DRT Solutions Weekly Mail – 340^th Issue dated 14^th November ’14

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(1) Right to Life Overrides Right to do Business, Supreme Court Rules

Mr Pradeep Kumar, one of our clients from Cochin has made reference to the following news item which has an important implication:- 

Right to life overrides right to do business, Supreme Court rules

By Dhananjay Mahapatra, TNN | 14 Oct, 2014, 11.43AM IST

http://economictimes.indiatimes.com/articleshow/44810278.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

NEW DELHI: Right to life outweighed right to do business with the Supreme Court on Monday rejecting State Bank of India's petition challenging an Allahabad high court order directing sugar mills in Uttar Pradesh to sell the sugar stock hypothecated to SBI against loans to pay sugarcane farmers' dues

Sugar mills had taken loans totaling Rs 3,000 crore from SBI by hypothecating their sugar stock. Under law, the creditor bank has the first right on the hypothecated sugar to realize its dues if the mills default on repayment of loans.

Acting on a PIL filed by Rashtriya Kisan Mazdoor, the HC had invoked Section 17(5) of UP Sugarcane (Regulation of Supply and Purchase) Act, 1953 and extinguished the right of secured creditors and directed collectors to grant permission to sugar mills to sell the sugar stock for payment of dues to cane growers. 

Appealing against the HC order through advocate Sanjay Kapur, SBI told the SC on Monday that the mills were now disposing of sugar stock, which was a security against loans. SBI apprehended that the Rs 3,000 crore loans it had advanced to mills would turn non-performing assets. 

SBI also said the HC order for disposal of sugar stock could potentially turn sugar mills sick as it would proceed under the coercive Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (Sarfaesi) Act to sell the mills' assets to recover its dues. 

It also said no bank would come forward to grant any advance/loan to these sugar mills in case it was held that first charge on sugar stock would be in favour of cane growers and not banks, as held by the HC. 

A bench headed by Chief Justice H L Dattu felt the cane growers' right to life was more important than the bank's right to carry on business, especially in the face of hardships faced by farmers leading to many suicides. 

"In view of the suicides among farmers, let us put a quietus to this," the bench observed before dismissing SBI's appeal. 

Similar considerations had weighed with the court in dismissing the appeals filed by four public sector insurance companies on settlement of claims filed by Jammu & Kashmir flood victims. The court had refused the insurance companies' plea to conduct preliminary survey before settling claims. 

The SC asked them to implement the HC order, which had directed them to pay up 95% of the claim amount if the insurance cover was below Rs 25 lakh and 50% for those with insurance cover exceeding Rs 50 lakh. 

In the recent past, SBI has been at the receiving end also due to scams. Close on the heels of NPAs after cancellation of 2G spectrum licences by the apex court, it suffered a jolt when the SC cancelled all coal block allocations to private companies, which had taken huge loans from SBI. 

The Coal Producers Association had informed the court that loans worth Rs 2.5 lakh crore advanced by banks and financial institutions would become non-performing assets because of en masse cancellation of coal blocks. It had said that SBI might suffer the biggest jolt as it could suffer a hit of up to Rs 78,263 crore, which was almost 7.9% of its net worth for 2012-13.

(2) High-value Loan Defaults : Wilful Defaulters may face Trial in 30 Days

Mr Pradeep Kumar, one of our clients from Cochin has made reference to the following news item which is self explanatory:- 

Effort to restrict high-value loan defaults: Wilful defaulters may face trial in 30 days

Dheeraj Tiwari, ET Bureau Nov 11, 2014, 04.33AM IST

NEW DELHI: Those accused of wilful default face the prospect of being put on trial within 30 days of a bank determining that a borrower was not paying despite being able to, if a proposal being considered by a committee set up by the government to deal with high value loan defaults finds its way into the statute books.

The finance ministry had set up a committee to suggest measures to deal with wilful defaulters. VK Bhasin, former secretary in the law ministry's legal department, is the advisor to the committee. "Some suggestions include, 'summary trials,' in such cases.

The recommendations are being examined," said a person aware of the deliberations.Summary trial is essentially a fast track proceeding where a case is resolved in one or two sittings.

However, no sentence of imprisonment for a term exceeding three months can be passed in a summary trial.

"These are meant to act as deterrent, and in cases where more action needs to be taken, regular trial procedure can be followed," said a finance ministry official, adding that the recommendations are still being debated.

The number of wilful default cases at state run banks has risen to 1311 at the end of December 2013 from 854 at the end of March 2011.

State-run lenders are attempting to declare Kingfisher Airlines and its promoter Vijay Mallya as wilful defaulters. Kingfisher Airlines owes about Rs4,022 crore to a consortium of 17 lenders. Mallya has chllened the move to declare him a willful defaulter in court.

Summary trials are dealt with under section 260 - 265 of The Code of Criminal Procedure, 1973.

Wiflul defaulters lose access to capital markets and cannot access more loans from a bank or financial institution as per current regulations. The lenders can also initate criminal proceedings against willful defaulters, but there is no legal backing for speedy recovery of dues.

The committee, which also had representation from Indian Banks' Association (IBA), Debt Recovery Tribunals (DRTs) and RBI is also examining suggestions to amend the Sarfaesi Act, an act under which banks can seize assets of borrowers, and RDDB Act (Recovery of Debts Due to Banks and Financial Institutions). In his budget speech, finance Minister Arun Jaitley had announced setting up of six new debt recovery tribunals and said that government will come up with effective measure for revival of stressed assets.

There are over 40,000 cases worth Rs 1.73 lakh crore pending before various courts and debt recovery tribunals."If these summary trials can include the large corporate defaulters then only there will be some impact," said an executive director with a state run bank. The top 30 non-performing accounts of state run banks account for 40.2 % of their gross bad loans.Experts believe that wilful defaulters will not be deterred unless the judicial machinery to deal with it is specialized and the trial of offences are expeditious.

DRT Solutions Weekly Mail – 339^th Issue dated 7^th November ’14

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(1) SARFAESI Act – Appeal to DRAT – Questioning Constitutional Validity

We have been raising this issue past several years. Many borrowers have suffered but none was coming forward to take up effective remedial action by filing writ against the constitutional validity of the said provision. Now one of our clients from Mumbai has decided to initiate the same. The borrowers who are interested to join such important legal fight may contact us thorugh mail or phone for the details.
 

(2) How British Made India Poor

Mr Firoz Poonawalla has sent the following important piece:-

HOW BRITISH MADE INDIA POOR : SHASHI THAROOR

Kottayam: Recently, the 400th anniversary of the beginning of the 
 British colonial rule in India was celebrated in London with a debate 
 on whether British rule did more good to India. The person invited 
 from India to speak on this subject was Shashi Tharoor. With facts 
 and figures, Tharoor argued that British rule did more harm to India 
 than good. And in the final voting, Tharoor's arguments won. On 
 returning from London, Tharoor shared that experience with Manorama Online.
=========================================================

 A speech that you made recently in London was very remarkable. It is 
 said that it opened the eyes of many British people. Could you elucidate?

 This year marks the 400th anniversary of the British presence in 
 India. It was in 1614 that Sir Thomas Roe came to the court of 
 Emperor Jahangir as the first ambassador of King James I. They have 
 also directly ruled India for 200 years. Many believe that their rule 
 was very good for India. The topic of the debate held in the chamber 
 of the Supreme Court in London was this: 

Under British rule, India gained more than Britain.

