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 - 211th to 220th

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

 

 

 

DRT Solutions Weekly Mail – 220th Issue dated 27th July  ’12

 

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

 

(1) SC Notice to Centre on bringing Tribunals under One Ministry

 

Following is the extract from our web page vide link

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

 

A news item in the internet edition of Times of India dtd 25.07.12 is reproduced below:-

SC notice to Centre on bringing tribunals under one ministry

http://articles.timesofindia.indiatimes.com/2012-07-25/india/32847398_1_tribunals-judicial-members-hrd-ministry

Dhananjay Mahapatra, TNN Jul 25, 2012, 02.44AM IST

NEW DELHI: Litany of tribunals set up under diverse ministries to deal with a slew of issues — ranging from environment to income tax — has resulted in lack of uniformity in their functioning, so much so that members appointed to decide cases were not qualified to practice in them

A Supreme Court bench of Justices A K Patnaik and Madan Lokur issued notice to the Centre — on the basis of a PIL filed by the Madras Bar Association — that gave a direction to the Union government to bring all tribunals under the administrative aegis of the ministry of law and justice.

The PIL filed through advocate Nikhil Nayyar said Competition Commission of India (CCI) and its Appellate tribunal along with Company Law Board came under the ministry of corporate affairs, while Copyright Board functioned under the HRD ministry.

"Intellectual Property Appellate Board was under the ministry of industry and commerce, while Customs, Excise and Service Appellate Tribunal, Debt Recovery Tribunal and its Appellate Tribunal, and Securities Appellate Tribunal were set up under the aegis of the ministry of finance," it said.

Since the tribunals were not set up under one administrative control, there had been great diversity in the functioning of these grievance redressal forums, it said.

"First, the qualification of members (of these tribunals and boards) is not uniform. In many tribunals, 'administrative' or 'technical' members do not even require a law degree. This has resulted in a curious situation where 95% of the 'technical' members will not be allowed to practice before the tribunal, but will be able to sit on its bench," senior advocate Arvind Datar said arguing for the petitioner.

The retirement age of the members were also not uniform, it said and complained that the administrative ministries have adopted a step-motherly treatment to these tribunals as far as providing infrastructure and staff was concerned.

Besides, the government had never carried out judicial impact assessment while enacting a new statute resulting in defeating the purpose of creating tribunals, which was to reduce pendency.

The apex court had recently taken exception to the manner in which government had treated the National Green Tribunal (NGT), which was woefully short of office space, staff and residential accommodations. Peeved over lack of basic amenities, two judicial members of NGT resigned from their posts.

The PIL said that government had paid scant regard to two judgements of the apex court - the 2010 judgement in R Gandhi case and 1997 judgement in L Chandra Kumar case - that mandated all tribunals be brought under the aegis of the ministry of law and justice.

(2) Bank (Secured Creditor) asking other Bank to freeze Account of a running Industrial Unit is Illegal – Remedy – Injunction Suit 

 

Following is the extract from our web page vide link

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

 

One of our clients informed the following:-

(a)    The secured creditor Bank ‘A’ had initiated recovery action under SARFAESI Act. Our client continued running his industrial unit  through account in another Bank ‘B’. The Bank ‘A’ asked Bank ‘B; to freeze the account.   

(b)    We asked our client to file an Injunction Suit under the Specific Relief Act, 1963.

(c)    None has right, power, authority and jurisdiction to create hurdle in a running unit, stopping employment to workers etc which are violations of fundamental rights under the Constitution of India. Court is duty bound to award immediate injunction (i.e. stay)

 

 

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DRT Solutions Weekly Mail – 219th Issue dated 20th July  ’12

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

(1) Use of Audio and Video Recordings and other Technological Tools   

Following is the extract from our web page vide link

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

The use of technology brings efficiency better recordings of the facts as may be seen from the following instances:-

(a)    One of our clients recorded all the telephone calls which he had with the bank officials. There are nearly 300 such audio recordings. The same will be transcribed and used in the pleadings. The CD containing such recordings will be filed as document.

(b)    Some times the bank officials demand undue favours such as transfer of money to their relatives. Details of such transactions as well as the documents must be kept for future use.

(c)    During appraisal, there are several visits of the bank officials. Audio and video records of such visits will be valuable document to prove the viability of the project.

(d)    Telephone talks and visits of the recovery agents must be recorded. Most often these persons misbehave or use unparliamentary language. One must claim damages from the bank for such conduct.

(e)    In most of the cases, the banks get blank documents signed. Record of discussions and photo of such documents will be useful in the pleadings as documents can not be allowed in the court of law.

(f)      Audio record of court proceedings and its transcript will be very much useful in preparing the written arguments. 

(2) Use of Video Conferencing for our Clients   

Following is the extract from our web page vide link

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

Sometimes some of our clients visit us along with their counsels, fellow directors and consultants. Video conferencing will be quite useful in reducing the time and expenses as all such persons need not travel from their place to Indore. Reliance web world has very good arrangements for such video conferences. The record and DVDs will be quite useful for review and revisions.

