the Magistrate u/s 14 but not before that.

(e)    The said Advocate proposed to file suit in the civil court. We told him that such action will ultimately not be of any use due to bar of civil court as per Sec 34.

(f)      The said Advocate also proposed to file a writ petition in the High Court. We told him that the High Court will ultimately advise to approach DRT at appropriate time.

(g)    On account of above such misconceptions, we have been advising our clients to go through the relevant legal provisions and discuss the matter with us so that unnecessary and ineffective actions are not indulged in. The borrower should keep in view that all the government policies, RBI Guidelines, banking and general laws and above all the Constitution support business, trade and industries so that there is growth, employment and revenue generation. All these should be pleaded properly and at every time, the borrower should strictly follow the law and the procedure of law. Any shortcut and hurry will ultimately go against him. We are always available for suitable guidance and advice at any stage of litigation. Our web site and weekly mail are continuously updated to provide latest practical knowledge.      

(h)    On account of professional ethics and other obvious reasons, we never disclose name of the clients, advocates, DRTs etc but our aim is that the relevant  knowledge and experience must flow to one and all so that it will be useful to others.    

(2) Proposal by a DRT Advocate – To file Injunction Suit against Classification of Account into NPA

Following is the extract from our web page vide link http://www.drtsolutions.com/securitisation_securitization_SARFAESI_SA_Act.htm

One of well known DRT Advocates proposed filing an Injunction Suit against classification of account into NPA. We advised him not to do so on account of following reasons:-

(a)    The proceedings in the civil court are barred due to Sec 34 of the Securitisation Act and hence the efforts and expenses in the civil court will be wasted.

(b)    The DRT is the most suitable jurisdiction as it is a specialized court for the matters relating in business, industry and finance being dealt under the DRT Act and Securitisation Act.

(c)    The DRTs were formed on recommendation of the Tiwari Committee which in its report published by the RBI in 1984 said that the proposed tribunals (i.e. DRTs) should be manned (i.e. the DRT Advocates and DRT Judges) by persons having expertise in banking, industry and finance. Hence the DRT advocates and judges should undergo a training of at least 100 hours in banking, industry and finance. Such training should be repeated every two years.

(d)    The adjudication in DRTs is guided on the Principles of Natural Justice scope of which is much wider than that in CPC. In fact the CPC is codification of the said Principles of Natural Justice and hence the deficiencies in CPC could be corrected in the DRTs.

(e)    Classification of account into NPA is one of the ingredients to invoke sec 13(2) of the Securitisation Act. Such classification is a very tedious and exhaustive process being based on relevant RBI Guidelines. This could be one of the preliminary issues in the trial of the SA. If proper pleadings are made and thorough trial of the said preliminary issue is carried out, in most of the cases, the bankers will lose.

(f)      Hence in view of above, it will be better to carry out the proposed adjudication in DRTs rather than the civil courts.

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

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DRT Solutions Weekly Mail – 209th Issue dated 11th May ’12

All Weekly mails right from 1st Issue to latest, click links given at the top

(1) Sec 14 of Securitisation Act – Important Observations and Comments

 

Following is the extract from our web page vide link http://www.drtsolutions.com/securitisation_securitization_SARFAESI_SA_Act.htm

 

On account of legal ignorance, the borrowers and guarantors are highly scared of the physical possession orders for which are obtained by the banks from the Magistrate u/s 14. Our observations and comments are as under:-

(a)    After possession notice u/s 13(4), the borrower is entitled to file application u/s 17 before the DRT within 45 days of receipt and or publication of the said notice in two news papers.

(b)     Hence we have been advising our clients to file caveat with the Magistrate so that opportunity is given to the borrower to participate in the proceedings.

(c)    Further we have been advising our clients, to approach to DRT, the moment they come to know that the bank has approached the Magistrate.

(d)    The Magistrate is bound to take action on the said caveat as well as to extend opportunity for hearing.

(e)    If there are wrong doings by the bank upto the stage of 13(4), the Magistrate is bound to refuse to act u/s 14.

(f)      In case the Magistrate orders for physical possession, his order is appealable u/s 17 before the DRT.

(g)    Keeping all the above aspects and implications in view, we cove all the related aspects when we prepare the objections and representation against the notice u/s 13(2) including the claim for loss and damages. Such pleadings become useful and handy while dealing with the Magistrate as well as the DRT. 

(h)    The gist of the approach is that on account of huge loss and damages due to the wrong doings of the bank, there is ‘No Debt Due’, hence there is no cause for recovery. Until and unless this issue is settled by the DRT, no physical possession can be taken. This will be done only after final order against the SA u/s 17. As per the Supreme Court in the matter of Mardia Chemicals, the said SA is in lieu of a suit. The adjudication of a suit takes time of several years. Since the higher authorities in the bank are also impleaded in the said suit, lot of pressure is created and ultimately, the bank officers have no option but to settle as per the terms desired by the borrower. 

(i)      In above dealings, one should study and keep in view all the related case laws. Even there may be occasions to file Review and Appeal.

(2) Useful Tips for DRT Advocates - Empowerment

 

   The following is the extract from our web page vide link    http://www.drtsolutions.com/useful_tips.htm

●  The Client is a sufferer. He is like a patient having acute pain. He comes to you just like the patient approaches a doctor to get relief. Please attend to him like a doctor.

●   Listen to him sympathetically. Enquire what immediate relief he needs. Please tell him frankly and honestly what can be done and what can not be done.

●  His telephone calls be attended to immediately. The international norms are response within 3 rings. Sometimes his requirements are immediate and hence it will be better for you to carry your mobile at all places so that response is quick and immediate whether you are in the bath room, taking food or doing pooja. In your absence, the call should be attended to by responsible person like your wife or other person.

●   Please tell him the overall litigation process and the costs involved. He must understand clearly whether he can afford the costs and expanses.

