Weekly Mails
are DRT Legal Guide and gold mine of practical information for the
borrowers and guarantors – The mail recipient
particularly Borrowers and Guarantors will be immensely benefited by our weekly mails
and DVDs, all previous issues of weekly mails
from 1st one till the last one may be viewed by clicking the links given
at the top. Separate web pages have been created to contain these mails
in batches of 10 so that pages open up fast. These mails are gold mine
of information on current topics giving lot of practical suggestions and
comments. Any new recipient to these mails must go through all the weekly mails
right from the issue no
1 to the latest. If possible please spread the reference of our web site
and the weekly mail among
the persons, borrowers and guarantors who are the bank victims. If
anyone desires to get these mails regularly, he may write to us for
inclusion of his e-mail ID
in the regular mailing list.
The weekly mail is
issued on every Friday. The particular issue of
the weekly mail is
first published on the web site and then mailed to borrowers, guarantors
and their advocates in the country. This service is free in the best
interest of society in general and litigant borrowers and guarantors in
particular. We are getting huge no of mails appreciating our weekly mails.
We welcome suggestions.
DRT Solutions Weekly Mail –
379th Issue dated
14th August ’15
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 91-100 101-110 111-120 121-130 131-140 141-150 151-160 161-170 171-180 181-190 191-200 201-210 211-220 221-230 231-240 241-250251-260 261-270 271-280 281-290 291-300 301-310 311-320 321-330 331-340 341-350 351-360 361-Latest
(1) Not Enough Manpower, CBI to SC
The
following news article is self explanatory:-
Not enough manpower to
probe scam bigger than Vyapam: CBI to SC
http://indianexpress.com/article/india/india-others/not-enough-manpower-to-probe-scam-bigger-than-vyapam-cbi-to-sc/
The Madhya Pradesh Admissions and Fee Regulatory Committee had fined six
private medical colleges Rs 13 crore for filling about 721 such seats
between 2010 and 2013.
Expressing inability to investigate another scam linked to Vyapam, the
CBI has told the Supreme Court that while this scam is bigger in “scope
and depth”, the bureau has no manpower to probe it.
Responding to a petition by Vyapam whistleblower Anand Rai in the court,
the CBI said, “In its scope and depth, the DMAT (Madhya Pradesh Dental
Medical Admission Test) scam appears to be many times more than the
Vyapam scam… It is humbly submitted that the CBI is finding it extremely
hard and almost impossible to cope with the extent of cases already
being investigated…due to scarcity of resources, particularly human
resource.”
The CBI said investigations were normally conducted by officers ranging
from the rank of inspector to additional SP, “whose total sanctioned
strength is 1,264 only”.
Of the sanctioned strength, the CBI said 348 posts — 23 additional SP,
42 deputy SP and 283 inspectors — were currently vacant.
The court had sought the agency’s response to the petitioner’s plea that
irregularities in alleged DMAT scam be investigated by the CBI since it
was related to Vyapam and was bigger in scope. The petitioners, Rai and
Ashish Chaturvedi, had requested the court to hand over the
investigation to the CBI since the Special Task Force in Madhya Pradesh
had refused to probe it.
Admitting that the scam appeared bigger, the CBI requested the court not
to accede to Rai’s plea since there was “no allegation of corruption
against public servants in the DMAT scam, (therefore) these cases should
ideally not be entrusted to the CBI in the given circumstances.”
“Apart from the Vyapam cases, the CBI is already investigating more than
1,000 cases related to the chit fund scam in several states… besides its
own normal targeted 846 cases (which results in the probes becoming)
unmanageable and almost impossible to handle…with the existing workforce
of the CBI,” the agency stated in its reply, filed by Superintendent of
Police Pradip Kumar.
Talking about the alleged DMAT scam, Rai claimed, “The scorers or
solvers of the Vyapam scam, who used to appear for students, also had a
deal with private medical colleges where they would get admitted against
management quota seats and later surrender them for money. These seats
would then be allotted to elite students, including children of several
bureaucrats and politicians.”
The Madhya Pradesh Admissions and Fee Regulatory Committee had fined six
private medical colleges Rs 13 crore for filling about 721 such seats
between 2010 and 2013.
The petition will be heard next on August 14.