 Three people spoke in favour of the subject and three spoke against 
 it. That's how they made the panel. I spoke against it. Besides me, 
 there were two British writers on our side. At the beginning of the 
 debate, they took a vote. Most of the audience were British. Because 
 of that, in the first vote, most votes were cast in favour of the 
 subject. However, in the final voting, after our counter-arguments, 
> > we got more votes. A big chunk of the British who voted in favour of 
 the topic first, supported us in the end. If you ask what we did, we 
 presented some facts and figures there.
 
 At the time the British came to India, the GDP of India was 23 per 
 cent of the global GDP. Which means India was a rich country. 
 However, when the British left India, our GDP had fallen to merely 4 
 per cent. What was the reason? The British industrialised their 
 country by de-industrialising India. That destroyed India.
 
 For 2,000 years, ie from the Roman era, we were exporters of the best 
 textiles. The best textile industry in the world cotton, muslin, 
 linen, etc was in India.  By destroying it, they relocated the 
 industry to Britain. The British industrial revolution started from there.
 
 After coming here, the British destroyed our industry. The best 
 weavers of the world were in Bengal. To prevent them from weaving 
 again, the British cut the thumbs of many of them. Then they took the 
 art of weaving and the looms to Britain. They took our raw material 
 too. Then they started making the products there and exported them to 
 India. Thus the industry here was completely relocated there. I 
 highlighted all these things in my speech.
 
 We were a big exporting country, a very big exporter at that time. 
 Then our share was 27 per cent of the global exports. Under British 
 rule, this fell to merely 2 per cent. In addition to that, the 
 cruelty that they showed to India was very big. Because of that 
 cruelty, 2.75 crore people lost their lives. They starved so many 
 Indians to death. They exported all the grains produced here to 
 Britain, and ended the availability of food here. That caused the 
 Bengal famine and the deaths from starvation in India's history.
 
 Though many others had ruled India before the British arrived, deaths 
 from starvation had never been widely reported. Ours was never a 
 starved country. However, the British knowingly made it into one. 
 That is the truth. In Bengal alone, 40 lakh people died. It was the 
 time of the Second World War. All the food made here was forcibly 
 exported for British soldiers and others. Nothing was available here.
 
Then Winston Churchill was the British prime minister. When some good 
 British people told Churchill that it was famine in India and people 
 were dying in hordes, what was his reply? His sarcastic reaction was 
 that if Indians were starving to death, why wasn't Gandhi dying with 
 them. We were ruled by such people then. The truth is that those 
 rulers had so much racial hatred.
 
 What is their claim? They claim that India never had political unity, 
 and it was because of their ability that many local kingdoms were 
 united to form a big country like India. These claims do not stand 
 the test of history. The historical fact is that even much before 
 that those who ruled here and the people here had the concept of a 
 big country called India.
 
 Long before the British arrived, a cultural unity called India or 
 Bharat existed here. Not only that, it is history that many kings 
 waged wars and made conquests to transform India into a big country. 

 Ashoka, Vikramaditya and the Mughals are some examples. They all have 
 tried to unify India from the north to the south and from the west to the east.
 
 Adi Sankara, who was born in the seventh century in Kerala, travelled 
 all the way to Kashmir and established monasteries from Dwaraka in 
 the west to Puri in the east. Then, the thought that India is one big 
 country was there in the minds of the people here a thousand or even 
two thousand years ago.
 
 The argument that the British united India through modern transport 
 facilities and communication is not right. The argument that the 
 British themselves were needed to unite India is beyond reason. What 
 was the condition of Italy 150 years ago? Then Italy was made up of 
 about 25 local kingdoms. Was it Britain that united them? No, it was 
 spearheaded by their nationalist leaders like Garibaldi. Don't you 
 remember the Garibaldi march? That was for the unification of Italy.
 
 The division of Bengal was part of the British policy of divide and 
 rule, making Hindus and Muslims to fight each other. Ten lakh people 
 died and about 1.75 crore people lost their homes and wealth.
 
 Another thing they claim is the railway. It is said that the railway 
 united India. Did they make rail facilities for Indians? No, it was 
 for their needs, to transport goods. In the beginning, they had not 
 considered passenger trains. Railway was necessary to take raw 

 materials for British industrialisation from different corners of 
 India to the ports for shipping. There is railway in places where the 
 British have not ruled. If there is money, all such things can be brought.

 Who made profit from the railway here? Weren't it the British? Do you 
 know how British investors were brought to establish railway in 
 India? The East India Company had offered twice the profit for 
 investing in Indian railway compared with the investment in shares in 
 London. Thus they collected money, and the British companies that 
 invested made huge profits. That is the historical truth.
 
 To build one kilometre of railway line in India, they had calculated 
 twice the amount spent in America and Canada. As per that they 
 collected tax also from Indians. That is how railway came here to 
 serve the British. It was not meant to improve the lives of Indians.
 

 Then, there is the English language. That is a language I myself 
 like. Whatever, they taught us English to serve them. They did not 
 teach every Indian. For their needs and convenience, they taught some 
 Indians English. What did Macaulay say? To serve their needs, they 
 needed some Indians who could speak English. They gave the 
 opportunity to study English to many Indian clerks who served as 
 intermediaries of British governors. However, the ability of our 
 freedom fighters and our leaders was that they were able to make that 
 language popular and turn it into a weapon in the fight against the British.

DRT Solutions Weekly Mail – 338^th Issue dated 31st October ’14

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

(1) Cheque Bouncing – Jurisdiction of Courts Redefined 

The following news item is ueful:-

Cheque Bouncing- Jurisdisction Of Courts Redefined

Last Updated: 24 October 2014

http://www.mondaq.com/india/x/349230/trials+appeals+compensation/CHEQUE+BOUNCING+JURISDISCTION+OF+COURTS+REDEFINED

The legal nodus of determining the Jurisdiction of Courts in cheque bouncing cases has finally been resolved by the Supreme Court of India. A three Judges bench of the Hon'ble Supreme Court in Dashrath Rupsingh Rathod vs State of Maharashtra¹ has finally decided the issue of territorial jurisdiction concerning criminal complaints filed under section 138 of the Negotiable Instruments Act, 1881. The Court held that return of the cheque by the drawee bank alone constitutes the commission of the offence under section 138 of the Negotiable Instruments Act, 1881 and indicates the place where the offence is committed. Hence the place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank, is located.

The aforementioned judgment took a contrary view from what was laid down by a two Judges bench of the same court in K. BhaskaranVs.Sankaran Vaidhyan Balan and Anr². K. Bhaskaran observed that the offence under Section 138 of the NI Act, 1881 can be completed only with the concatenation of a number of acts. Following are the acts which are components of the said offence: (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice. It is not necessary that all the five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at five different localities. But concatenation of all the above five is a sine qua non for the completion of the offence under Sec. 138 of the NI Act. Referring Section 178(d) of the Code of Criminal Procedure, 1973 it is clear that if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the NI Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local' areas within the territorial limits of which any one of those five acts was done.