(3) DRTs in Mumbai are staying the Adjudication in respect of Co-operative Banks   

Following is the extract from our web page vide link

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

Mr. Bharat Gandhi, DRT Advocate, Mumbai has informed that the DRTs in Mumbai are issuing stay orders in respect of recovery cases filed by the Co-operative cases. Earlier the borrowers had to approach the Supreme Court which was issuing such stays and now he need not approach the Supreme Court.

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DRT Solutions Weekly Mail – 218th Issue dated 13th July  ’12

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

(1) Beware of Such Advocates who are telling that they have Intimate Relations with the Judges   

Following is the extract from our web page vide link

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

From two of our clients from two DRTs in the country, we have come to know that certain advocates have been propagating that they have intimate and personal relations with the judges. One should be careful of such advocates and it will be better to avoid them due to the following reasons:-

(a)    It may be only a rumour and the said advocate is taking undue advantage of such rumour.

(b)    Such advocates will not pay any real attention to the legal aspects and hence the case will have built-in deficiencies which may be difficult to overcome in future.

(c)    If the advocates and judges are in league, the judgement will be definitely wrong.

(d)    The litigation is long drawn process and there are several stages of reviews and appeals. The wrong judgement due to relations will get reversed in the higher courts.

(e)    Hence in view of above, it will be better to concentrate only on true fight based on correct facts. It may take time but there will be sure success at the end of fight.

(2) Receipt of Notice u/s 13(4) is Sufficient to Initiate Action u/s 17 of the Securitisation Act   

Following is the extract from our web page vide link

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

After in-depth study and based on the judgments delivered by the Supreme Court and the High Court, we have come to the conclusion that one should initiate action u/s 17 of the Securitisation Act just after receipt of the notice u/s 13(4).

(3) If Banks depute Recovery Agents, Borrowers should make Video/Audio Record the discussions with the said Agents   

Following is the extract from our web page vide link

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

It is observed that the banks are deputing Recovery Agents for various activities. The Borrowers should make arrangements for recording telephone talks with the said Agents. In case the Agents come to spot, all discussions and dealings should be video recorded. At proper time the CDs containing the said audio and video records should be sent to the banks as documents to be used in future if necessary. It is needless to mention that simple gadgets and handicams are available for said audio/video recording. The borrowers should practice in advance to make trial recordings as well as the sample CDs so that the system does not fail when the real need arises.

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DRT Solutions Weekly Mail – 217th Issue dated 6th July  ’12

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

 

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(1) Importance and Value of Entrepreneurs – India a Barren Land for Entrepreneurs 

 

Following is the extract from our web page vide link

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

 

In the very beginning of creation of this earth when the human beings were one among other animals.  The lives of the said human beings was just like animals. Some of those human beings were however different and they came forward to improve the life and living. They questioned everything around and they took risks to create useful things. Those human beings are called ‘Entrepreneurs’. You just look around you and several things you will find those are created by the entrepreneurs. Just for an example – ‘Electric Bulb’ Thomas Alva Edison created the first electric bulb. He experimented and failed 5000 times to reach the final design of the electric bulb. When the first bulb was lighted for public viewing in an open ground, most of the population of USA visited the place where the said bulb was lighted. They were surprised to find a light which was continuously burning with the same intensity and was not affected by the wind. The said bulb became so useful to the humanity that with passage of time, most of the human beings on earth were using the said electric bulb.

 

It was the entrepreneurship of Edison that created the bulb and entire humanity was benefited for all time to come. Like this there are numerous products and several entrepreneurs who have made our life virtually a heaven on earth.

 

The society which facilitates entrepreneurs and respects its entrepreneurs becomes rich and prosperous. America is one of such societies. On the other hand the environment in India is entirely opposite. The Indian entrepreneurs have to struggle at every point of time and many of them are killed before they achieve any success. That is why at present we are 25 times poorer than America.     

 

It was not so before the British ruled our country. The kings were respecting and honouring the entrepreneurs. As a result India was one among most prosperous countries in the world. Our export was highest and numerous goods were produced. The Indian entrepreneurs invented and discovered numerous products in the fields of mathematics, astronomy, metallurgy, textiles, medicine, surgery, weapons etc. It was since the ancient time of Vaidic period. On mental and spiritual plane, the work done by the entrepreneurs of that time (they were called Rishies) is matchless till today.

 

At present, the Govt and its instrumentalities are not paying any attention to real development of entrepreneurship in the country. There is only some show off or lip service. There are many entrepreneurs who come forward to set up their projects but are killed on account of ill financing by the banks and the financial institutions.  