●    Please enquire whether he has any experience of litigation process and court battles.

●   Does he understand and know the material facts thoroughly. These facts include the working of industry, industrial finance, banking, working capital, industrial sickness, documentation, understanding of law involved at every activity etc. If he does not understand and know, he will have to get the cases prepared by experts in the line like us otherwise he should not hope for relief or any winning strategy.

●   Does he have proper documents to support the material facts of the case?

●   Does he understand the aims, objectives and scheme of the DRT Act and Securitisation Act?

●   Does he understand that despite all possible efforts if the case is decided against him in DRT, he may have to appeal to ADRT (i.e. Appellate DRT)?

●   Does he understand that in the said appeal, he has to pay the appeal fee as well as deposit to the extent of 25% to 50% of the debt due decided by the DRT?

●   Does he understand that either he has to take care of this aspect of 50% of deposit in preparing his case right in the beginning so that during trial it is established whether it is possible for him to pay such deposit or not when called for?

●    Does he understand the meaning and scope of counter-claim?

●    Does he understand the law of torts?

●    Does he understand RBI Guidelines?

●    Does he understand the law of damages?

●   Has he gone through our web site www.drtsolutions.com? Has he taken print of the site and studied it thoroughly well?

●   If he depends on a consultant or his law officer, are those persons competent enough for understanding the above?

●   Does he understand the opponents i.e. the bank employees, their law departments, law officers, counsels, Indian Bank Association, DRTs, supporting forces in Ministry of Finance, Ministry of Law, Govt. of India, general public and courts.

●   Several DRT advocates in the country are handling counter-claims prepared by us. These advocates at these places will also be available. We are having constant interactions with the clients and visitors of our site. Accordingly the site is updated and hence it gets richer day by day. You will gain a lot if you and your clients visit it regularly every week. Our e-mail IDs are ramkishandrt@gmail.com  if you inform your contact details through e-mail, we shall send you our weekly news letter free of costs. It contains lot of useful and latest material.

●  Normally we don't advise hiring of our advocates from Indore as they are comparatively expensive and further the client will have to bear additional travelling, lodging and boarding, daily charges etc even for ineffective dates. Hence it will be better that the client is always and constantly in touch with us and then interacts with his local advocate.

●  When you are handling the DRT case of a borrower, explain him the implications of the pleadings in detail. Sit with him at least a week in advance of the date. Encourage him to study the provisions of law, let him read the judgment. Ask him to attend the date in the court. Encourage him to draft the applications etc. All this will be a great help to you and in turn will greatly contribute to the success of the case. With such approach and success, you will get more clients and with passage of time, better judgment will be achieved.

 

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DRT Solutions Weekly Mail – 208th Issue dated 4th May ’12

All Weekly mails right from 1st Issue to latest, click links given at the top

(1) Amendment of SA to include Loss & Damages

 

We are getting several cases where, the SA does not include various wrong doings committed by the lender as well as the consequent Loss and Damages. Under such facts and circumstances, the SA should be amended as early as possible to include the said wrong doings as well as the said consequent loss and damages. Normally such amendment should be allowed by the DRTs. If there is any hitch, the DRT should be requested to pass suitable order. After examining the content of the said order, subsequent step should be taken to initiate Review and or Appeal. After the amendment is allowed, the situation of ‘No Debt Due’ will be achieved whereby the secured assets can not be touched till the complete SA including the loss and damages are adjucated upon fully.

(2) Cross examination of Bank Officials in SA

 

As per the law laid down by the Supreme Court in the matter of Mardia Chemicals, the SA is in lieu of a suit. DRT being akin to a trial court to determine the fact, if is convinced that the controversial facts require oral examination of the parties and their witnesses, has full powers to examine and cross examine the said officials. This will depend on the pleadings, reply by the bank, relevant documents, issues framed and material controversies.

 

 

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DRT Solutions Weekly Mail – 207th Issue dated 27th April ’12

All Weekly mails right from 1st Issue to latest, click links given at the top

(1) Disagreement among Partners – Advantage to the Bank
 
In case of one of our clients, the SA was filed with the assumption that all the 8 parners were having the consent. After filing the SA, two of the partners backed out and became friendly with the bank. The bank officials got prepared adverse affidavits. In order to avoid such incidence in future, our advice is as under:-
(a)    The SA should be signed by all the partners.
(b)    Power of Attorney be obtained from all the partners.
 
(2) DRT has all Powers to conduct Full Fledged Trial
 
We receive lot of queries when the borrowers are advised to approach either High Court or Civil Court. Our views are as under:-
(a)    The preambles in the DRT Act mentions that the DRTs have been established for expeditious adjudication and recovery of debts due to the banks and the financial institutions and for matters connected therewith or incidental thereto.
(b)    The preambles in the Securitisation Act mentions that the DRTs have been established to adjudicate the matters relating to securitisation and reconstruction of financial assets and enforecement of security interest and for for matters connected therewith or incidental thereto.
(c)    As per the law laid down by the Supreme Court in the matter of Mardia Chemicals, the application u/s 17 of the Securitisation Act is in lieu of a suit. Further the Section 34 of the said Act lays down that the civil court will not have jurisdiction in the matters covered by the said Act. Further on account of minimum 25% deposit condition for appeal against the orders of the DRT, the said appeal is nearly impossible.
(d)    Thus considering all the aspects covered by above, it is concluded that DRT is to function like a full fledged trial court with expectations of better efficiency compared with a civil court and it will deal with all the matters connected with the recovery actions of the banks as well as the loss, damages and or counter-claim of the borrowers.
(3) Court Judgments favouring Borrowers
 
