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 

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

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

 

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

 

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

Following is the extract from our web page vide link

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


 

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

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

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

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

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

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

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

(v)           When the borrower has no objection.

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

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

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

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

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

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

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

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

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

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

 

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

Following is the extract from our web page vide link

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


 

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

 

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

Press Release
New Delhi , 23.09.2012

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

 

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


 

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

Following is the extract from our web page vide link

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


 

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

15 years after SC order, babus hold on to tribunals

Posted about 11 hours ago | 0 comment

 

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

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

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

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

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

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

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

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

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

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

Our Comments

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

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

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

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

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

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

 

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

 

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


 

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

Following is the extract from our web page vide link

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

 

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

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

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

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

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

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

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

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

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

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

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

Following is the extract from our web page vide link

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

The following measures are suggested:-

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

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

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

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

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

 

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

 

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

 

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

Following is the extract from our web page vide link

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


 

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

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

Our Comments

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

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

Following is the extract from our web page vide link

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

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

 

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

(3) SBI Amendment Act of 2007

Following is the extract from our web page vide link

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


 

With the above amendment, the shares of SBI with the RBI were transferred to the Central Govt. However the existing provisions of law under the RBI Act 1934 and other banking laws will continue to apply except the Administrative control which will vest with the Central Govt.

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IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION

K.S. Radhakrishnan and Dipak Misra, JJ.

September 4, 2012 CIVIL APPEAL NO. 6261 OF 2012 @ 

Special Leave Petition (C) No. 8875/2010  

Head Note:-

Consumer – Banking - Respondent had availed of a loan from the appellant bank to purchase a buffalo and the same was insured for Rs.15000/ Number of litigations in our country is on the rise, for small and trivial matters, people and sometimes Central and State Governments and  their instrumentalities Banks, nationalized or private, come to courts may be due to ego clash or to save the Officers’ skin. Judicial system is over- burdened, naturally causes delay in adjudication of disputes. The issues raised are purely questions of facts examined by the three forums including the National Disputes Redressal Commission and fail to see what is the important question of law to be decided by the Supreme Court. These types of litigation should be discouraged and message should  also go, otherwise for all trivial and silly matters people will rush to the court. The appeal is accordingly dismissed with cost of Rs.10,000/- to be paid by the bank to the respondent within a period of one month. Resultantly, the Bank now has to spend altogether Rs.25,950/- for a claim of Rs.15,000/-, apart from to and fro travelling expenses of the Bank officials. Let God save the Gramins.

 

J U D G M E N T 

K. S. RADHAKRISHNAN, J.

1. Leave granted.

2. Number of litigations in our country is on the rise, for small and trivial matters, people and sometimes Central and State Governments and their instrumentalities Banks, nationalized or private, come to courts may be due to ego clash or to save the Officers’ skin. Judicial system is over-burdened, naturally causes delay in adjudication of disputes. Mediation centers opened in various parts of our country have, to some extent, eased the burden of the courts but we are still in the tunnel and the light is far away. On more than one occasion, this court has reminded the Central Government, State Governments and other instrumentalities as well as to the various banking institutions to take earnest efforts to resolve the disputes at their end. At times, some give and take attitude should be adopted or both will sink. Unless, serious questions of law of general importance arise for consideration or a question which affects large number of persons or the stakes are very high, courts jurisdiction cannot be invoked for resolution of small and trivial matters. We are really disturbed by the manner in which those types of matters are being brought to courts even at the level of Supreme Court of India and this case falls in that category.

3. Jurisdiction of this Court is invoked by a Gramin Bank on an issue on which no question of law arises for consideration. Facts are as follows: Smt. Khazani, the first respondent had availed of a loan from the appellant bank to purchase a buffalo and the same was insured for Rs.15000/- for a period from 06.02.2001 to 06.02.2004 vide Animal’s tag No. NIA/03170 with the New India Assurance Company Ltd.– second respondent herein. Smt. Khazani had made payment of Rs.759/- as premium on 05.03.2001 vide receipt No. 170612. The buffalo unfortunately died on 27.12.2001. The post mortem was conducted by veterinary surgeon, Pataudi on 27.12.2001 vide PMR No.50.

4. Smt. Khazani lodged a claim for insurance money through the appellant bank and also supplied ear tag bearing No. NIA 03170 to the bank for forwarding the same to the insurance company. Since no steps had been taken either by the bank or by the insurance company, Smt. Khazani sent a notice on 30.07.2003 to the bank as well as to the insurance company, which yielded no results.