(2) Govt Amending Procedures to Check Unnecessary Litigations
The
following news article is self explanatory:-
Government Mulls Amending Procedures to Check 'Unnecessary' Litigations
Published: 02nd August 2015 12:09 PM
Last Updated: 02nd August 2015 12:09 PM
http://www.newindianexpress.com/nation/Government-Mulls-Amending-Procedures-to-Check-Unnecessary-Litigations/2015/08/02/article2953623.ece
NEW DELHI: With three crore cases pending in courts, the government may
consider changes in legal procedure to make it mandatory for a litigant
to issue a notice to the opposite party before initiating formal
proceedings to enable them explore the possibility of a pre-litigation
settlement.
According to a Law Ministry document, this would help curtail
"unnecessary litigation" as people would then approach courts to settle
civil contractual disputes as a last resort. The Department of Legal
Affairs and Legislative Department in the Law Ministry "may explore" the
possibility of bringing changes in procedural laws to introduce a
requirement of mandatory notice to the opposite party before initiation
of legal proceedings, sources said.
"This will help in curtailing unnecessary litigation as many parties may
choose to settle the cases even prior to the initiation of formal legal
proceedings," a Ministry document states. According to the note, very
often parties may be able to
resolve the contractual differences between them through direct
negotiations, without resorting to any formal or informal dispute
resolution mechanisms. It referred to an April, 2009 Law Commission
report which made a "pertinent recommendation in this regard in its
221st report on the 'Need for Speedy Trial -- some suggestions'."
The law panel had referred to Section 80 of the Code of Civil Procedure
(CPC) which requires that a litigant who proposes to initiate legal
proceedings against the State or a public officer must give two months
advance written notice to the concerned party and suggested that a
similar provision should be introduced for all categories of civil
cases. "A provision of this nature is already seen in Section 138 of the
Negotiable Instruments Act, 1881, which provides that a claim for
dishonour of cheque can only arise after the claimant has issued prior
written notice to the drawer of the cheque and the drawer has failed to
make the payment of the relevant amount within 15 days of the receipt of
the notice," it said.
The document, prepared for a recent meeting chaired by Law Minister D V
Sadananda Gowda of the Advisory Council of the National Mission for
Justice Delivery and Legal Reforms, states that "adopting such a
provision with respect of all civil cases will help in curtailing
unnecessary litigation as many parties may choose to settle the cases
even prior to the initiation of formal legal proceedings.
"A provision of this nature would, however, need to be subject to an
exception for urgent matters where the court can dispense with the
notice after hearing reasons for the urgency." Legal dictionaries define
civil litigation as a legal dispute between two or more parties that
seek monetary damages or specific performance rather than criminal
sanctions.
"The Department of Legal Affairs and Legislative Department may explore
the possibility of introducing legislative changes to introduce a
requirement of mandatory notice to the opposite party before initiation
of legal proceedings," the agenda note said. The judiciary, including
the Supreme Court and various subordinate courts, disposed of over 2
crore cases last year, and another 3 crore are still pending with them,
Rajya Sabha was informed by the Law Minister on Friday.
Gowda said while the apex court settled 92,722 cases in 2014, the 24
High Courts disposed of 17,34,542 cases in the last calendar year. The
subordinate courts settled 1,90,19658 cases in 2014, he said in a
written reply. But at the same time, 62,791 cases were pending in the
Supreme Court in 2014. Similarly, 41,53,957 cases were pending in the
various High Courts. In the subordinate courts, 264,88,405 were pending
in 2014.
He blamed vacancies of judicial officers/judges in various courts as
"one of the main factors affecting timely disposal of cases."
-----------------------------------------------------------------------------------------------------------------------------
DRT Solutions Weekly Mail – 378th Issue
dated 7th August
’15
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 91-100 101-110 111-120 121-130 131-140 141-150 151-160 161-170 171-180 181-190 191-200 201-210 211-220 221-230 231-240 241-250251-260 261-270 271-280 281-290 291-300 301-310 311-320 321-330 331-340 341-350 351-360 361-Latest
(1) Backlogs in DRTs
The
following news article is self explanatory:-
Backlogs weigh down tribunals as settlements take years to conclude
http://indianexpress.com/article/india/india-others/backlogs-weigh-down-tribunals-as-settlements-take-years-to-conclude/
Last week the finance ministry had shortlisted one of its senior
officers to join as a member in the Securities Appellate Tribunal (SAT).