 

(2) Judiciary and Litigation Process in India

 

Following is the extract from our web page vide link

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

 

In USA most of the suits are decided within 9 months. There is separate ‘Bar Association of Trial Lawyers’ The work load of the judges is decided in such a mannIer so that he gets sufficient time during office hours. Each case is thoroughly prepared by the advocates and everything is put down on paper. All the arguments are audio and video recorded and the transcript is prepared on the same day. There is no compulsion on the judge to declare the judgment within a prescribed time. All out effort and emphasis is on accomplishing the best quality so that ultimate aim of justice is achieved.

 

On the other hand, in India, the suits may take 20 to 30 years and still justice may not be achieved. Instead of improving the civil courts, the attention was diverted to form tribunals but now the tribunals are taking 5 to 10 years. In most of the cases, the justice is not achieved.

 

In view of above, we have been emphasizing the importance of perfect pleadings and perfect disposal on every date. Since this is not possible for the advocates, we have been asking our clients to be fully involved on every date. Achieving perfect disposal on every date is the main requirement during the trial. The trial court or DRT is the first and the last opportunity if one aims at winning the litigation. Since it is well known that the banks and the financial institutions will fight upto Supreme Court, Hence we are very careful in choosing our clients who should have sufficient financial resources to fight and survive till end of the battle upto the Supreme Court. With such approach only leading judgments may be achieved and such judgments alone will be useful to other litigants in future.

 

It is needless to mention that functioning of the democracy depends on ‘Competent and Efficient Judiciary’ otherwise the society will be corrupt and will be ruled by  criminals as none will be afraid of breaking the law. First we need judicial reforms before any other reforms. With such mindset, we should fight our legal battle in DRTs.

 

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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 – 216th Issue dated 29th June ’12- Camp Sagar

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

 

(1) Judgments favourable to Barrowers 

 

Following is the extract from our web page vide link

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

(a)    2012 (1) DRTC 800 (Bom), Sterlite Technologies vs Union of India -  Writ Petition in Bombay High Court decided on 22.12.11  - DRT Act – Sec 21 Proviso – Appeal – Waiver of Deposit – Dispension with condition of pre-deposit sought – Elements of prima facie case and question of financial hardship required to be considered by the DRAT – DRAT did not consider application for waiver in terms of legal position – Impugned order of DRAT set aside – Application for waiver of deposit restored to file of DRAT for a decision afresh.

(b)    2012 (1) DRTC 846 (P & H), Shiv Charan Singh vs Haryana State Industrial & Infrastructure Development Corporation – Writ Petition in Punjab and Haryana High Court decided on 09.01.12 – SFC Act Sec 29 and 31(1) (aa) – Auction Sale – Jurisdiction of Corporation – Parties by agreement cannot confer jurisdiction on Corporation to proceed against the guarantor u/s 29 of the Act – Sec 29 can be exercised only against the industrial concern – Corporation has a right to proceed against guarantor u/s 31 or u/s 32-G but Sec 29 confers limited jurisdiction on Corporation to act against the industrial concern alone.

             

(2) Contesting the OAs filed by the Banks

 

Following is the extract from our web page vide link

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

 

It is observed that the banks have gone back to filing of the OAs instead of the action under Securitisation Act. The OAs need to be contested like a civil suit and it will take much longer time than the SA. Further there is express provision of the counterclaim. Hence if the case is being handled by an experienced trial lawyer having intimate knowledge of the CPC and with a strong counterclaim, it will be extremely difficult for the banks to win the OAs. In past we have dealt with numerous aspects of the counterclaim in our weekly mails. All those will be very much helpful to the borrowers and their advocates. 

 

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DRT Solutions Weekly Mail – 215th Issue dated 22nd June ’12

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

(1) Indian Banks Rating downgraded from Stable to Negative by Fitch – SBI, PNB, ICICI Bank, BoB, Canara Bank, IDBI Bank, Axis Bank, Exim Bank, HUDCO, IDFC  & IRFC are involved   

Following is the extract from our web page vide link

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

Fitch downgrades Indian banks

http://www.deccanherald.com/content/258346/fitch-downgrades-indian-banks.html

New Delhi, June 20, 2012, DHNS :

Credit rating of SBI, PNB, ICICI, BoB and others turns negative

Fitch Ratings on Wednesday revised the credit rating outlook of State Bank of India, Punjab National Bank and nine other financial entities from ‘stable’ to ‘negative’, while affirming the rating.

The list of other downgraded entities include four government banks (including an international banking subsidiary of a government bank), two private banks, two wholly owned government institutions and one infrastructure finance company.  

They include Bank of Baroda (BoB) and its international banking subsidiary in New Zealand known as BOBNZ, Canara Bank, IDBI Bank, Axis Bank, ICICI Bank, Export-Import Bank of India (Exim Bank), Housing and Urban Development Corporation (HUDCO) and Infrastructure Development Finance Company (IDFC).

The action by Fitch was consequent to the revision made earlier this week of India’s outlook to negative. 