5. Smt. Khazani then filed a complaint bearing No.825 of 2004 before District Consumer Disputes Redressal Forum, Gurgaon. Thecomplaint was allowed by the Forum vide its order dated 26.07.2007 with cost stating as follows:

“We, therefore, allow this complaint and direct Opposite Party No.2 to pay the insurance money of the buffalo in question to the complainant together with interest at the rate of 9% p.a. from the date of death of buffalo till actual payment is made. Opposite Party No.2 is also burdened to pay Rs.3,000/- to the complainant on account of cost of litigation and compensation for the harassment caused by Opposite Party No.2 to the complainant. Order of this Forum be complied within one month”.

6. The bank, dissatisfied with the order by the District Forum, filed Appeal No.2404/2007 before State Consumer Disputes Redressal Commission, Haryana, Panchkula. Rejecting the appeal, the appellate forum held as follows:

“Admittedly, the complainant had got her buffalo insured with the opposite party no.1 with Tag bearing No.NIA03170. The post mortem report Annexure C-2 which was conducted by the vet. surgeon is a cogent proof with respect to the death of buffalo and in the said report the vet. surgeon had mentioned the Tag number of buffalo as 03170. However, the opposite party No.1 insurance company has denied having received of any Tag with the claim form submitted by the complainant. As per noting given by the field officer of the opposite party No.1, the buffalo was lying dead and there was no Tag in the ear of the dead buffalo. Thus, the burden shift on the opposite party No.2 that the Tag was not sent to the appellant – opposite Party No.1 for settling the claim in respect of the buffalo.” 

7. The matter did not end there. The bank again moved the National Consumer Disputes Redressal Commission, New Delhi against the order dated 21.07.2009 passed by the State Commission, Haryana by filing a Revision Petition No. 4098 of 2009. The National Commission dismissed the Revision on 25.11.2009 stating as follows:

“Finding recorded by the State Commission is a finding of fact, which cannot be interfered with in exercise of Revisional jurisdiction. Under Section 21 of the Consumer Protection Act, 1986, the National Commission, in revision, can interfere with the orders only if it appears that the Authority below has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity. We find no error/irregularity in the exercise of jurisdiction by the State Commission in its impugned order. Dismissed.”

8. The bank, still not satisfied, thought of bringing Smt. Khazani to the Supreme Court and filed the present Special Leave Petition against the order of the National Commission. Luckily, they got notice on the Special Leave Petition and Smt. Khazani has been brought to this Court. May be due to the ill-luck of the bank, the matter is before us. When the matter came up for hearing on 09.07.2012, we asked the counsel for the bank as to how much amount they had spent till date on this dispute which relates to the death of a buffalo, stake of which is only 15,000/-. We passed an order on 09.07.2012 which reads as follows:

“We find that the dispute is only with regard to Rs.15,000/- and the matter has still been brought to Supreme Court. Bank will file affidavit within four weeks with regard to the amount spent for this litigation. List after four weeks.” 

9. The Chief Manager of the bank in compliance with this order filed an affidavit with regard to the amount spent for litigation so far in a chart form which is reproduced hereunder:

S.No. Forum/Courts Amount of Legal Fees Misc. expenses Total 

1. In District Forum 2,200/- 200/- 2,400/- 

2. In State Forum 1,750/- 300/- 2,050/- 

3. In Supreme Court of India 7,500/- 1000/- 8,500/- Total 12,950/- 

10. The Chief Manager stated in the affidavit that no bill was raised by the counsel for the bank for conducting the matter before the National Consumer Dispute Redressal Commission. We have not been told how much money has been spent by the bank officers for their to and fro journeys to the lawyers’ office, to the District Forum, State Forum, National Commission and to the Supreme Court. For a paltry amount of Rs.15000/-, even according to the affidavit, bank has already spent a total amount of Rs.12,950/- leaving aside the time spent and other miscellaneous expenses spent by the officers of the bank for to and fro expenses etc. Further, it may be noted that the District Forum had awarded Rs.3,000/- towards cost of litigation and compensation for the harassment caused to Smt. Khazani. Adding this amount, the cost goesup to Rs.15,950/-. Remember, the buffalo had died 10 years back, but the litigation is not over, fight is still on for Rs.15,000/-.

11. Learned counsel appearing for the bank, Shri Amit Grover, submitted that though the amount involved is not very high but the claim was fake and on inspection by the insurance company, no tag was found on the dead body of the buffalo and hence the insurer was not bound to make good the loss, consequently the bank had to proceed against Smt. Khazani.

12. We are of the view that issues raised before us are purely questions of facts examined by the three forums including the National Disputes Redressal Commission and we fail to see what is the important question of law to be decided by the Supreme Court. In our view, these types of litigation should be discouraged and message should also go, otherwise for all trivial and silly matters people will rush to this court.