Following are few judgments favouring borrowers:-
(a)    Securitisation Act – Demand Notice u/s 13(2) – Requirement of – Notice to be served on each and every person involved in transacation – Appeal pending with DRT – Auction sale stayed by Allahabad High Court till disposal of SA – citiation – [2012(1) DRTC 460 (All)]
(b)    Securitisation Act – Auction Sale – Nothing on record to show that Bank has affixed notice in the conspicuous place of immovable property – Non-compliance of sub-rule (7) of Rule 8 which is mandatory – would render sale invalid – Sale set aside by Madras High Court – citiation - [2012(1) DRTC 520 (Mad)]
(c)    Securitisation Act – sale by private treaty also permissible – only one condition being that it shall be on such terms as settled between the parties in writing – presence of debtor and his willingness in writing are essential – Bank Manager exceeded his authority for reasons known to him – proper procedure not followed by bank – the auction purchaser directed to hand over the possession back to the bank after getting refund of the sale amount within a  week by the bank- [2012(1) DRTC 525 (Mad)]
 

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DRT Solutions Weekly Mail – 206th Issue dated 20th April ’12

(1) Interactions with an Ex-PO DRT

 

We happen to interact with an Ex-PO DRT. His observations and views were as under:-

(a)                The advocates of the borrowers are not having proper knowledge of the subject, factual as well as legal.

(b)                In many cases, the declaration of the NPA by the bank is not in accordance with the RBI Guidelines.

(c)                The attitude of the bank officials requires change as many cases can be settled amicably instead of long drawn legal battle.

(d)                He appreciated our web site as well as the DVDs of the conference held by us.

Our Views

 

(a)    We also held analogous views, rather it is validation of our approach to bank litigations in DRTs.

(b)    In fact the Tiwari Committee (on whose recommendation the DRTs were formed) in 1984 recommended that the DRTs should be manned by persons (Advocates and the POs) should have specialized knowledge in the functioning of banks, financial institutions and industry. This has not yet been done. On the other hand, when the DRTs were established, mostly fresh advoctes started their practice there. Many of the POs were from the legal stream i.e. from the civil court. As a result, proper trials were not conducted, procedures with shortcuts were introduced and hence the ultimate purpose of ‘Justice’ was nowhere visible leave alone achieved.

(c)    In view of above, we stepped in to introduce most appropriate pleadings based on proper knowledge of banking, industry, fiance, law of torts, law of damages, procedural law etc.

(d)    On one hand the banks have multiple securities by way of CRR, mortgage, collateral, personal guarantee, support by the government etc. On the other, the borrower is compelled to surrender all his rights and assets fully in favour of the lender. As a result, during the sickness of his business (that is when there is no surplus generation), survival of his own, his family and his employees becomes extremely difficult. At such juncture, the bank initiates legal action, the borrower does not have even adequate financial resources to fight the legal battle. It is most unequal fight, a fight with the Mightiest with the Weakest.   

(e)    Keeping all the above aspects in view, we selected few clients with capabilites to fight, prepared proper pleadings with counter-claim and damges due to wrong doings of the lenders, guided those clients on every date. The judgments coming out of such approach started becoming leading judgments helping those who could not afford the legal fight on their own.

(f)      During the DRT conferences held by us at Indore in May 2008 and January 2011, our clients and their advocates had brain storming interactions. With effect from 17th May  2008 we introduced our ‘Weekly Mail’ which have become quite popular. Our DVDs and the Weekly Mails provide quite good resource for practical knowledge to borrowers and gurantors facing DRT litigation.

(g)    Despite above, right from the inception, we held the view that the best recovery is out of wealth generated by running the unit. Surplus generation is the best and rather the only security. But if the lender instead of recognising the same is bent upon legal fight, the borrower does not have any other option but to fight on the above pattern devised by us.

 

(2) Running off the Unit during Litigation

 

(a)    The DRT is first and the last last court to determine the material facts judicially.

(b)    The bank litigations are based on documents which are in power and possession of the banks.

(c)    The material facts relating to appraisal of the project and  sanction and flow of bank finance for a business and industrial project are quite complex. Hence the pleadings are required to be prepard by persons having mastery of facts and mastery of law concering the said complex facts. It is reiterated that the pleadings must include the counter-claim and or damages which are almost in all the cases much more than the claim of the lender resulting into ‘No Debt Due’ situation.

(d)    Full fledged trial to establish the said facts will take massive amount of time spread over few years. If there is any attempt to expedite or cut short the process, it will result in much more time due to intervening Reviews and Appeals.

(e)    Thus on account of litigation period spread over years,  we advise our clients to find out ways and means to run their unit and create sufficient reserve and surplus. Strength and experience thus gained will open up several options for the borrower including settlement at most favorable terms.

(f)      The above approach will also provide valuable feedback to the banks so that they don’t run to legal recovery instead of solving the problem of the borrower. The leading judgments thus generated will also improve the legal process in DRTs.

 

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DRT Solutions Weekly Mail – 205th Issue dated 13th April ’12

 

(1) Public Notice for Sale – during the Adjudication of SA – Arbitrary and Illegal Action

 

Having constituted the DRTs and having enacted the special acts like the DRT Act and the Securitisation Act, the banks thought that they will have quick recovery of their alleged dues. This was a wishful thinking. The DRTs are trial courts and have to function in accordance with the law and procedure of law. The impatience of the bank officials results in violation of the said law and procedure of law. As a result the recovery gets inordinately delayed. We have observed that even in the very initial stage of the SA, the banks are going for making public sale notices of the secured assets. This is highly illegal and arbitrary. Our views are as under:-

(a)    As per the law declared by the Supreme Court of India in the matter of Mardia Chemicals, the SA is in lieu of a suit on account of bar of civil court due to Sec 34 of the Act. Hence all the wrong doings of the bank must be pleaded in the SA including the loss and damages due to the said wrong doings. In almost all the cases, the said loss and damages are much more than the alleged claim of the bank and hence prima facie, there is ‘No Debt Due’, Under such circumstances, no recovery action can be initiated by the bank till the SA is fully adjudicated.