In a statement Fitch said: “The outlook revision of the financial institutions reflects their close linkages with the sovereign by virtue of their high exposure to domestic counterparties and holdings of domestic sovereign debt.” 

Besides two wholly owned government institutions — Exim Bank and HUDCO have also been similarly downgraded. The outlook of IDFC and Indian Railway Finance Corporation outlook has also become negative.  

Fitch, however, maintained that banks continue to have reasonable customer deposit base, domestic franchises and adequate capital, while the non-banking financial entities (NBFCs) lack the funding advantage now which puts them more at risk during times of increased market volatility.

Analysts are of the view that the cut in the rating outlook may raise the cost of overseas borrowings for such institutions. The rating agency also said sovereign support for both the large banks and ‘policy-type institutions’ is expected to remain strong, with the former benefiting from their large share of system assets and deposits and the latter from their association with the government.

It may be noted, Fitch, on last Monday, lowered India’s credit rating outlook to negative, citing corruption, inadequate reforms, high inflation and slow growth. As such, India faces an “awkward combination” of slow growth and elevated inflation, Fitch had said, adding that the country “also faces structural challenges surrounding its investment climate in the form of corruption and inadequate economic reforms”.

(2) Dilemma of Indian Banks  to move from Securitisation to DRT Act due to Slump in Property Market

 Following is the extract from our web page vide link

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

On account of slump in the property market vide news below, the banks and FIs are in a fix. They have no interest to invoke the Securitisation Act. In many cases, after issue of the legal notice u/s 13(2), the secured creditors are postponing issue of possession notice u/s 13(4). They are now afraid to take possession of the secured assets as there may not be any buyer. They have no option but to file OA under the DRT Act. In that eventuality, they will have to face the counter-claims and hence the recovery cases in the DRTs will be delayed. Further on account of sharp increase in NPAs, there will more number of cases in DRTs.

Sunday, June 17, 2012

Home sales slump by more than 50% in Delhi, Mumbai areas

http://indiahousingbubble.blogspot.in/ 

While MMR reported the sharpest drop of around 58%, NCR slumped 57% from the year earlier. Bangalore witnessed a drop of 18% in sales, the report added.

Sales in NCR dropped to 15,104 units from 35,420 units and it fell to 11,473 units from 27,676 units in MMR.

The two regions saw a residential supply of 107,731 and 89,461, respectively, in the first quarter.

Samir Jasuja, founder and chief executive officer, PropEquity Analytics, said, “In the coming quarters, there would be strong pressure on many micro markets and we expect inventory overhang to increase and absorption could continue to slow down. Mumbai in MMR and Gurgaon in NCR have seen the sharpest falls in absorption.”

“If this trend continues, there could be a price correction of 5-20%, especially in the micro markets of NCR, MMR and Hyderabad,” he added.

Bangalore hasn’t been as badly hit because of demand from genuine homebuyers and end-users, apart from the fewer unsold properties.

Sales in the southern city fell 18% to 7,704 units from 9,410 units.

The other two markets are largely investor driven.
“Generally, investor-driven markets would see downward risks than end-user driven markets,” added Jasuja. 

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DRT Solutions Weekly Mail – 214th Issue dated 15th June ’12

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

 

(1) Before Declaring NPAs, Bankers have Numerous Duties to Perform including Rehabilitation not only Once but Multiple Times

 

Following is the extract from our web page vide link

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

 

One of our clients Mr. Mukund Murthy from Mumbai  has sent the following useful information:-

“Before declaring NPAs, Bankers have numerous duties to perform including rehabilitation not only once but multiple times – Important Information for Borrowers and their advocates

Our Associate and Banking Expert has drawn attention to the following important RBI Guidelines and circulars which will be highly useful to Borrowers and their Advocates. These need to be studied and important aspects included in the ‘Representation and Objections’ to notice u/s 13 of the Securitisation Act as well as in the application u/s 17 of the said Act:- 

(a) Even before the prudential norms to declare accounts as NPA was brought by RBI to be implemented from 31st March 2004, RBI issued a circular DBS.CO.OSMOS/B.C./ 4/ 33.04.006 / 2002-2003 dated September 12, 2002 on “Guidelines on preventing slippage of NPA accounts” based on a study on preventing slippage of NPA accounts, addressed to The chairman/ Managing Director/Chief Executive Officer – All Commercial Banks (Excluding RRBs) which means it is applicable to all commercial banks irrespective of whether they are Indian banks or foreign banks or multi state co-operative banks. Since the circular cited now is issued previous to the circular issued for declaration of NPA, the guidelines as prescribed in the aforesaid circular has to be implemented first before declaring an account as NPA. 

(b) RBI Master circular DBOD No.BP.BC.10/21.04.048/ 2004-05 dated July 17, 2004 where in prudential norms are given. As per the said circular of RBI, mere irregularity in the account cannot make it a Non Performing Asset. It depends upon the nature of irregularity.