The highly unusual move is a pointer to the discomfort within the
government of the goings on in the various tribunals especially in the
financial sector. Each of the tribunals have either run up a huge
backlog of cases because of which settlement takes more than five to six
years, or have been questioned about the quality of orders with one case
inviting a Central Bureau of Investigation (CBI) probe.
Several of them are running without the full complement of members,
judicial and technical. These include other than SAT, the six benches of
Customs and Central Excise Appellate Tribunal and the 36 Debt Recovery
Tribunals (DRTs). The massive backlog of cases has huge revenue
implications for the ministry. In July the CBI had asked the Centre for
the papers related to the DLF case. The case was filed by DLF in the
tribunal appealing against a three-year ban imposed on the real estate
firm by Sebi in an order issued in October 2014. The order was reversed
by the tribunal through a 2-1 majority in March this year. The
dissenting note surprisingly came from the presiding officer of the
tribunal, Justice JP Devadhar. While Sebi has made an appeal against the
order to the Supreme Court, the government is keen to ensure that the
tribunals are able to pass orders that stand the test of law in the
higher courts.
In the CESTAT the number of pending cases as per finance ministry data
is 97,672 as on May 31, 2015. The total revenue implication of these
cases is Rs 1,31,380 crore or a fifth of the total indirect tax receipts
for 2015-16. Ironically, the CESTATs were set up to cut down pendency of
revenue-related court cases. Finance ministry data shows that there are
just 18,624 cases pending in the regular courts including the Supreme
Court or just a fifth of the numbers pending in CESTAT. The tax
implication of those cases is Rs 31,968 crore. Another report shows that
the rate of disposal of cases in 2014 was 13,612. This means the average
delay in getting a case cleared in CESTAT is about five years.
There is an equally huge delay in the DRTs and their appellate bodies—
the debt recovery appellate tribunals. A Cabinet note to set up six more
of them in December 2014 had noted that the number of pending cases in
these tribunals has crossed 50,000. The latest data on the amount
pending through these cases is Rs 14,38,725 crore as on March 31, 2013,
or close to 3 per cent of the total investments made by the banking
sector. All these have a bearing on the health of the financial sector.
Shankh Sengputa, partner at Trilegal, a corporate law firm, says that
considering the case load, some delay in judgments is expected,
“although, the delays are also on account of litigants deliberately
prolonging the proceedings”. Abhishek Jain, partner at EY agreed that
the “majority time of the benches is spent on deciding stay
applications”. According to him, the pile up is typically because of
frequent adjournments by litigants and department representatives,
delays in submission of documents and the frequent transfers of the
judges. Sengupta says, “There is a shortage of judicial members in
CESTAT as their appointments have not happened in time. While there was
a proposal to create additional benches in other states, there has been
no development with respect to such proposal.”
For instance two years ago the government cleared a proposal for a new
bench of CESTAT in Allahabad among six such benches in several cities.
The case ran up to a division bench of the Allahabad High Court which
had to issue directions to the Central government to make the bench
operational by July this year. Another reason for the rise in pendency
is because of the circular line of awards. Parties approach the
tribunals and at times anticipating an adverse order, obtain a stay from
a higher court. Finance ministry data shows that at the end of May 2015,
total stays granted by CESTAT was 4,647. The month had begun with a
backlog of 4,902.
A finance ministry rule states that a member can serve in a tribunal
only if she/ he has not practiced before the same forum. While the SAT,
as of now, has no commensurate backlog, the interest taken by CBI in the
DLF case shows how judgments leave room for interpretation. Jain of EY
said the benches could fix a timeline for cases “with negative
implications in case of breach and limiting the number of adjournments
to ensure no artificial delays are caused”.
One of the options is to prioritise cases based on the gravity of issues
involved. But this requires deeper understanding of pertinent issues.
Rahul Mitra, national head for litigation and dispute resolution for
transfer pricing and direct taxes at KPMG, India agrees. “For
specialised matters, like transfer pricing, being concerned with
economics, rather than interpretation of law, the government may
consider appointing subject matter specialists as tribunal members or at
least as expert witnesses/ amicus curie, for optimal and expeditious
disposal of cases”.