But the Hon'ble Supreme Court in Dashrath Rupsingh Rathod disagreed with the Bhaskaran judgment and observed that Bhaskaran allows multiple venues to the Complainant which runs counter to this Court's preference for simplifying the law. Courts are enjoined to interpret the law so as to eradicate ambiguity or nebulousness, and to ensure that legal proceedings are not used as a device for harassment, even of an apparent transgressor of the law. Law's endeavour is to bring the culprit to book and to provide succor for the aggrieved party but not to harass the former through vexatious proceedings. Therefore, precision and exactitude are necessary especially where the location of litigation is concerned. The Court further observed that a reading of Section 138 of the NI Act in conjunction with Section 177 of Code of Criminal Procedure leaves no manner of doubt that the return of the cheque by the drawee bank alone constitutes the commission of the offence and indicates the place where the offence is committed. In this analysis the Hon'ble Supreme Court held that the place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank, is located.

Keeping in mind the fact that the present decision will have a massive impact on the cases already pending in various Courts if the same is applied prospectively, the Supreme Court thought it to be expedient to direct that only those cases where, post the summoning and appearance of the alleged Accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will proceed to continue at that place. To obviate and eradicate any legal complications, the category of Complaint cases where proceedings have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred by us from the Court ordinarily possessing territorial jurisdiction, as now clarified, to the Court where it is presently pending. All other Complaints, including the ones where the accused/ Respondent has not been properly served shall be returned to the Complainant for filing in the proper Court. If such Complaints are filed /refiled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred.

It was also observed by the Hon'ble Supreme Court that the relief introduced by Section 138 of the NI Act is in addition to the contemplation in the Indian Penal Code. It is still open to such a payee recipient of a dishonoured cheque to lodge a First Information Report with the Police or file a Complaint directly before the concerned Magistrate. If the payee succeeds in establishing that the inducement for accepting a cheque which subsequently bounced had occurred where he resides or ordinarily transacts business, he will not have to suffer the travails of journeying to the place where the cheque has been dishonoured. All remedies under the Indian Penal Code and Code of Criminal Procedure are available to such a payee if he chooses to pursue this course of action, rather than a Complaint under Section 138 of the NI Act. And of course, he can always file a suit for recovery wherever the cause of action arises dependent on his choosing.

CONCLUSION

The Hon'ble Supreme Court by way of this latest judgment has finally put an end to the perplexity of territorial jurisdiction in cases under 138 of NI Act by clearly laying down that only return of the Cheque by the drawee bank constitutes the commission of the offence under section 138 of the Negotiable Instruments Act, 1881 and also indicates the place where the offence has actually been committed. Hence it is that place, situs or venue where the drawee bank is located, is the place where judicial inquiry and trial of the offence must logically be restricted.

(2) DRT Auction of Hukumchand Mill Land gives Workers a New Hope 

The following news item is self explanatory:- 

Auction of Hukumchand Mill land gives former employees a new hope

TNN | Aug 25, 2014, 03.24 PM IST
http://timesofindia.indiatimes.com/city/indore/Auction-of-Hukumchand-Mill-land-gives-former-employees-a-new-hope/articleshow/40866923.cms

INDORE: The ex-employees of Hukumchand Mill, who have been struggling to get their pending dues for the last two decades, see a ray of hope in Debt Recovery Tribunal's (DRT) decision to auction 42.49 acres of prime land of mills with reserve base price of Rs 400 crore. 

DRT on Thursday had set the timeline for the auction of land for settling dues of employees. The auction process will start from September 6 and by October 6, interested parties have been asked to submit their forms with 10 per cent of reserve price land as earnest money. The land of mills will be auctioned on October 10. 

Vice-president of Mills' Employees Association, Harnam Singh Dhaliwal said that revaluation of the land was carried out on the directions of High Court. The valuation report had mentioned the price of land as Rs 343 crore, but DRT set Rs 400 crore as reserve price of land. 

The revaluation of land has failed to benefit employees as reserve price of land remained the same. DRT had carried out valuation of land five years back and set a base price of Rs 400 crore. Thereafter, it was challenged by the Mill Employees union as at present, market price (according to guideline rate) of Mill's land is around Rs 1600 crore. Now, DRT has again set Rs 400 crore as reserve price of land. The value of land has remained unchanged in last five years. 

As of now, around 6,000 employees have pending dues of Rs 229 crore. Bank claim to have pending dues of Rs 387 crores and to recover this amount bank was auctioning the land through DRT. 

In 2013 HC has directed for auction of land with the direction to settle dues of employees first but auction was stalled after objection over ownership of land. State government had claimed that the land belongs to industry department.

DRT Solutions Weekly Mail – 337^th Issue dated 24^th October ’14

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(1) RBI Tightens Sale of Bad Loans to ARCs

The following news item is self explanatory:-

Aug 07, 2014, 05.15 PM IST | Source: CNBC-TV18

RBI tightens sale of bad loans to asset reconstruction cos

The RBI has asked the ARCs to be 15 percent upfront, many ARC’s did not want to make any money out of those assets but just wanted the consulting fees which was a percentage of the value of the security receipts. 

Read more at: http://www.moneycontrol.com/news/cnbc-tv18-comments/rbi-tightens-salebad-loans-to-asset-reconstruction-cos_1149185.html?utm_source=ref_article

Reserve Bank of India (RBI) tightened non-performing assets (NPA) sale norms for the public sector banks in an attempt to tackle the bad loans situation. RBI says asset reconstruction companies (ARCs) will now have to invest and hold minimum 15 percent security receipts as against 5 percent held earlier. The move, however, may not particularly affect only the PSU banks, but all banks. Sale to assets reconstruction companies has been happening for the past ten years. Last year, the RBI forced banks to use more ARCs because there was a pile of assets and not everything was being used.

The debt recovery tribunal (DRT), the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act) were among those that were being used, but the ARC’s were not being used enough and so, upon being forced a large number of sales, some Rs 3,700 crore got sold in one year and the assets under management (AUM’s) increased. Now there were worries in banking circles that some of these sales could be a little artificial just to park some of the bad loans with the ARC’s, but that fear cannot be proved because three years are not over and not enough time elapsed for the market to find out whether those assets could be revamped But now, one can actually get to know within a year because one has to value the assets and pay the management consulting fees.

Until now the ARC is paid 5 percent of what it valued those assets, the remaining 95 percent was paid only as security receipts more in the form of interest only (IO) user bonds paper. At the end of one year, if it is unable to recover loans, it was put back to the banks or to the extent that it was recovered. The RBI has asked the ARCs to be 15 percent upfront, many ARC’s did not want to make any money out of those assets, but just wanted the consulting fees which was a percentage of the value of the security receipts. There was always a desire not to value the assets lower. If an asset turned bad, if it was Rs 100 crore the only thing one got from it was the land, the scrap value of the plant and other stuff, which would be normally 70-75 percent or maybe much less. If one values it at Rs 100 then the management fees increased and at the end of the year one has to push it back because he/she is unable to sell it off.

(2) Use IT in Judiciary for Speedy Justice: Madras High Court

The following news item is a useful information:-

 

Use IT in Judiciary for Speedy Justice: Madras High Court

South | Press Trust of India | Updated: September 07, 2014 00:46 IST

http://www.ndtv.com/article/south/use-it-in-judiciary-for-speedy-justice-madras-high-court-587873

Stressing the need to use Information and Technology in the Judiciary for speedy justice, the Madras High Court today directed a subordinate court to dispose off appeals in two cases in a month.