 (c) RBI circular RPCD.PLNFS.BC.No.31/06.02.31/2005-2006 dated August 19, 2005 highlights the “Policy Package for Stepping up Credit to Small and Medium Enterprises. - Further RBI circular RPCD.SME & NFS.BC.No.9/06.02.31/ 2010-11 dated July 1, 2010 under lending to Micro, Small & Medium Enterprises (MSME) Sector among other things states about  Debt Restructuring Mechanism for Micro Small and Medium Enterprises. 

(d) That as per Government of India policy and RBI guidelines and directives, it is apparent that an account can be classified as NPA only when all the means of making the account performing, which includes repeated rehabilitation fail to produce the desired result, and then and then only, the legal proceedings under Securitization Act 2002 can be invoked and proceedings initiated by issuing the notice u/s 13(2) of the said Act.”

Our Comments

(a) Almost in all the cases, the NPA Declaration by the banks is wrong and illegal. Assuming that proper pleadings have been made, this particular aspects should be tried as a Preliminary Issue.

(b) Further it is assumed that the pleadings contain the loss and damages creating situation of ‘No Debt Due’

(c) Other important hurdles are (1) getting stay of DRT against physical possession by the banks in the initial stages and (2) 25% deposit with the appeal to the DRAT. These aspects have already dealt with in detail in our previous mails.

(2) Public Sector Banks – Thoughtless Directives from Delhi

 

Following is the extract from our web page vide link

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

 

One of our clients Mr. Sanjay Jain from Nagpur  has sent the following useful information:-

 

“Public Sector Banks : Brazen, Quixotic and Thoughtless directives from Delhi

http://www.moneylife.in/article/public-sector-banks---1-with-government-keeping-the-control-who-will-put-in-the-capital/26249.html

June 12, 2012 07:45 AM  

A Banker

The Department of Financial Services has been overactive in issuing directives. Worse, DFS is resorting to brazen ways of dictating to PSBs to sponsor their proposals to the board and get them approved

Notwithstanding the fact of substantial private shareholding in PSBs and the managerial autonomy granted to them in 2005, the central government’s power to give direction to banks in regard to matters of public interest, after consultation with the RBI derived from the Banking Companies (Acquisition and Transfer of undertaking) Act 1970—in short Bank Nationalization Act 1970—remains intact. The nature of consultation with the RBI is not clear nor is it clear whether the government could overrule RBI’s advice in matters where the RBI is professionally competent. Be that as it may, in the recent past, the ministry of finance, Department of Financial Services (DFS) has issued a number of directions, advisories and directives to PSBs, some of which are in contravention of the 2005 Managerial Autonomy granted to PSBs, and they are also not in keeping with the aim of protecting minority shareholders’ rights as mentioned in the 2005 document. There is thus the potential risk that private shareholders could call into question some of these directions/ advisories a la TCI against Coal India. Besides, almost invariably the DFS wants banks to place its letters before the board of directors within a fortnight, underlying presumption being that the proposals would be approved without demur by the board where majority of the directors are nominees of the government.

This is bad enough but more worrisome is that some of directives/advisories are thoughtless, if not downright quixotic, as would be illustrated with some glaring examples.

Constitution of Credit Approval Committee (CAC)

 The ministry of finance, Department of Financial Services (DFS) issued a Gazette Notification on 05 December 2011 under Section 9 of the Bank Nationalization Act, 1970, in consultation with the RBI, to constitute in each of the nationalized bank a credit approval committee which is authorised to approve credit proposals of Rs400 crore in the case of Category A banks with business of Rs3 lakh crore or more and up to Rs250 crore in the case of other banks. The notification clearly stated that it is a committee of the board and that it shall have a chairman & managing director, executive directors who are whole-time directors as also designated chief general managers (CGMs)/general managers (GMs) as members. This notification came as a surprise to many banks as they had no prior indication nor did the government or the RBI consult them though it was not obligatory to do so.

The banks sought clarifications from DFS on two major issues: [i] as the CGMs /GMs are not directors on the board, they cannot be members of a board committee. More substantively, as they are the officials who recommend credit proposals, they cannot be on CAC as it would amount to proposers and approvers are the same at least in part. [ii] Whether the credit approval limit of Rs400/ 250 crore refers to single borrower or single proposal or for a group.

The DFS did not specifically clarify the position on the first issue and apparently left it to the banks to keep the CGMs/GMs as proposers and not members of CAC. On the second issue, DFS clarified—it is worth quoting, “These powers are applicable to any single proposal placed before the CAC, irrespective of group or individual exposure as such” (emphasis added). In a single swipe, DFS thus abolished the concept of exposure limit which is a prudential norm followed by banks world over with reference to credit risk they can undertake vis-a- vis their net worth, and blew away to the chagrin of RBI prudential norms prescribed by it. Neither DFS nor the RBI could be more emphatically aggressive in discarding a well established and prudent concept!  Fortunately, banks kept their counsel and stuck to the credit approval limit, as per borrower. Incidentally the clarifications do not appear to have been gazetted though they are of substantial importance.