(b)    In view of above, any paper publication for sale of the secured assets before final adjudication of the SA is arbitrary and illegal.

 

(2) Asking for Deposit under ‘No Debt Due’ situation for Staying Disposal Action is Arbitrary and Illegal

 

Under the ‘No Debt Due’ situation described vide item no (1) above, asking for any Deposit for staying disposal action is arbitrary and illegal. Our comments are as under:-

(a)    As per the law declared by the Supreme Court of India in the matter of Mardia Chemicals, the SA is in lieu of a suit. Accordingly the prescribed court fee is paid on the SA.

(b)    Having paid the court fee and under the ‘No Debt Due; situation, if bank initiates any recovery action, the same should be stayed (without any deposit) till said SA is fully decided.

 

 

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DRT Solutions Weekly Mail – 204th Issue dated 6th April ’12

 

(1) Important Judgments favouring Borrowers

Now with the constant fight by the Borrowers and Guarantors, few Judgments have been arrived at to be favouring them. Some of them are as under:-

(a) [2012 (1) DRTC 407 (P & H)], Sushil Kumar vs State Bank of Patiala – Securtisation Act 2002, Sec 13(4) – Security Interest -  Notice to take over possession – Bank not issued any notice u/s 13(2) – Action of the Bank in giving notice to take over possession can not be sustained – Said noitce set aside.

(b) [2012 (1) DRTC 398 (Mad)], Central Bank of India vs DRT Coimbatore – Compromise entered between bank and borrower – Settlement in Lok Adalat referred to DRT – DRT made  unnecessary and unwarranted comments about authority of the bank in arriving at settlement – It is duty of the court to encourage same – When bank accepted certain amount for settlement, it is not for DRT to question same either regarding quntum of interest or quantum of waiver – DRT has not chosen to appreciate latest concepts which has developed in the country – impugned order of DRT set aside – DRT directed to record award passed by Lok Adalalt and give its formal order.

(c) [2012 (1) DRTC 392 (Knt)], N.B. Gurudeva vs State Bank of Mysore – Securitisation Act Sec 13 – Contract Act Sec 133 to 135 – Security Interest – Enforcement of – Notice u/s 13(2) issued to guarantor – Guarantor filing writ petition – Parties entering into compromise to exclusion of guarantor – Novation of contract – Liability of guarantor ceased to exist – Bank initiiating proceeding for recovery of dues pursuant to compromise arrived at between bank and principal debtor, as if said amount is due under original loan transaction – Notice issued to guarantor held without basis and quashed – property of guarantor can not be attached.

 (1) M.J. Antony in Business Standard issue dated 5th April – ‘Improved Allocations for Court Infrastructures are only a Small Step’

http://business-standard.com/india/news/m-j-antony-scratchthe-surface/469971/

The good news from the Union Budget is its grudging recognition that more funds are urgently required to improve the infrastructure of the legal system. The allocation for computerisation of district and subordinate courts has been doubled from Rs 105 crore in 2011-12 to Rs 213.66 crore in 2012-13. Allocations for infrastructural facilities have been increased by Rs 4.57 crore to Rs 510 crore for the next fiscal from Rs 505.43 crore in 2011-12. The National Mission for Justice Delivery and Legal Reforms gets Rs 37.50 crore.

State governments will get Rs 109 crore to assist the establishment of Gram Nyayalayas, taking justice to the door steps. Last year, the allocation was Rs 25 crore. The Plan expenditure has been raised from Rs 772 crore to Rs 1,050 crore. Under the non-Plan expenditure, the increase is Rs 53.32 crore from Rs 432.32 crore in 2011-12 to Rs 485.62 crore. Legal aid and expenses on the department of legal affairs have been allocated Rs 71.93 crore.

One could go on quoting more figures like the Budget analysts love to do. Those ordinary people who are not well-versed in fiscal jugglery judge things by what is going on at the grass roots. That is the bad news.

It has been the enduring gripe of legal professionals that their province gets less than two per cent of the Budget and the states are equally tight-fisted. The men in black robes have reason to be jealous of the men in uniform, who take the bulk of the funds and reveal only during skirmishes with the civilian authorities that the equipment they bought were night-blind or the missile ejector and its timer were both defective. A generation has passed without knowing the agony of a full-scale war. In contrast, litigation three generations old does not surprise anyone.

Occasionally, the plight of the courts makes headlines. Last month, it was reported that the National Green Tribunal was operating from a guest house in the capital. Until recently, the Employees Provident Fund Appellate Tribunal was functioning from an Ambassador car. Some tribunals seem to be housed in what appear to be former princes’ dancing halls or stables around India Gate. The Chief Justice of India has lamented that the conditions in the mofussils are abominable — no stationery or plumbing, much like primary schools there.

The Supreme Court itself has a few cases like the All India Judicial Officers Association vs Union of India that highlight the plight of the subordinate judiciary carrying the load of some 20 million cases. A few petitions on this, like that of the Salem Advocates’ Association, have been on dockets for years and the progress has been moderate. The court normally calls for data, more data and meta data. Sometimes it appoints a committee of judges and jurists to study certain aspects. The reports are received, filed and one copy is ordered to be sent to the law ministry, where again it is stacked high up. But these reports discuss serious issues and before the judicial system crashes, the rulers can take cues from it. In the fiscal context, one of the suggestions made by a Supreme Court committee is the need for a judicial impact assessment before a Bill is introduced in Parliament. The law makers are adding more legislation to an already over-legislated nation, often without even bothering to discuss the details of the provisions and their financial impact.