The implications are huge. While the time lines for cases pending in DRT
are relatively recent, since they came up later, in the CESTAT there are
cases pending for nearly three decades. There are 413 cases pending in
these forums from before the year 2000. The oldest case dates back to
1988 in Delhi CESTAT.
The delays are defeating the very reasons why these tribunals were set
up-fast-track courts. Sengupta of Trilegal suggests imposing costs or
taking strict action against parties who “attempt to delay the matters
by filing frivolous applications and seeking unnecessary adjournments”.
The government has already moved some distance on this. Finance
minister Arun
Jaitley has made it mandatory for litigants to deposit a
percentage of the tax dues with the government as the precondition for
appearing before the CESTAT. Some innovative measures are required for
dragging cases in DRT too.
(2) Execution Records in India
The
following news article is self explanatory:-
Most of India’s Execution Records Have Been ‘Lost or Destroyed by
Termites’
http://time.com/3981848/india-execution-records-destroyed-termites/
There is a significant dearth of official information concerning Indian
death penalty cases, according to a New Delhi university legal
researcher who is now struggling to complete the first comprehensive
study on capital punishment in the country.
Anup Surendranath, the professor at the Indian capital’s National Law
University spearheading the research project, said that prisons across
India responded to record requests by claiming many documents had been
“lost or destroyed by termites.” Among the missing files are the 2001
mercy pleas of four men convicted in the 1992 Bara Massacre, a mass
murder carried out by Maoist insurgents in the Eastern Indian state of
Bihar.
Though records confirm that capital punishment has a prominent position
in India’s judiciary history — at least 1,400 executions occurred
between 1953 and 1963 alone — the country’s prisons could only provide
data on 765 cases between Indian independence in 1947 and the present
day.
“There’s a complete lack of information — they don’t even have the names
of the prisoners, let alone the official files,” Surendranath told TIME.
“It just shows the callousness of the record-keeping system in the
jails.”
The task of documenting the activity of the country’s gallows is left to
the individual prisons, he said, with “no central authority correlating
this [information].”
The absence of relevant data has limited the National Law University’s
study to ongoing capital cases — those where the prisoner continues to
wait on death row. Execution is an increasingly rare sentence in
contemporary India, with only four prisoners hanged in the country since
2000. One of which came just last week, when the country’s Supreme Court
finallymoved
to hang Yakub Memon, the “driving spirit” behind the 1993
terrorist bombings in Mumbai, the deadliest in the country’s history.
The execution, carried out on Memon’s 53rd birthday, followed a
drawn-out legal debate.
Surendranath, who resigned on Friday from his position as the Supreme
Court’s Deputy Registrar of Research, has been an outspoken critic of
the death penalty in India, actively speaking out against Memon’s
planned execution. Though he declined to comment to TIME on his
resignation, he posted on Facebook that he stepped down to “focus on
death penalty work at the University.”
“It is in many ways liberating to to regain the freedom to write
whatever I want and I hope to make full use of that in the next few days
to discuss the events that transpired at the Supreme Court this week,”
he wrote. The post came a day after one that declared the rulings to
execute Memon as “instances of judicial abdication that must count
amongst the darkest hours for the Supreme Court of India.”
He told TIME that his research team would release its official report on
Indian capital punishment later this month.
Weekly Mails
are DRT Legal Guide and gold mine of practical information for the
borrowers and guarantors – The mail recipient
particularly Borrowers and Guarantors will be immensely benefited by our weekly mails
and DVDs, all previous issues of weekly mails
from 1st one till the last one may be viewed by clicking the links given
at the top. Separate web pages have been created to contain these mails
in batches of 10 so that pages open up fast. These mails are gold mine
of information on current topics giving lot of practical suggestions and
comments. Any new recipient to these mails must go through all the weekly mails
right from the issue no 1 to the latest. If possible please spread the
reference of our web site and the weekly mail among
the persons, borrowers and guarantors who are the bank victims. If
anyone desires to get these mails regularly, he may write to us for
inclusion of his e-mail ID
in the regular mailing list.
The weekly mail is
issued on every Friday. The particular issue of the weekly mail is
first published on the web site and then mailed to borrowers, guarantors
and their advocates in the country. This service is free in the best
interest of society in general and litigant borrowers and guarantors in
particular. We are getting huge no of mails appreciating our weekly mails.