[B] Setting up of credit approval committees at the corporate, regional and zonal levels

The DFS sent out a draft proposal on the above subject on 17 February 2012 asking banks to comment on the proposal within a week. The proposal involved setting up of CACs at various administrative/controlling offices to deal with credit proposals expeditiously for which the CACs will be given specified powers by the boards of respective banks. In this, and the subsequent letter of 27 February 2012 apparently based on banks’ comments, the powers presently exercised by officers in the hierarchy as per the scheme of delegation of powers in each bank was agreed to be retained, and the powers of the CACs at corporate and other controlling offices were to be prescribed for larger amounts. However, in reversal of the foregoing, the DFS advised the banks on 03 April 2012 as follows: “With the setting up of these committees, the powers vested in officers above the branch level should cease to exist” (emphasis added).

Under the existing scheme of delegation of powers, the discretionary powers of officials posted at the branches are determined by the category of branch as per business volume and the grade of officers. Thus, for example, a rural branch manger may be vested with powers of approval up to say, Rs 2 lakh while a metro branch manager may have powers up to Rs100 lakh. Under the DFS dispensation, the CAC at say regional office could get a proposal for more than Rs2 lakh from a rural branch and for more than Rs100 lakh from a metro branch. This is totally incongruous with any rational scheme of delegation! The last word on the subject is not yet out.”

Our Comments

 

(a) The Ministry of Finance continues to proceed with further illegal acts and directives. Ultimately it will create legal problems resulting into further delays in DRTs.

(b) It is needless to mention that the only and the best recovery is out of surplus generation by running of the industry and or business. The banks are duty bound to help the ailing units by revival, rehabilitation and or restructuring so that surplus generation is achieved. Till that time, no recovery action should be initiated.

(c) Despite above, if any recovery action is resorted to by the banks, it will result in huge delay apart from huge loss and damages which will create ‘No debt Due’ situation.

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DRT Solutions Weekly Mail – 213th Issue dated 8th June ’12

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

 

(1) Open Violation of Law by Minister of Finance, Ministry of Finance and POs of DRTs and DRATs

Following is the extract from our web page vide link

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

 

Dr Suresh, Founder of the ‘Borrowers Rights Forum’ has sent the following news item. Our comments are as under:-

(a)    The Supreme Court has ordered that the Tribunals should be transferred from the control of the parent Ministries to the Ministry of Law.

(b)    As per Art 141 of the Constitution of India, the law declared by the Supreme Court shall be binding on all courts within the territory of India.

(c)    As per the Supreme Court judgment contained in AIR 1971 SC 179, Makhan Lal vs State of Jammu, the Supreme Court decisions are binding on all States and their Officers and all persons whether they are parties thereto or not and to all pending proceedings.

(d)    Despite above as may be seen from the following news release, the Ministry of Finance as well as the Minister of Finance, the POs of DRTs and the Chairpersons of the DRTATs continue to openly violate the law declared by the Supreme Court.

(e)    A writ was filed by the said ‘Borrowers Rights Forum’ in Andhra Pradesh High Court. The Ministry of Finance has not yet replied to the Hon’ble High Court despite reminders. Even they are not bothered about the contempt proceedings.

(f)      It is suggested that all the litigant borrowers and guarantors should unite under the said forum and send their e-mail supports to Dr Suresh drcsuresh@gmail.com proposing countrywide actions. 

“15”

 

pib.nic.in

PRESS INFORMATION BUREAU

GOVERNMENT OF INDIA

***** 

UNION FINANCE MINISTER ASKS THE CHAIRPERSONS OF DEBT RECOVERY

APPELLATE TRIBUNALS (DRATs) AND PRESIDING OFFICERS OF DEBT

RECOVERY TRIBUNALS (DRTs ) TO SUGGEST WAYS AND MEANS TO

EXPEDITE THE UNLOCKING OF RESOURCES OF VARIOUS BANKS

 

New Delhi: Jyaistha 16, 1934

 June 06, 2012

 

            The Union Finance Minister Shri Pranab Mukherjee asked the Chairpersons of Debt Recovery Appellate Tribunals (DRATs) and Presiding Officers of Debt Recovery Tribunals (DRTs) to suggest ways and means to expedite the unlocking of resources of various banks locked in the form of Non Performing Assets (NPAs) etc. The Finance Minister Shri Mukherjee said that there can be no lending unless there is recovery.  But today, the Banks are facing the problem of increasing NPAs which needs to be addressed on priority, the Minister added.  He said that the Government has advised the Bankers to closely monitor their NPAs. He further said that the role of DRTs is all the more important in helping out the banks to deal with the mounting NPAs/loss assets as they are the part of mechanism for recovery of loss assets. The Union Finance Minister Shri Mukherjee was addressing the First Conference of the Chairpersons of DRATs and Presiding Officers of DRTs here today.