Chennai : Justice S Vimala observed that despite a lapse of one and half decades, subordinate courts through a centrally sponsored scheme envisaged in 1977,were sought to be computerised. Though equipment was purchased and some software sent to all courts by NIC, there was no computerisation of documents. E-filing was introduced in some states but e-filing in complete shape was not done in the Tamil Nadu Judiciary.

She suggested it may be introduced in a manner by which documents will be available in e-format or after filing, court could convert all documents in e-form so that documents will be available at all times quickly and easily in e-format.

Finding fault with a subordinate Court which kept appeals on a civil matter pending from Feb 4 2009 for want of records from the III Additional Sub Court to the District Court in the same campus, the judge said a perusal of the docket entry showed that from 2008/2009 till Mar 16 2014, the appeal was adjourned on the sole ground that records were awaited.

Of 89 entries, only two to three read "Judge on transfer," "Judge on Leave" and Judge on duty". Excepting this, all other entries read 'Await Records'.

She observed there could have been no scope for calling for records had there been computerisation at the level of Subordinate Courts.

The judge also observed that the appellate court was not justified in calling for records without deciding whether it would be necessary at all to call for it and it was totally improper to have waited for the receipt of the records. 

She then directed the Sub Court, Coimbatore, to send the records immediately, if not already done and for the District Judge to dispose of the appeal, within one month from date of receipt of a copy of the order. She also directed in the two cases appeals may be heard jointly and dispose it.

DRT Solutions Weekly Mail – 336^th Issue dated 17^th October ’14

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(1) Advocate Nilesh Ozha, Mumbai files Criminal Complaint against High Court Sitting Judge Mrs Roshan Dalvi – Also demands Rs 100 Crore Damages

On 13.10.14, Adv. Nilesh Ozha filed complaint case against High Court Judge Mrs Roshan Dalvi under sections 167, 219, 220, 342, 500, 501, 504, 506(1) of I.P.C. and demanded compensation of Rs. 100 crores. The matter was placed before Metropolitan Magistrate (8^th Court) who passed the order that the case to be placed before regular court on Monday. Advocate Ozha relied on communication with President of India’s Office and Judgment of SC in (2012) 1 SCC (CRI) 1041. He said the judge shouted at him, wrongfully detained him for 2 hours and prepared forged/false records of court to defame and injured him. He also filed a Criminal Writ Petition before Bombay High Court No 3611/2014 for taking action against the said Judge. The copy of the complaint and other documents are available on the internet in dropbox.

Question has been raised if the said Judge is innocent then why she is not permitting CBI to investigate the case. On 11^th the National Secretary, Human Rights Security Council sent notice to CBI.

(2) Borrowers to attend Court – Submit Written Arguments – Examine Orders – If Facts not Recorded Correctly or Left Out, must Submit Application for Rectification/Correction otherwise No Remedy afterwards

The following extract from SC judgment is self explanatory:-

(1982) 2 Supreme Court 463 (D.B.) in the matter of State of Maharashtra vs Ramdas Shrinivas Nayak  wherein the Apex Court has laid down the law as under (portion made bold for emphasis):-

“4  - - We are afraid that we cannot launch into an enquiry as to what transpired in the HighCourt. It is simply not done. Public policy bars us. Judicial decorum restrains us. Matters of judicial records are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. “Judgments cannot be treated a mere counters in the game of litigation.”¹

1.  Per Lord Atkinson in Samasundaram Chetty vs Subramanian Chetty, AIR 1926 PC 136 : 99 IC 742

We are bound to accept the statement of the judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the  judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in thejudgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have beenwrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error.² 

2.  Per Lord Buckmaster in Madhu Sudan Chowdhri vs Chandrabati Chowdhrain,AIR 1917 PC 30 : 42 IC 527   

That is the only way to have the record corrected. If no such step has been taken, the matter must necessarily end there. Of course a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession - - - “

7. In Sarat Chandra Maiti vs Bibhavati Devi⁵  Sir Ashutosh Mookerjee explained what had to be done:

- - - It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, where practicable, is to apply to the Judge without delay and ask for rectification or review of the judgment - - -“

5. 34 Cal LJ 302; AIR 1921 Cal 581

8. So the judges’ record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the judge himself but nowhere else.”

9. - - - As we said, we cannot and we will not embark upon an enquiry. We will go by the judges’ record.”

DRT Solutions Weekly Mail – 335^th Issue dated 10^th October ’14

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

(1) Our Client Gets Support of HC – Discovery of Documents

Our one of the clients contesting his case in DRT Kolkata informed us that the DRT declined discovery of documents and threatened to finalize the SA on the next date. Our client approached HC Calcutta which decided that discovery of documents is essential in the DRT trial and the same should be permitted.

We have been emphasizing this aspect in several of our weekly mails. DRT is a trial court. The facts are to be determined first. In banking cases, the facts are contained in documents. Hence no trial in DRTs can be accomplished without production and inspection of documents. Most of the DRTs are ingnoring this important aspect. Above decision of the HC will go a long way to secure proper trials in DRTs

(2) Pace of Justice Delivery System not Satisfactory: SC

The following news item is self explanatory:-

Pace of justice delivery system not satisfactory: SC

NEW DELHI, August 1, 2014

Updated: August 1, 2014 18:23 IST 

http://www.thehindu.com/news/national/pace-of-justice-delivery-system-in-india-is-not-satisfactory-supreme-court/article6272498.ece

Expressing concern over the slow pace of justice delivery system in the country, the Supreme Court on Friday asked the Centre to formulate a policy within four weeks to speed up trial in criminal cases, saying it is not a good sign of democracy and good governance.

A bench headed by Chief Justice R.M. Lodha said that solution of the problem does not lie in fast tracking one category of cases but to overhaul the entire system.

“I am sorry to say but criminal justice system is not moving at a speed which I would like to see. We need more courts and improved infrastructure,” Justice Lodha said.

“Fast tracking one category of cases is not going to improve the situation. It would affect other cases. Fast tracking of justice is needed for all cases not only for one category. Ask government to convene a meeting with Chief Secretary and Law Secretary of states to formulate policy for speeding up the justice delivery system,” he told Attorney General Mukul Rohatgi.

He said it is for the Centre to take a decision after consulting state governments as the judiciary has no power to set up more courts for speedy trial.

“I am worried that pace of criminal justice system is not satisfactory. I have my own limitation as Chief Justice of India as I cannot constitute more courts,” Justice Lodha said asking the Centre to respond within four weeks on what action it is contemplating for fast tracking of criminal trials.

“For good governance it is necessary that criminal justice is fast tracked. It is high time that the Centre takes steps in consultation with state government for fast tracking criminal justice system so that cases be decided expeditiously,” the bench also comprising justices Kurien Joseph and R.F. Nariman said.

“It is not a good sign for democracy that criminal cases remain pending for years in the country,” the bench said.

The apex court’s view against putting one category of cases on fast track assumes significance in the light of Prime Minister Narendra Modi had asked Home and Law Minister to draw up a blueprint for settling of cases against politicians, especially legislators, within one year.

The bench was hearing a PIL filed by Bhim Singh on Pakistani prisoners languishing in Indian jails. It noted that order was passed in November 2008 to finish the trial in all such cases within a year but they are still pending even after passing of five years and eight months.