The Bills are normally accompanied by a financial memorandum indicating the expenditure on implementing the law concerned. But they do not detail the additional burden on the judicial system. Therefore, the expenditure required for adjudication of cases from the new law should be estimated and adequate budgetary provision must be made for it.

Though the concurrent list of the Constitution makes it obligatory for the Centre to bear the financial burden owing to the new legislation, in reality, the states are saddled with it since the subordinate courts are maintained by them. According to the recommendations, this problem must be remedied by the Planning Commission and the Finance Commission through equitable distribution of funds.

Apart from such recommendations made by expert panels and the Law Commission gathering dust, one other handicap in treating the problem is the secrecy that is ingrained in the judiciary. Until recently, courts were reluctant to disclose the number and nature of the cases pending before them at all levels. Sketchy and outdated figures were disclosed during question hour in Parliament.

After the Right to Information Act, the courts have been forced to let in more light into the registry. Even then, the Supreme Court’s quarterly journal, Court News, is running three quarters late. Judges seem to fear disclosure of information, like some patients suffering from white-coat hypertension and concealing symptoms. As a result, there is no discussion about budgetary allocations in the media or at ubiquitous seminars. Even as lobbyists of every kind descend on the capital in the Budget season, there is no one to speak up for the judiciary or the despondent litigants. That’s the rub.

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DRT Solutions Weekly Mail – 203rd Issue dated 30th March ’12

 

 

1) Pending DRT cases spike by 70% in 2011 to Rs. 1.57 lac crores amid slowdown, inefficiency

Published in ‘Legally India’ and Written by Kian Ganz & Remya Nair (Mint)  | Wednesday, 28 March 2012 12:32

http://www.legallyindia.com/201203282685/Bar-Bench-Litigation/exclusive-pending-drt-cases-spike-by-70-in-2011-to-rs-157-trn-amid-slowdown-inefficiency

The number of pending cases at India’s debt recovery tribunals (DRT) has increased by almost 70% in about a year, with the economic slowdown affecting the repaying capacity of borrowers and thus worsening the asset quality of banks.

Our Comments

With the slow down, weak government, poor legal management in public sector banks and not having trained lawyers and judges in DRTs, the pendency is bound to go up year by year as happened in civil courts where the pendency is now more than 3 crore cases and it is said that it will take 320 years to clear the pendency.

Also, slow clearances of cases in the tribunals is adding to the pendency, say lawyers and analysts.

Our Comments

The disposal of the cases in DRTs will progressively take more and more time as the borrowers are getting aware about their rights vis a vis the wrong doings committed by the banks. As a result there are now several judgments of DRTs and DRATs which are going against the banks.

In response to a question in the Lok Sabha on 23 March 2012, the finance ministry said 63,669 cases were pending in the tribunals as of 31 January 2012. On 31 December 2010, 37,616 cases were pending, according to a Right to Information (RTI) request filed by Prashant Reddy, an intellectual property (IP) lawyer who also blogs on industry blog Spicy IP.

There are 33 DRTs in India, with three each in Chennai, Delhi, Kolkata and Mumbai—the last three having the maximum number of pending cases. The amount locked in as a result was Rs1.57 trillion as on 31 January, against Rs1.13 trillion as on 31 December 2010.Latest Legal Jobs
 

DRTs are semi-judicial authorities that help banks by speeding up the recovery process through steps such as issuance of attachment orders.

An official with the Indian Banks’ Association, who did not want to be identified, cited two reasons for the sharp increase in the number of pending cases at the debt tribunals.

“First is that more banks are approaching the DRTs to recover their bad debts,” this official said. “The second reason is that borrowers are also going to DRTs to challenge actions taken by banks under the Sarfaesi Act.”

Our Comments

There is no option for the borrowers otherwise, the wrong doings committed by the bankers will never come to light. In fact the loss and damages suffered by the borrowers are much more than the claim of the bank and hence there is ‘No Debt Due’ Accordingly, no recovery can be indulged till the said ‘No Debt Due’ is finally decided by the court.

The Sarfaesi Act, or Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, allows banks to auction properties of borrowers who fail to repay their loans, or recover their loans through securitization and asset reconstruction.

Of the 63,669 pending cases, 37,654 have been pending for more than a year. The finance ministry said a committee headed by a chairperson of the debt recovery appellate tribunal is examining the “legal, structural, administrative, monitoring and supervisory systems” of DRTs and will recommend measures to make these tribunals more effective and efficient.

“It is often challenging for DRTs to get all the interested parties together at one time. Hence, it becomes a long-drawn process. Banks facing large downside risks (dilution of market value of loan assets) try to settle NPAs (non-performing assets or bad loans) through one-time settlements or corporate debt restructuring,” said Robin Roy, associate director (financial services), at PricewaterhouseCoopers Pvt. Ltd. “Banks do a cost-benefit analysis before taking cases to DRTs as there could be substantial costs attached (long waiting periods) to going to DRTs.”

Banks have three legal options for resolving NPAs—the Sarfaesi Act, DRTs, and Lok Adalats, which are non formal alternative court, he said, adding that while loans above Rs10 lakh go to DRTs there is no sector-specific condition for approaching the tribunals.

Dushyant Kumar Mahant, a lawyer who has represented borrowers in the DRTs several times, said the case load has risen dramatically particularly because of the steep increase in property prices, which has resulted in many borrowers taking loans that they end up not being able to service.

The low disposal rate at the DRTs was caused by infrastructure problems, inadequate staffing also at senior levels, and non-cooperation by borrowers’ lawyers, said Navneet Gupta, Delhi-based partner at law firm SNG & Partners and who often represents banks.

Our Comments

In fact, the banks and their advocates are not permitting the adjudication of the wrong doings committed by the banks, further they are putting lot of hurdles against the loss and damages. On account of these factors, the entire adjudication gets unduly delayed.