 

            The Finance Minister Shri Mukherjee asked the Chairpersons and Presiding Officers to deliberate and discuss in detail during their one-day Conference and give their concrete suggestions which would go a long way in improving the functioning of DRATs and DRTs. Along with the Chairpersons of DRATs and Presiding Officers of DRTs, the Conference was also attended by Shri D.K.Mittal, Secretary, Department of Financial Services, Ministry of Finance and other senior officers of his Department.

 

            The Union Finance Minister Shri Mukherjee said that this Conference is being held at a time when the Indian economy is facing various challenges.  He suggested that he has full faith in the capacity and abilities of our people as well as in the resilience of the Indian economy to overcome successfully such challenges.  The Finance Minister Shri Mukherjee said though it is a matter of great concern that there is a slow down in the GDP growth rate beside having higher current account and fiscal deficit yet there is no need to press the panic button.  He said that he is confident that through patience, deligence, competence and capacity of our businessmen, small and medium entrepreneurs, workers and economic experts, we would be able to overcome these challenges successfully as we have done in the past many times. Highlighting the positive aspects of Indian economy, the Finance Minister said that basic fundamentals of our economy are strong, rate of saving and investment from domestic sectors are also high beside reversal in the tight monetary policy among others.  Therefore, the Finance Minister said that he is fully confident that the objective of taking the economy back to the path of higher growth, maintaining moderate rate of inflation, narrowing down the gap of current account deficit and restricting the fiscal deficit to 2 per cent of GDP are very much achievable. He said that during the international financial crisis, the role of banks is very important. He said that due to well placed regulatory mechanism and its effective and efficient functioning in the country, our banks were not adversely affected during the international crisis of 2008-09. Rather they helped in minimising the impact of international crisis on our economy, the Minister added.

 

The Union Finance Minister said the role of DRTs is all the more important in helping out the Banks to deal with the mounting NPAs/loss assets as they are the part of mechanism for recovery of loss assets.                

                        

              The Union Finance Minister Shri Pranab Mukherjee said that DRTs can ensure the effective and speedy recovery of public money.  Keeping in view this important aspect that the Recovery of Dues due to the Banks and Financial Institutions Act, 1993 (RDDBFI Act) prescribed that it should be the endeavour of the Tribunals to decide the case in 180 days, the Minister said.  He said that DRTs have not been able to adhere to this time line.  The Finance Minister Shri Pranab Mukherjee said that it is informed that the pendency of cases in the Tribunals is about 67,000 cases involving an amount of Rs.136 lakh Crore as on 31.03.2012. He said that this is a matter of great concern. 

 

The Finance Minister Shri Mukherjee said that pendency of cases has increased and there is need to increase the pace of disposal by DRTs.  He said that there is delay at times as the Banks representatives do not submit complete documents or seek adjournments. He said that there is need for proactive action/approach to be taken by the Banks.  He further said that some of the DRTs may be over burdened due to increased number of filing of cases or their large jurisdictions. Therefore, the Finance Minister Shri Mukherjee said that there is a need to look into the territorial jurisdiction of the existing DRTs. He said that there is also need to rationalise and if considered absolutely necessary, the setting-up of additional Tribunals can also be considered.

 

The Finance Minister Shri Pranab Mukherjee said that the steps are being taken to remove the bottlenecks and thereby improve the performance of the DRTs.  He said that we are also taking legislative measures considered necessary.  In this regard, he mentioned about the Bill which has been introduced in the Parliament for amendment of SARFAESI Act and RDDBFI Act.  

 

The Finance Minister Shri Mukhjerjee asked the participating officials to give a serious thought to the aspect of judicial accountability and suggest ways and means to achieve higher accountability, appropriate control and effective supervisory mechanism. He further asked all the participants to give a serious thought to the challenges before them and suggest measures to deal with this situation.  The Finance Minister assured full support of the Government to the practicable recommendations of the Conference.     

 

***

 

DSM/Hb

 

(2) The Bananas with Dark Patches on Yellow Skin – Anti Deadly Cancer

 

Following is the extract from our web page vide link

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

 

Mr Firoz Poonawalla has sent the following useful piece:-

 

The fully ripe banana produces a substance called TNF which has the ability to combat abnormal cells. So don't be surprised very soon the shopwill go out of stock for bananas. As the banana ripens, it develops dark spots or patches on the skin. The more dark patches it has, the higher will be its' immunity enhancement quality . Hence the Japanese love bananas for a good reason. According to a Japanese scientific research, banana contains TNF which has anti-cancer properties. 

The degree of anti-cancer effect corresponds to the degree of ripeness of the fruit, i.e., the riper the banana, the better the anti-cancer quality. 