DRT Solutions Weekly Mail – 334^th Issue dated 3^rd October ’14

All Weekly mails right from 1^st Issue to latest, click on top of this page

(1) Supreme Court declares NTT Act Unconstitutional

The Supreme Court has declared the National Tax Tribunal Act 2005 as constitutionally invalid vide its judgment delivered on 25.09.14. The Supreme Court stated that Chandra Kumar [L. Chandra Kumar vs Union of India (1997) 3 SCC 261] and R. Gandhi have allowed tribunalilzation at the original stage subject to certain safeguards. The boundary has finally been crossed in this case and hence the NTT Act is held unconstitutional being the ultimate encroachment on the exclusive domain of the superior Courts of Record in India.

The legislature in this case proposed to supplant the High Courts’s power of judicial review under Article 226/227 by the NTT which the Supreme Court said that it can not be done even by Consitutional Amendment as it will change the basic structure of our constitution.
 

(2) Govt to Amend SARFAESI & DRT Acts to Help Banks Recover Money

The following news item is self explanatory:-

Government to amend SARFAESI and DRT Acts to help banks recover money

ET Bureau | Aug 21, 2014, 12.18PM IST

http://timesofindia.indiatimes.com/business/india-business/Government-to-amend-SARFAESI-and-DRT-Acts-to-help-banks-recover-money/articleshow/40575904.cms

MUMBAI: Rules for naming PSU bank bosses to be tweaked, bankers to be shielded for legitimate decisions. 

The finance ministry will back lenders in changing management of companies that wilfully default, tweak the rules of appointment of public sector bank chiefs, and make sure that bankers are not victimised. 

"A bona fide decision can also go wrong...we can't penalise a person for that. He has to be protected.Otherwise, no one will take decisions. So, we will protect the person where there is no collusion," GS Sandhu, secretary , financial services, said here on Wednesday. 

His comments come at a time decision-making at state-owned banks has slowed down amid fears that officers who sanction loans could be pulled up by the Central Vigilance Commission (CVC) if an account turns bad. 

In a separate development, Oriental Bank of Commerce and Dena Bank have initiated a forensic audit after it surfaced that Rs 436 crore has been misappropriated from fixed deposits of customers. 

Soon after Syndicate Bank CMD SK Jain was arrested over allegations of bribe against loan, the Central Bureau of Investigation (CBI) had raised concerns over the high quantum of bad loans in the banking system, indicating collu sion between lenders and promoters. 

Speaking to newspersons at the annual general meeting of Indian Banks' Association (IBA), Sandhu said the government is also working towards amending the Debt Recovery Tribunal (DRT) and Securitisation & Reconstruction of Financial Assets and Enforcement of Security Interest ( Sarfaesi) Act to arrest the surge in sticky loans. 

A change of management is very difficult in India, he said. "The tendency on the part of promoters is to stick to the unit. No matter what happens...even if they can't provide additional funding, or run it. But they will not move out. So we have to provide legal provision to force them to move out and bring in someone else who can bring additional capital, additional equity and run the unit and pay the money back to banks," he said speaking at the annual general meeting of IBA. 

He added that change of management will be applicable "wherever the borrower is not repaying deliberately...wilful defaulter. In those cases by legal force change of management can be done." 

On the appointment of PSU bank chiefs, Sandhu said the government is thinking of appointing CMDs for five years with a caveat that they will have to step down after three years for nonperformance. 

He was categorical that the government will not endlessly infuse capital to keep weak banks afloat. "Whether it is a private or public sector bank, it has to manage its affairs by generating revenues. The government can not endlessly keep on providing capital," he said. 

The Reserve Bank of India has estimated that private and public sector banks will require Rs 4.755 lakh crore by 2018 to adhere to Basel III norms - the global regulatory standard on bank capital adequacy ratio.

DRT Solutions Weekly Mail – 333^rd Issue dated 26^th September ’14

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

(1) Supreme Court on Expunging Unjustified and Unwarranted Remarks – Necessity of Judicial Restraint and Discipline 

Many a times, the Courts are making unjustified and unwarranted remarks. Such remarks may be expunged as laid down in the matter of AM Mathur vs Promod Kumar Gupta vide citation AIR 1990 Supreme Court 1737, as under:-

“Judges ought not to have commented on the professional conduct and that too without an opportunity. The observations made and aspersions cast on the professional conduct being not only without jurisdiction, but wholly and utterly unjustified and unwarranted were expunged.

Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be a constant theme of our Judges. This quality in decision making is as much necessary for Judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect; that is, respect by the judiciary. Respect to those who come before the Court as well to other co-ordinate branches of the State, the Executive and Legislature. There must be be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will neither be good for the judge nor for the judicial process.

The Judges Bench is a seat of power. Not only do judges have power to make binding decisions, their decisions legitimate the use of power by other officials. The Judges have the absolute and unchallengeable control of the Court domain. But they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses. It is true that the Court has the inherent power to act freely upon its own conviction on any matter coming before it for adjudication, but it is a general principle of the Highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorties whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct.”   

(2) Why is Law Lenient on the Rich and Famous in India

The following article is self explanatory:- 

Why is law lenient on the rich and famous in India?

http://timesofindia.indiatimes.com/india/Why-is-law-lenient-on-the-rich-and-famous-in-India/articleshow/43111241.cms

Dhananjay Mahapatra, TNN | Sep 22, 2014, 01.16AM IST

New Zealand's Chris Cairns arrived on the international cricket stage like a bright meteor in  over the bowler's head. Before being surpassed by Adam Gilchrist, he held the record for most number of sixes in Test cricket. Also a medium fast bowler, he was counted among the best all-rounders of the day. 

After his retirement from Tests in 2004 and from ODIs in 2006, match-fixing allegations cast a shadow on him. Recent reports said the once flamboyant cricketer has fallen on such bad times that he is forced to eke out a living by driving trucks and cleaning bus shelters. 

In India, the CBI had submitted an investigation report on match-fixing to the earlier NDA regime's sports minister S S Dhindsa. It had named top cricketers and enclosed evidence along with it. They were the flamboyant and suave faces of Indian cricket. Nothing really hampered their lives. One went on to become an MP and the other a commentator. Life didn't turn harsh for them like it did for Cairns.

Why is it that the law is so lenient to the rich, famous and glamorous in India? Why does it apply in full rigour only to the law abiding? 

This was referred to recently by a Supreme Court bench headed by Chief Justice-designate H L Dattu. The case related to top Army officers illegally selling their non-service weapons to private citizens and arms dealers. Justice Dattu wanted deterrent punishment for 71 such officers as they were all let off with a warning, censure or a meagre fine of Rs 500. 

Justice Dattu asked attorney general Mukul Rohatgi, "What does this court tell the common man who comes before us and asks - I am thrown behind bars for stealing Rs 10. And these Army officers, who are role models of discipline and tasked to protect the borders, are illegally selling weapons available only to them through ordnance factory. Whose crime is more serious?" 

The law is still more lenient if the offender is a politician endowed with the ability to mobilize villagers and farmers and disrupt normal life. Former civil aviation minister Ajit Singh is a case in point. 