Another lawyer who did not want to be identified blamed the bodies overseeing the DRTs and other tribunals. “The main problem is the appointments. It takes them 6 or 7 months to appoint the presiding officer and then the presiding officer has only a term of five years under the recovery of bad debt Act (Recovery of Debt due to Banks and Financial Institutions Act, 1993,) and they will start looking for a new guy after the old guy retires,” this lawyer said.

Our Comments

The bank lobby is not permitting transfer of the DRTs from the administrative control of the Ministry of Finance to Ministry of Law despite clearcut verdict of the Supreme Court. Consequently the judges in DRTs are biased towards the bankers.

“It’s very lacklustre,” said one DRT lawyer about the presiding officers at many DRTs. “You go over there and even if (you) ask to present an argument over there, the matter is adjourned for one reason or another—(the officers) don’t have the bent of mind for disposal rate. It is very difficult for pendency to go down (this way).”

Our Final Comments

(a)      The Tiwari Committee on whose recommendations, the DRTs were constituted recommended in 1984  that the advocates and judges in DRTs should have knowledge of banking , industry and finance. It has not yet been done. There should be at least 6 months courses for them with 15 days refresher course every year. Then only quality and efficiency of adjudication in DRTs will improve.

(b)      As per Supreme Court, the application u/s 17 of the Securitisation Act is in lieu of a civil suit. Hence its thorough adjudication will take several years. Any attempt to adopt any shortcut (as at present) will ultimately cause huge delay on account of multiple reviews and appeals.

(c)      Bank litigations are primarily based on documents. All the documents are in power and possession of banks. The banks avoid to produce all the documents otherwise, the banks will lose most of the cases. In absence of all the documents, the trial is never complete. Such incomplete trials result in huge delay and pendency.

(d)      The banks are required to follow government policies and RBI Guidelines. Hence the relations between the bank and borrower in India are tortious in nature as against the mostly prevalent mistaken view of contractual. Most of the Indian advocates are not versed in Law of Torts and hence the pleadings based on contract are defective right from inception and hence trial does not result in determination of actual controversies. Further the damages based on such defective concepts of contract are very much limited and difficult to prove. Until and unless the DRT Advocate and Judges understand the law of torts and damages based on torts, the result of such bank litigation will be misleadings and inconclusive.

(e)      As emphsized by such since last 12 years on our website that perfect pleadings must be drawn by such persons who have mastery of law (i.e. torts, evidance, damages, CPC etc.) and mastery of facts (i.e. banking, industry and finance etc) and case perfectly contested on every date in DRTs by such persons, then only satisfactory trial can be achieved. With such approach only some of our clients have achieved either victory over the banks or settled as low as 5%.

(f)        Till such time, all the above requirements are fulfilled, the DRTs will continue to grope in dark, the litigants will continue to be dissatisfied and pendency will continue to grow as in civil courts.

 

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DRT Solutions Weekly Mail – 202nd Issue dated 21st March ’12 – Special Issue

All Weekly mails right from 1st Issue to latest, click links given at the top

(1) Illegal auctioning of assets - CMD of Financial Institution, its AGM (Law) and Recovery Officer of DRT-1 Delhi get One Month Jail by High Court Delhi for Contempt – Officers of the Financial Institutions are also fined Rs 3.5 lac and Rs. 1.5 lac to be paid from their pocket –

 

(a)                Three news items are reproduced below and are self explanatory.

(b)                This weekly mail must be spread to all borrowers, guarantors and their advocates as well as the Industrial Associations.

(c)                This will create a fear among the public servants indulging into illegal disposal of assets by the banks and DRTs.

(d)                This has proved our contentions past several years that in all cases, the Chairman of the bank must be impleaded as a necessary party.

(e)                It is reiterated that our pleadings must be thorough and perfect and we must contest perfectly on all dates.

(f)                  We must always file damages and or counter-claims in all cases for the wrongdoings committed by the banks and Fis.

 

http://www.dnaindia.com/india/report_ifci-ceo-gets-one-months-imprisonment-for-contempt-of-court_1665157

 

 

IFCI CEO gets one month’s imprisonment for contempt of court

Published: Wednesday, Mar 21, 2012, 8:00 IST 
By Kanu Sarda | Place: New Delhi | Agency: DNA

 

In an unprecedented order, the Delhi High Court awarded one month simple imprisonment to top officials of Industrial Finance Corporation of India Ltd (IFCI) after holding them guilty of contempt of court for defiance and misusing the judicial system.

Justice PK Bhasin awarded one month simple imprisonment to CEO-cum-managing director Atul Kumar Rai, Shalini Soni, assistant general manager (Law) of IFCI and RK Bansal of Debts Recovery Tribunal for contempt of court and undermining the judicial order passed by the high court.

The court, however, kept its order in abeyance for four weeks to enable the contemnors to approach the appellate court for any relief, if so desired.

On contacting IFCI, the financial body declined to comment saying the matter is sub-judice.

The court also slapped a fine of Rs5 lakh on the IFCI and said, “A public sector organisation is to bear the brunt of fine because of the lapses committed by its head and a senior officer.”

“The facts of the present case show that a very dangerous trend has started amongst the litigants and that trend is to approach the authorities subordinate to this court to get rid of some adverse orders passed by this court and get relief from the subordinate authorities which stands declined by this Court,” the court observed.

“That kind of an evil trend needs to be nipped in the bud. In case no stern action is taken at the initial stage the subordinate authorities shall also get emboldened and with impunity they shall start obliging the litigants by giving them reliefs for extraneous considerations even though the high court had rejected the same relief,” the court noted.

The court’s order came on contempt proceedings initiated by the official liquidator of Koshika Telecom that some of the assets of the company had been auctioned at the instance of IFCI by the Debts Recovery Tribunal-I, where proceedings had been initiated by the IFCI against Koshika for recovery of over Rs200cr.
Out of the sale proceeds of the auctioned assets of Koshika, about Rs12cr were permitted by the recovery officer attached to DRT to be retained by the IFCI.