13. Gramin Bank like the appellant should stand for the benefit of the gramins who sometimes avail of loan for buying buffaloes, to purchase agricultural implements, manure, seeds and so on. Repayment, to alarge extent, depends upon the income which they get out of that. Crop failure, due to drought or natural calamities, disease to cattle or their death may cause difficulties to gramins to repay the amount. Rather than coming to their rescue, banks often drive them to litigation leading them extreme penury. Assuming that the bank is right, but once an authority like District Forum takes a view, the bank should graciously accept it rather than going in for further litigation and even to the level of Supreme Court. Driving poor gramins to various litigative forums should be strongly deprecated because they have also to spend large amounts for conducting litigation. We condemn this type of practice, unless the stake is very high or the matter affects large number of persons or affects a general policy of the Bank which has far reaching consequences.

14. We, in this case, find no error in the decisions taken by all fact finding authorities including the National Disputes Redressal Commission. The appeal is accordingly dismissed with cost of Rs.10,000/- to be paid by the bank to the first respondent within a periodof one month. Resultantly, the Bank now has to spend altogether Rs.25,950/- for a claim of Rs.15,000/-, apart from to and fro travelling expenses of the Bank officials. Let God save the Gramins.

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

 

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


 

(1) Bank Official committed Serious Irregularities: Court

Following is the extract from our web page vide link

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


 

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


 

Bank official committed serious irregularities: court

CHENNAI, August 19, 2012

Directs bank’s CMD to conduct probe and take action

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

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

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

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

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

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

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

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

(2) Frauds committed by Bank Officials


 

Following is the extract from our web page vide link

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


 

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

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

(b)   All dealings should be covered in writing.

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

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

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

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

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

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

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

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

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

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

 

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

 

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

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


 

Following is the extract from our web page vide link

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


 

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

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

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

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

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

 

(2) Dealing with a Powerful Recovery Agent


 

Following is the extract from our web page vide link

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


 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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


 

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

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


 

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

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

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

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

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

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

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

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

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

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

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


 

Following is the extract from our web page vide link

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


 

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

From

Ajay Kumar Khemka decovitrified@yahoo.co.in

 

 

 

 

Friends, 

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

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

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

It'll just take a minute! 

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

AJAY 
 

From

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


 

 

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

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

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

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

Following is the extract from our web page vide link

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

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

Judiciary is for justice, not just cases

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

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

 

 

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

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

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

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

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

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

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

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

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

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

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

 

(2) Amount of Counter-claim

Following is the extract from our web page vide link

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

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

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

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

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

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

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

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

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

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

Following is the extract from our web page vide link

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

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

 

 

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

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

 

Weekly Mails - 1-10  11-20  21-30  31-40  41-50  51-60  61-70  71-80 81-90 91-100 101-110 111-120 121-130 131-140141-150 151-160 161-170 171-180 181-190 191-200 201-Latest

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


 

Following is the extract from our web page vide link

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

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

 

By Express News Service - KOCHI

29th July 2012 10:44 AM

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    

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E-mail - ramkishandrt@gmail.com and ramkishan@drtsolutions.com

Popularity of our web site :- The key word for search of our website is 'drt'  or any phrase commencing with 'drt'  We are on the top in Google Search for 'drt' among 28,60,000 results globally. In most of the search engines like yahoo, msn, google, excite, altavista, mamma, alexa etc., To verify, you may visit www.yahoo.com, www.msn.com, www.rediff.com, www.indiatimes.com, www.altavista.com, www.google.com, www.excite.com, www.hotbot.com, www.123india.com, www.aol.com, etc. Our reference appears in www.economictimes.com, www.amazon.comwww.financialexpress.com, www.lawcrawler.com, www.findlaw.com, www.law.com, www.supremecourtofindia.com, www.supremecourtonline.com

(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.

Our this web site is dedicated to Yoga Rishi Baba Ramdev Ji Maharaj:- Our this web site is respectfully dedicated to Yoga Rishi Baba Ramdev Ji Maharaj whose method of Pranayam has cured even incurable diseases and thus has revolutionized modern medical science. For further details please visit our special page by clicking here Baba Ramdev Ji Maharaj, Yoga Guru, Cure for All Diseases, Medical Science Revolution

Site also dedicated to:-   (1) Swami Ramdevji, Acharya Balkishan and their Guru Pradumn Maharaj.

                                             (2) H.H. Maharishi Mahesh Yogi and Acharya Rajnish, the greatest gurus of all time www.maharishi.com, www.osho.com

                                           (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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