Before taking a plunge into politics in 1986, Singh was a computer science professional. He has a bachelors degree in science from Lucknow University, a bachelors degree in technology from IIT Kharagpur and a masters degree from Illinois Institute of Technology. So, he is expected to know the law well. 

In the recent Lok Sabha elections, Singh lost from his pocket borough Baghpat. The law requires him to vacate the ministerial bungalow at 12, Tughlaq Road in Delhi. 

When it came to vacating the bungalow, Singh remembered his late father Chaudhury Charan Singh, who was PM from July 1979 to January 1980. He mobilized support from farmers who threatened to cut water supply to Delhi if the house where he stayed as a minister during UPA regime was not converted into a memorial for his father. 

Singh cited government bungalows being converted into memorials for Jagjivan Ram and Lal Bahadur Shastri. 

The Supreme Court in S D Bandi case had anticipated this tendency among political leaders -- cashing in on their legacy by demanding converting their once official residences into memorials for their departed relatives who held high offices. 

The court had on July 5, 2013 refused to cancel the lease agreement between the government and the memorial trusts allowing conversion of bungalows into memorials citing a new guideline on this issue. 

The NDA government's guidelines formulated in November 2000 was relied upon by the court on the suggestion of then amicus curiae Ranjit Kumar, now the solicitor general of India. 

The guidelines put a complete ban on the conversion of government bungalows into memorials for departed leaders. 

The court also suggested to the government to fix a deadline for retiring babus and defeated politicians for vacating their official accommodation. It did not spare even the judges and said, "Judges of any forum shall vacate the official residence within a period of one month from the date of superannuation/retirement." 

It gave a small concession. "However, after recording sufficient reason(s), the time may be extended by another one month." 

But in what would squarely apply to Ajit Singh, the apex court had said, "Henceforth, no memorial should be allowed in any government houses earmarked for residential accommodation." 

The examples of Chris Cairns, Indian cricketers and Ajit Singh all go to show why the rigour of law applies differently to different strata of persons in India. The more such examples we permit to be created, the more chaos that will follow.

DRT Solutions Weekly Mail – 332^nd Issue dated 19^th September ’14

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

(1) The DRTs are required to and Should be Forced to Conduct Full Trials – Application of SC Judgments

It is observed that DRTs are not conducting full trials. As per the SC in the matter of Mardia Chemicals, the SA is akin to a civil suit and therefore full trials must be conducted by the DRTs in the interest of justice.  DRTs are supposed to be the trial courts for the specialized function of banking as this function has been transferred from civil courts.

In this connection, reference is made to RBI’s Tiwari Committee Report of 1984 on whose recommendation, the DRTs were conceived and constituted. At page 77 of the said report it is specified:-

“These tribunals should be manned by persons having specialized knowledge in the functioning of banks, financial institutions and industry.”

This means that the DRT Advocates and Judges should have or should have been trained in the specialized knowledge in the functioning of banks, financial institutions and industry. This recommendation of RBI made in 1984 i.e. 30 years back has not yet been implemented. It is pathetic that such untrained persons are forcing recovery of alleged bank overdues out of the personal properties of the entrepreneurs, businessmen and industrialists,

The only solution is first to have thorough pleadings containing wrong doings of the banks and financial institutions and resultant counter-claims.Then full trials be conducted so that the facts about the said wrong doings and counter-claims are judicially established.

If the DRTs do not conduct the said trial. The following SC Judgments will be helpful:-

(a)   AIR 1967 SC 1167, Swaran Lata Ghosh vs Harendra Kumar Banerjee:- This SC judgment in para 6 outlines as to how judicial trial should be conducted in courts.

(b)   AIR 1985 SC 973, Daman Singh vs State of Punjab which lays down that the bottom courts only have to deal with all the grounds raised before them. The time of the superior courts is not to be wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment of the subordinate court was argued before that court or not.

(c)   (2008) 2 Supreme Court Cases 95, Mohd Akram Ansari vs Chief Election Officer which lays down all the points argued and pressed upon should be dealt with in the order. If any such point is left out the petitioner may submit an application to include the left out points in the order.  .

Conclusion :- Thus when perfect pleadings based on knowledge of banking, industry and finance has been made, thorough trial has been conducted in DRT as per the above Supreme Court judgments, the said wrong doings and consequent damages will be established. Any shortcoming or deviation in the trial will not bring about the real facts about the said wrong doings openly being committed by the bureaucracy of banks and financial institutions. Nothing will be achieved by appeal to DRAT as the appeal will deal with only the matters which are tried by DRT and secondly since the deposit of minimum 25% will not be possible, there would not be any opportunity for appeal. Hence there is no option but to implement the process outlined by us. We have been emphasizing this approach since 2001 through our web site and conferences.

(2) Economic Reforms with Judicial Reforms

 The following news item is self explanatory:-

17 Sep, 2014 16:42 IST

Economic Reforms With Judicial Reforms

Judicial reforms are the need of the hour to enable India to truly fulfil its constitutional commitment to secure 'justice' to its citizens, says Bharat Vasani, General Counsel, Tata Sons

http://www.businessworld.in/news/economy/economic-reforms-with-judicial-reforms/1534241/page-1.html

In the current focus on making India an attractive destination for investment, a lot of attention is being paid to economic policy. One key aspect, without which economic reforms alone will not help,is judicial reforms to ensure timely and effective delivery of justice in commercial cases. 

The World Economic Reform, Global Economic Report 2008-09: Income Categorisation (World Bank) has indicated a co-relation between a nation's prosperity and its perceptions of judicial independence and the efficiency of its legal framework. Providing a fair, transparent and efficient dispute resolution mechanism based on a clear legal framework is key to encouraging investment of capital, thereby stimulating growth and development.

The World Bank's 2014 report on doing business, which compares business regulations for domestic firms in 189 Economies, ranks India on 134th position among 189 countries with respect to ease of doing business and ranks it on 186th position with respect to enforcement of contracts. This is based on factors such as time, cost and the procedural complexity of resolving a commercial dispute. If India desires to be recognized as a destination of choice for trade and commerce, it is imperative to focus on building an effective judicial system as an integral part of the economic reform agenda. Sadly, this is receiving little or no attention from decision makers. As a result the problem has aggravated over a period of time.

Accelerated justice will free up billions of dollars blocked in litigation against projects in several parts of the country and enable it to be put to productive use. Or else, potential investors will look elsewhere for their investment. Investors want decision in reasonable time. So do millions of our countrymen who stand to gain in terms of jobs and opportunities at various levels, upstream and downstream. As per the Department of Justice (as quoted in a 2013 report of the Committee on Empowerment of Women, Lok Sabha) India has 18,000 judges at the subordinate level, which comes up to about 13 judges per million. This is against 50 judges per million in developed countries and 35-40 in some developing countries. 

As per another report, prepared by India Spend, in 2013, over 30 million cases are pending at various levels of judiciary across the country and while lower levels of judiciary have around 27 million pending cases, 21 high Courts across the country have over 4 million pending cases! In such a situation, it may be impossible to accomplish any judicial productivity. Judicial productivity in India can also be analysed by the ratio of judges to cases disposed every year. The findings in a cross-jurisdictional study, Judicial Productivity in India: By Barry Walsh(an Australian justice sector development consultant who lived and worked in Delhi during 2004 and 2005),has shown that the disposal ratio in Delhi in 2005 was 701 disposals per year, whereas the comparable figure in Australian courts was almost double at 1,511.What is even more surprising is the fact that, as per a Report of Supreme Court of India of 2012, in spite of disposal of 1.7 million cases by the Indian High Courts, there was still an increase of 1.73 per cent in the pendency of cases in 2012.