On this, the High Court had in October 2009 passed an order giving a direction to IFCI to remit the amount got from the telecom company to the official liquidator.

However, IFCI did not comply with the direction and contempt was initiated.

Claiming innocence, Rai had contended before the bench that being the CEO of such a huge public sector financial institution he could not be expected to oversee each and every matter.
“Courts are not expected to get swayed away like that just because the contemnor happens to be a person holding a high position like that of a Managing Director of IFCI. In my view, he has missed the bus and it is now too late in the day for him to be praying for exoneration and that too for himself only and leaving his colleagues to sail alone in the sea which has now turned rough. Being the captain of the ship he should not have even made such an attempt to jump out of the ship alone and reach the shore in a single seater boat meant only for him,” the court said.

The bench directed IFCI to deduct a sum of Rs3.5 lakh from the salary of Rai and Rs1.5 lakh from that of Soni, so that it would not have to bear the brunt of the fine, but after it has paid the same.

 

 

 

 

http://ibnlive.in.com/generalnewsfeed/news/no-leniency-for-contempt-one-month-jail-term-for-ifci-ceo-hc/977530.html

No leniency for contempt, one month jail term for IFCI CEO: HC

PTI | 05:03 PM,Mar 20,2012

New Delhi, Mar 20 (PTI) Making it clear that no leniency would be shown for contempt, the Delhi High Court has fined the Industrial Finance Corporation of India Ltd (IFCI) Rs five lakh and sentenced its CEO and two other officials to a month in jail for not abiding by its orders. A bench of justice P K Bhasin said the impression needed to be "washed away" from the public mind that court would melt down with apology and one could get away easily even after not complying with the court's orders. "The litigants have started gathering the impression that the moment apology is tendered, even while maintaining that no contempt was committed, the court would melt down and pardon them. "That kind of an impression from the minds of the litigating public needs to be washed off. This court is, therefore, not inclined to show any leniency to any of the four contemnors," the bench said. Justice Bhasin made this observation while imposing the fine on IFCI and sentencing its CEO-cum-Managing Director Atul Kumar Rai and Assistant General Manager (Law) Shalini Soni and Recovery Officer of the Debt Recovery Tribunal (DRT) R K Bansal to a month in jail each, after holding them guilty of having committed contempt of court. The bench passed the order after it came to know that IFCI and its two senior officials had violated the court's directions to remit the sale proceeds of Koshika Telecom Ltd to the telecom firm's official liquidator. The bench, however, has kept its order "in abeyance" for four weeks, giving the time to the four contemnors to go in an appeal against its order. "The execution of this order, however, shall remain in abeyance for a period of four weeks to enable the contemnors to approach the appellate court for any appropriate relief, if (they) so desire," it said. (More)

 

http://www.hindustantimes.com/News-Feed/BusinessBankingInsurance/Contempt-HC-orders-jail-for-IFCI-chief/Article1-828402.aspx

 

Contempt: HC orders jail for IFCI chief

HT Correspondent, Hindustan Times
New Delhi, March 20, 2012

 

The Delhi High Court has sentenced Atul Kumar Rai, the Chief Executive Officer and Managing Director of IFCI (formerly Industrial Finance Corporation of India), for a month in jail . The court awarded the sentence after it held Rai guilty for contempt of court and defiance of its orders.

The court has also imposed a fine of Rs 5 lakh on IFCI and sentenced its law officer to a month’s imprisonment along with Rai.

“Considering all the facts and circumstances…..this is a fit case where they must be sent to jail,” Justice PK Bhasin said in his order dated March 19, 2012.

Rai did not respond to calls, messages and e-mail sent by HT.

In his order, Justice Bhasin clearly stated that no leniency would be shown towards contempt.

“The litigants have started gathering the impression that the moment apology is tendered…the court would melt down and pardon them. That kind of an impression from the minds of the litigating public needs to be washed off,” said Justice Bhasin in his order. 

The case and subsequent court orders relate to the winding up of telecommunications firm Koshika Telecom to which IFCI was a creditor. Before the high court’s order to wind up Koshika a DRT (debt recovery tribunal) had already auctioned some of its (Koshika’s) assets and deposited the sales proceeds of R12 crore with IFCI Ltd.

 

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DRT Solutions Weekly Mail – 201st Issue dated 16th March ’12

All Weekly mails right from 1st Issue to latest, click links given at the top
 

(1) Our contention to include ‘Loss and Damages’ (i.e. Counter-claim) in the SA gets support of Court of Law

Past several years, we have been including ‘Loss and Damages’ in the SA filed by the Borrowers in the DRTs under the Securitisation Act. We held this view on the basis of the 2004 verdict of the Supreme Court of India in the matter of Mardia Chemicals wherein it was held that the application u/s 17 of the Act is  in lieu of a suit.  

Mr. Bharat Gandhi, Advocate, Mumbai recently sent us a copy of DRAT New  Delhi Judgemant reported as 2012(1) Bankers’ Journal 72 in the matter of Vijaya Bank vs B.I. Gupta wherein it is held that counter-claim can be filed in SA u/s 17 of the Securitisation Act. This judgment fully supports our above mentioned contention.

(2) Readers appreciate our 200th Weekly Mail

We have received many e-mails appreciating the last special issue of weekly mail i.e. 200th Issue. Some of the said e-mails are reproduced below:-

“From: MANOJ HARIT <mharit@in.com>
Date: Fri, Mar 9, 2012 at 12:48 AM
Subject: Re: DRT Solutions Weekly Mail - 200th Issue dated 9th March '12
To: ramkishandrt@gmail.com

Respected Ram Kishanji,

I'm one of the many fortunate persons to have got in touch with you.