In an animal experiment carried out by a professor in Tokyo U comparing the various health benefits of different fruits, using banana, grape, apple, water melon, pineapple, pear and persimmon, it was found that banana gave the best results. It increased the number of white blood cells, enhanced the immunity of the body and produced anti-cancer substance TNF. The recommendation is to eat 1 to 2 banana a day to increase your body immunity to diseases like cold, flu and others.  

According to the Japanese professor, yellow skin bananas with dark spots on it are 8 times more effective in enhancing the property of white blood cells than the green skin version.

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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 – 212th Issue dated 1st June ’12

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

 

(1) Judgments Favourable to Borrowers & Guarantors

 

Following is the extract from our web page vide link

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

 

(a)    Securitisation Act – Sec 17 – Limitation Act, Sec 5 shall apply – Allahabad High Court - Citation- 2012 (2) Bankers’ Journal 78, State Bank of Patiala vs Chairperson DRAT Allahabad

(b)    Securitisation Act – Sec 13(4) – Appeal u/s 17 maintainable if action is against Act or Rules framed thereunder e.g. notice for possession, preparation of Panchnama, notice to sell property, to take assistance of DM/CMM/CJM for taking possession etc. – DRT cannot reject appeal on the ground that it was premature or not maintainable – Gujrat High Court - Citation – 2012(2) Bankers’ Journal 93, Analkumar Rajkishore Mishra vs Dena Bank

 

(2) Amendment of the SA

 

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

 

“We are getting several cases where the SA has been prepared but it lacked important portions like many of the wrong doings committed by the lenders and the loss and damages on account of the said wrong doings. We advised our such clients that the SA should be amended at the earliest possible opportunity. If it is not done, the borrower shall be deprived of an important right and his case will become weak and later on curing such weakness will not be possible. There are few judgments of the Supreme Court of India which lay down that “ The Courts should be extremely liberal in granting prayer of amendment of pleadings unless serious injustice or irreparable loss is caused to the other side.”

 

 (3) Exhaustive Application for Stay before DRT

 

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

 

“Just after receipt of notice u/s 13(4) it will be better to submit SA before DRT with an exhaustive application for stay as early as possible. The SA may have even provision for subsequent amendment. Such action will prevent the lender to approach the Magistrate or direct auction of the secured assets.”

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DRT Solutions Weekly Mail – 211th Issue dated 25th May ’12

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

(1) ‘No Debt Due’ – Stages for Highlighting

 

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

 

“The banks are out to misuse the coercive provisions of the Securitisation Act. In order to secure favourable response from the Magistrate u/s 14 or from the PO DRTs u/s 17, proper pleadings are to be made to emphasize the situation of ‘No Debt Due’ at the following stages:-

(a)    In the Representation and objections against the notice u/s 13(2), the loss and damages should be pleaded stating that since the said loss and damages are much more than the alleged dues of the bank and hence there is ‘No Debt Due’. Copy be also sent to the Chairman and other higher officials of the bank.

(b)    In the caveat filed before the Magistrate copy of the said Representation and Objections be enclosed emphasizing the said ‘No Debt Due’ situation. Copy of the said caveat be also sent to the Chairman and other higher officials of the bank.

(c)    In the arguments before the Magistrate the said point of ‘No Debt Due’ be emphasized. Also written arguments be submitted.

(d)    Despite above if the Magistrate order is not favourable, review be filed before the Magistrate.

(e)    Just after review, appeal be filed before the DRT.

(f)      Since every stage, sufficient records have been created followed by Review, Appeal and Written Arguments, the Magistrate and PO DRTs will have no option but to grant stay for taking the physical possession.

(g)    Despite above, if desired results are not achieved, one will have sufficient records and documents to file Appeal before DRAT and then subsequently before the High Court and Supreme Court.

 (2) e-DRT Project of Govt of India

 

Following is the extract from our web page vide link

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

 

The Govt of India has launched e-DRT project for modernization of the DRTs. EoI (Expression of Interest) document has been published on the web site of DFS (Deptt of Financial Services) of Ministry of Finance and has been issued to the IT companies having minimum turnover of Rs. 500 crores with employees of minimum 1000 nos. All necessary software are to be developed, hardware are to be supplied and the project implemented and monitored for next 10 years.

With above, the entire setup of the DRTs will be much more technologically oriented. Accordingly the litigants and the advocates will be compelled to use modern ICT (Information and Communication Technology) tools.

We shall be watching the above development with a view to equip ourselves for the same.

 

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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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                                           (3) Shri Hira Ratan Manek (HRM) for his pioneering work on Solar healing vide his web site www.solarhealing.com and forum at www.lifemysteries.com                                    

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.

                                    (3) Shri Satyanarayan Morya alias 'Babaji' for his praiseworthy service to our nation. Please visit his site www.artistbaba.com 

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