Again, while in the US, the Supreme Court disposes of 55 cases per year,in India, each of the 13 benches in the Supreme Court has hundreds of  matters coming up before it on Mondays and Fridays! The year 2011 saw 77,000 cases being instituted in the Supreme Court. The Supreme Court 2012 report indicates that nearly 20 million new cases were instituted in 2011 across India and nearly the same number was disposed of but the number of pending cases - 30 million - remained the same. Not surprising given the 25-30 per cent vacancy of seats in the High Courts and 20 per cent in the district and subordinate courts. The ratio of 10.5 judges per 10 lakh of population is too low and needs to be raised at least to 50 judges.

Apart from the above, there are several reasons for this state of affairs - lack of adequate institutional infrastructure in terms of court buildings; the lack of a case management system; the quality of our procedural laws; the lack of specialisation and handling complex commercial disputes; the abuse of Public Interest Litigation; and the system of Special Leave Petitions that results in trivial matters being brought before the apex court when these can be  handled at various levels in the State judicial set-ups. 

This will have to be accompanied by building the judicial infrastructure - hard and soft. We will need buildings, court rooms, hiring and training of judicial officers and staff and an IT infrastructure in order to increase efficiency, performance and accountability across the system. Having said that, the recommendation of the Working Group for the 12th Five Year Plan, to allocate a budget of Rs. 1670 crores for computerization of roughly 17,300 courts (i.e. approx. Rs. 9.65 lakh per court)seems inadequate given the task on hand.

Improving judicial productivity through systemic changes is very important. Nearly 70 per cent of civil cases in Australia, US and Canada are settled even before the trial begins. This is because both parties to the litigation are aware of the probable time period - 'outcome date certainty'. In India we gamble on delays and indecision so that this period is lengthened! The US has "discovery masters" to address pre-trial and post-trial matters that cannot be effectively addressed by the judge. 

This is where a case management system comes in - specifying time limits for each step of litigation, with the requisite IT support and monitoring of the case load, and encouraging alternative dispute resolution mechanisms for which judges are suitably trained. Mandatory publishing of filing dates as well as disposal dates will make the system more accountable. Litigants need to be held accountable too. Deterrent cost should be imposed on parties for adopting dilatory tactics such as seeking frequent adjournments, etc. or for filing cases which are, on the face of it, frivolous.

Finally, in a globalized economic environment, we need specialized courts to deal with commercial matters. One of the Law Commission reports noted that the US and UK courts are increasingly admitting cases which ought to have been filed before Indian courts on the ground that in India almost all cases take 25 years for disposal. This, in a time when it is "business at the speed of thought", to use the title of a Bill Gates book.

Enactment of stricter or progressive laws alone cannot catapult India into being a significant player in a globalized market. Judicial reforms are the need of the hour to enable India to truly fulfil its Constitutional commitment to secure 'justice' to its citizens and to facilitate economic growth through effective and speedy enforcement of laws and contracts. But the approach must be systemic and not - piecemeal, with due emphasis given to prioritizing and sequencing judicial reform.

We today have a government committed to economic reforms but no economic reforms can succeed unless the judicial limb is strengthened. This must be given the highest priority to ensure the desired results out of the far-ranging and impactful reforms we are all looking forward to. 
- See more at: http://www.businessworld.in/news/economy/economic-reforms-with-judicial-reforms/1534241/page-1.html#sthash.HzFMQ6WB.dpuf

DRT Solutions Weekly Mail – 331^st Issue dated 12^th September ’14

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

(1) The Incoming Chief Justice of India

The following news item is self explanatory:-

This judge in hot seat prefers personal space over making friends

http://indianexpress.com/article/india/india-others/this-judge-in-hot-seat-prefers-personal-space-over-making-friends/

Written by Utkarsh Anand | New Delhi | September 6, 2014 9:35 pm

Justice Handdyala Lakshminarayanaswamy Dattu likes his strong cup of coffee with Kannada music playing in the background. With very few friends and minimal outings, he likes his personal space as it gives him the much-needed break from the pile of case papers to read his books.

Set to become the 42nd Chief Justice of India, Justice Dattu, 63, acknowledges all eyes are already on him as he is hearing some of the most important cases in the Supreme Court. He is adjudicating upon the fate of Delhi assembly, the NDA government’s efforts to bring back black money, monitoring of Gujarat riots cases, row over Ram Setu, 2G spectrum allocation cases and most recently and controversies surrounding CBI Director Ranjit Sinha’s visitors’ logbook among others.

But when one meets Justice Dattu, he gets to hear all sorts of stories from him, except those emanating from the court rooms. Describing former Chief Justice of India S Rajendra Babu as his “guru”, Justice Dattu says he learnt the most important principle of his life from his guru — One has to be good at his profession but more importantly, he has to be a good human being.

Proud of being a part of Indian judiciary that he considers to be the best in the world, Justice Dattu, speaking to The Indian Express, says that remaining grounded and focused on his work is what he treats as the basics of his life. When people ask his daughter about her father’s job, she describes him as an “employee of the Supreme Court”.

The only judge in the apex court who very often addresses lawyers by their first names and keeps the ambience of his court room untailored, Justice Dattu has immense devotion for Lord Ganapati, for he says the god destroys the ego and enables people move on in life with simplicity.

Born in a small village, Chikkapattanagere, in Karnataka’s Chikmagalur district, Justice Dattu completed his early education in Kadur, Tarikere and Birur, before moving to Bangalore to pursue higher studies. His father H L Narayanaswamy was an English teacher. He completed his LL.B from Bangalore and started practising since 1975, handling all types of matters — civil, criminal, tax and Constitutional cases.

He appeared in Karnataka High Court as a government pleader and as a senior standing counsel for Income Tax department before being elevated as a judge of the High Court in 1995. In February 2007, Justice Dattu was elevated as the Chief Justice of the Chhattisgarh High Court and shortly afterwards shifted in the same capacity to the Kerala High Court. He was appointed as a Supreme Court judge in December 2008.

After taking over on September 28 as the Chief Justice of India, he will enjoy tenure of a little over one year before he retires on December 2, 2015.