I'm inspired. I'm guided. I'm made strong. I'm ready to take on the world & ready to make a new beginning.

It's happened with your guidance & support. I do not fear anything that the Bank Litigation throws at me. I know that the solution and help is just one phone call away.

I take this opportunity to express my deep sense of gratitude towards all that u have done for me.

Thanx,

Regards,

Keep helping people like me.

MANOJ HARIT

MALEGAON

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

 

 

From: V.S. Narayanan <ssiel@rediffmail.com>
Date: Thu, Mar 8, 2012 at 5:33 PM
Subject: Re: DRT Solutions Weekly Mail - 200th Issue dated 9th March '12
To: ramkishandrt@gmail.com


Dear Mr.Ramakrishnan

Congrats & keep up your yeomen work to the society.

All the very best.

CA.CS.Narayanan.V.S
Director & Secretary
S & S Industries And Enterprises Limited,
Chennai.

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

 

From: subodhkumar <daxkumar_123@rediffmail.com>
Date: Fri, Mar 9, 2012 at 1:38 PM
Subject: 
To: Ram Kishan <ramkishandrt@gmail.com>

 

hello

happy holi the festival of colours bring in you and your family and all friends all colour of life

congratulation on 200th weekly mail on drt matters which are of enormous help to the bank litigants who have got no other avenues as even the very lage no. of learned advocates are not aware about the problems of the people facing banking issues yours weekly mails do help the people on such issues and are severly moral boosters too,

please carry on and also request you to also enlarge the group of legal forum network to other places so as to reach larger public .

thanks  
subodhkumar

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Attorneys at Law of Torts, Injury and IPR Claims

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(2) We have created a separate web site www.usindolegal.com which deals exclusively with our US joint venture enterprise for activities like BPO, legal BPO, DRT etc. This site has started appearing in the search results of Google, Mamma, Alexa and Yahoo.

Application of Law of Torts in claiming Damages from Municipal Corporations for demolition of structures, closure of shops etc:- In many parts of the country, the Municipal Corporations are demolishing structures like shops and houses which existed for number of years. The shops existing for number of years are proposed to be shut down. The affected persons should claim Damages under the Law of Torts, which would be substantial. It is learnt that in Delhi itself about 5 lac shops are to be closed down and about 25 lac persons would be out of jobs. All these persons should file damage suits in the civil court. Since the damages would be substantial, the suits may be filed as Indigent Persons. Since the damages would attract interest, the usual delay by the civil courts will not affect the final outcome. The affected shop owners may discuss the details with us on phone.

Our Articles for Borrowers and Guarantors:- Our articles on DRT matters have been published in the Financial Express. The All India Manufacturers Organisation in its famous web site www.aimoindia.org has reproduced copies of our four articles. These original articles can be searched in the archive of the Financial Express in its web site www.financialexpress.com Two of these articles have been reproduced in other pages of this web site. 

Useful link www.WorldVideoBusiness.com :- WorldVideoBusiness-WVB® is a business to business e-marketplace source of international trade leads, and tender opportunities from companies and government organizations around the globe.

About Us in Brief :-  (1) We specialize in DRT (Debt Recovery Tribunal) and NCLT (National Company Law Tribunal) matters. As a whole you may approach us for all DRT Problems and Solutions as well as matters connected with ARCIL i.e. Asset Reconstruction Company (India) Limited,  We have a Joint Venture with an America based law firm for various activities like BPO, legal BPO and DRT. The details of the said American firm and the joint venture may be seen at the page - Our US Joint Venture with Anand Ahuja Associates or in www.usindolegal.com (2) For your all problems including those in DRT, please phone us or send e-mail. Please give your contact details along with your problems in brief. As a whole you may approach us for all DRT Problems and Solutions.  (2) With our Legal Opinion, you need not worry about the Securitisation Act or other DRT matters or NCLT. Please visit the page Products & Services and Frequently Asked Questions (3) On account of our expertise in the Law of Torts and Banking and experience past 15 years, we can help you to submit suitable defence with winning strategy in DRT cases, Securitisation Act, Guarantors' defence etc.  (4) We need only copies of all available documents  to render our expert 'Legal Opinion' which will be quite useful and valuable to you particularly in DRT i.e. Debt recovery Tribunal. (5) We have also handled assignments for preparation of damage claims against Electricity Boards, Insurance Companies, Municipal Corporations etc. all on the basis of the Law of Torts.  (6) The DRT counterclaims is to be prepared well in advance so that it could be raised at proper time in DRT or other forum to safeguard the securities and assets. (7) Several DRT counterclaims drafted by us are being handled by different advocates at DRT Mumbai, DRT Delhi, DRT Jabalpur etc. Thus DRT advocates are available in these cities. Cases in other Debt Recovery Tribunals are under process. (8) This site is updated monthly mostly on every first Monday of the month or for urgent release on any day with latest material. (9) For further details about us, please visit the page About Us-DRT Solutions As a whole you may approach us for all DRT Problems and Solutions. We hail from the place to which Maharishi Mahesh Yogi and Acharya Rajnish belong and hence this site is dedicated to them.

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We regularly practice TM and SCI of Maharishi Mahesh Yogi. We also regularly practice Hath Yoga including Pranayam based on Baba Ramdev Ji  Maharaj. We daily watch his global TV program on Astha Channel from 05:30 AM to 8AM and 8PM to 9PM Indian Standards Time. On Sanskar channel, we daily view the discourse of Pradumn Maharaj from 4 AM to 5:30 AM. Many chronic diseases such as Cancer, Parkinsons' disease, Polio, Asthma, Hypertension, diabetes etc. have been cured by the said method of Pranayam which can be learnt even by watching his program on TV. Since 30th March '06, we have started practicing Sun Gazing as prescribed by HRM.

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