Associated with an array of significant verdicts, Justice Dattu pronounced a landmark verdict in the 2G case when he granted bail to five corporate biggies while ruling that “bail is the rule and jail an exception”. Authoring this verdict continued…

along with Justice G S Singhvi on the bench, he said: “The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.” Similarly, upholding the freedom of press, Justice Dattu quashed an Allahabad High Court order, directing the Centre to prohibit media from reporting on the controversial troop movements near the national capital on a day the then Army chief Gen V K Singh had moved court on his date-of-birth row in 2012. Justice Dattu also headed the bench, which told Gujarat police that no innocent person should be branded a terrorist and put behind bars simply because he belongs to a minority community. Acquitting 11 persons charged under terror laws, the bench had said: Police must ensure that no innocent person has the feeling of sufferance only because “my name is Khan, but I am not a terrorist”. Justice Dattu was on the bench that expanded the Indian jurisprudence on death sentence cases as the court commuted the death penalty of terror convict Devinder Pal Singh Bhullar to life term over mental illness and an inordinate delay by the government in deciding his mercy plea. Left in cold storage for quite some time, the black money case hit the headlines again as Justice Dattu started hearing it. Rejecting the UPA government’s plea, he ordered immediate constitution of the special investigation team (SIT), ordered by the court way back in 2011. The SIT is now functional and has submitted its first report in court. He was on the Constitution bench that declared as “unconstitutional” a law enacted by Kerala to restrict water level in the Mullaperiyar dam to 136 feet, while protecting the legal right of Tamil Nadu. Justice Dattu also heads the bench hearing the CBI’s appeal against dropping of conspiracy charges against top BJP leaders in the Babri Masjid demolition case. He also headed the bench that junked a review petition against a previous SC verdict, holding that gay sex was a criminal act. A curative petition is pending against this order. - See more at: http://indianexpress.com/article/india/india-others/this-judge-in-hot-seat-prefers-personal-space-over-making-friends/2/#sthash.osMG7cna.dpuf

(2) An Useful Judgment of Supreme Court of India – Sale Cancelled being Illegal – Costs of Rs 1 Lac to be Recovered from Officers of Orissa State Financial Corporation

Supreme Court of India

IN THE SUPREME COURT OF INDIA

Subhransu Sekhar Padhi vs Gunamani Swain & Ors on 21 August, 2014

Author: Chelameswar

Bench: J. Chelameswar, A.K. Sikri

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7936 OF 2014

(Arising out of SLP(C) No. 12961 of 2011)

Subhransu Sekhar Padhi -  Appellant

Versus

Gunamani Swain & Others -  Respondents

J U D G M E N T

Chelameswar, J.

1. Leave granted.

2. Aggrieved by the judgment dated 6.12.2010 of the High Court of Orissa in Writ Petition (C) No. 13033 of 2009, one of the respondents therein who is the purchaser of the property in an auction held under Section 29 of the State Financial Corporations Act, 1951 (for short “the Act”) preferred the instant appeal. Some time in the financial year 2002-2003, the 9th respondent i.e. the Orissa State Finance Corporation (hereinafter referred to as “OSFC”) sanctioned a term loan of Rs. 5,26,500/- for purchase of a TATA truck in favour of the 6th respondent who is wife of the 7th respondent. The said loan transaction is secured by a mortgage of certain piece of land by the father-in-law of the 6th respondent and father of the 7th respondent (since died).

3. As the borrower did not make the repayments in terms of the agreement between OSFC and the borrower, the OSFC attempted to seize the truck which was also hypothecated to the OSFC. As the same was not traceable, the OSFC proceeded against the mortgaged property. The value of the said property was estimated at about Rs. 10,08,000/-. Eventually, the property was brought to sale by auction on 9.2.2009 where the appellant became the highest bidder for an amount of Rs.10,09,000/-. The OSFC confirmed the sale in favour of the appellant. On 31.3.2009, possession of the mortgaged property was handed over to the appellant.

4. On 10.6.2009, the OSFC after appropriating the amounts due to it intimated the three sons of the mortgagor (respondent Nos. 2, 7 and 8 herein) to collect the residue amount of Rs.2,86,460/- from the Corporation.

5. Challenging the seizure and sale of the mortgage property, the writ petition came to be filed by the wife and children of the mortgagor. The appellant herein and OSFC contested the writ petition. By the impugned judgment herein, the writ petition was allowed, hence the appeal.

6. Two questions arise for our consideration;

Whether the OSFC was legally entitled to invoke Section 29 of the Act and bring the properties of guarantors to sale without resorting to the procedure contemplated under Section 31 of the Act.

Whether the High Court was right in entertaining a challenge to the sale from 150 days after the sale took place and the property was handed over to the auction purchaser (appellant herein)

7. In the impugned judgment, the High Court answered the first question emphatically against the OSFC.

“The right of financial Corporation in terms of Section 29 must be exercised only on a defaulting party. Section 29 does not empower the Corporation to proceed against the surety even if some properties are mortgaged or hypothecated to it. Our view is further strengthened by the provisions of sub-section(4) of Section 29 which lays down appropriation of sale proceeds with reference to only industrial concern and not surety or guarantor.”

xxx xxx xxx xxx

In view of the above, we are of the considered view that the OSFC in exercise of power vested under Section 29 of the SFC Act cannot sell out the properties mortgaged to it by the guarantors.

As a consequence of such conclusion, the second question is also answered against the OSFC.

“14. In view of the above, sale of the properties of the guarantors and subsequent execution of deed of transfer under Annexure-5 are liable to be quashed for being done in flagrant violation of the statutory provision contained in Section 31 of the SFC Act which we direct accordingly.”

8. The High Court rested its judgment rightly on a decision of this Court reported in Karnataka State Financial Corporation v. N. Narasimahaiah& Others, (2008) 5 SCC 176. In that case, this Court categorically held[1] that it is only the properties of the defaulter which can be proceeded against under Section 29 of the Act but not against the properties of the third parties whether they are guarantors, mortgagors etc.

9. A submission is sought to be made that the impugned judgment is contrary to the ratio of the decision of this Court in A.P. State Financial Corporation v. M/s. GAR Re-rolling Mills & Another, (1994) 2 SCC 647. In our opinion, the said decision has no application to the facts of the present case. It was a case where the APSFC initially proceeded against Section 31 of the Act against the properties mortgaged by the borrower (industrial concern) and obtained an order/decree but subsequently invoked the powers under Section 29. The question before this Court was “ whether the Financial Corporation set up under Section 3 of the State Financial Corporation Act is entitled to take recourse to the remedy available to it under Section 29 of the Act even after having obtained an order or a decree after invoking the provisions of Section 31 of the Act but without executing that decree/order? This Court held[2] that it is always open to the State Financial Corporation to resort to such a course of action.

10. Therefore, we do not see any merit in the appeal.

11. However, the appellant before us is the purchaser of the property sold under Section 29 of the Act, who parted with the money in order to purchase the property. He is a victim of an illegal procedure adopted by the Orissa State Financial Corporation. The law regarding the authority of the State Financial Corporations to invoke the provisions of Section 29 with respect to properties other than those belonging to defaulter industrial concern is clearly declared by this Court in Karnataka State Financial Corporation (supra) by its judgment dated 30th March, 2008 whereas the sale in question before us is dated 9th February, 2009, almost a year later. The authorities of the 9th respondent Corporation sold the properties to the appellant herein in flagrant violation of the settled position of law. We, therefore, direct the 9th respondent to refund the amount of Rs.10,09,000/- (rupees ten lakhs nine thousands) to the appellant with interest calculated at the rate 12% per annum. However, it is open to the Orissa State Financial Corporation to recover the amounts either from the defaulter - industrial concern or from such other third party against whom the Corporation has a legal right to proceed.

12. Appeal is dismissed. Costs quantified at Rs.1,00,000/- (rupees one lakh) to be borne by the 9th respondent Corporation. It is open to the 9th respondent Corporation to recover the said amount from such of those officers who are responsible for taking a wrong decision to proceed against the property in question under Section 29 of the Act.

13. All the payments, as directed above, shall be made within a period of 30 days from today.

 (J. Chelameswar)

 (A.K. Sikri)

New Delhi;

August 21, 2014