We welcome suggestions.
DRT Solutions Weekly Mail – 377th Issue dated
31st July ’15
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 91-100 101-110 111-120 121-130 131-140 141-150 151-160 161-170 171-180 181-190 191-200 201-210 211-220 221-230 231-240 241-250251-260 261-270 271-280 281-290 291-300 301-310 311-320 321-330 331-340 341-350 351-360 361-Latest
(1) Cheque Bounce Cases – New Bill in Lok Sabha
The
following news article is self explanatory:-
Bill to effectively deal with cheque bounce
cases back in Lok Sabha
The Bill seeks to overturn a Supreme Court ruling which said the case
has to be initiated where the cheque-issuing branch was located.
New Delhi | Published:July
27, 2015 4:37 pm
http://indianexpress.com/article/india/india-others/bill-to-effectively-deal-with-cheque-bounce-cases-back-in-lok-sabha/
A bill, providing for trial in cheque bounce cases at the place where
the cheque was presented for clearance and not the place of issue,
was re-introduced in the Lok Sabha on Monday, with an aim of helping
lakhs of people suffering due to jurisdictional issues.
The Negotiable Instruments (Amendment) Bill, 2015, introduced by Finance
Minister Arun Jaitley, seeks to replace an ordinance, which was
promulgated last month. The ordinance was promulgated as the bill, which
was passed by the Lok Sabha, could not be approved by the Rajya Sabha
during the Budget session. The amendments will enable filing of cheque
bounce cases in the place where the cheque was presented for clearance
or payment and not the place of issue.
The Bill seeks to overturn a Supreme Court ruling which said the case
has to be initiated where the cheque-issuing branch was located. There
are an estimated 18 lakh people facing cheque bounce cases across the
country. The amendment provides that cases of bouncing of cheques can be
filed only in a court in whose jurisdiction the bank branch of the payee
(person who receives the cheque) lies. If a complaint against a person
issuing a cheque has been filed in the court with the appropriate
jurisdiction, then all subsequent complaints against that person will be
filed in the same court, irrespective of the relevant jurisdiction area.
The Statement of Objects of the bill stated that following the apex
court ruling, representations have been made by various stakeholders,
including industry associations and financial institutions, expressing
concern about the wide impact the judgement would have on the business
interests as it will offer undue protection to defaulters at the expense
of the aggrieved complainant.
(2) Indian Courts and PIL
The
following news article is self explanatory:-
Even without a law against 'vexatious
litigation', Indian courts often give PILs a hard time
Madhya
Pradesh wants to pass a law to prevent people from filing unreasonable
and frivolous legal cases. But courts already use those terms to thwart
many genuine petitions, say lawyers.
Aarefa Johari ·
Jul 27, 2015 · 06:30 pm
http://scroll.in/article/744077/even-without-a-law-against-vexatious-litigation-indian-courts-often-give-pils-a-hard-time
Ten years after the Law Commission of India proposed a bill against
“vexatious litigations” in Indian courts, the state of Madhya Pradesh
has taken up the cause. On July 22, the state’s legislative assembly passed the
Madhya Pradesh Vexatious Litigation (Prevention) Bill to stop citizens
from filing legal cases “without reasonable ground”.
If the bill eventually
becomes an act, the state’s advocate general will have the power to
submit a High Court application against any person he claims has been
habitually filing civil or criminal cases without any reasonable ground.
If the court finds merit in the advocate general’s application, it can
declare the person to be a “vexatious litigant” (or a “tang
karne wala mukadmebaaz”
in Hindi).
A vexatious litigant’s
ongoing pleas would then be dismissed from the court and the litigant
will not be allowed to file any other civil or criminal cases in the
High Court or the lower courts without prior permission.
Laws against vexatious
litigation already exist in two states – Maharashtra (since 1971) and
Tamil Nadu (since 1949, when it was still the State of Madras). In 2005,
the Law Commission had proposed a similar legislation for the whole
country, its argument rooted in the idea that a court’s time should not
be taken up by those who persistently litigate without a justifiable
cause.
But a law that allows for
such long-term restrictions on litigants could easily be used to thwart
public interest litigations and other petitions that the state may find
uncomfortable, say lawyers and activists.
“In the past few years,
there has been a larger push by government bodies to clamp down on
litigations against corporate interests,” said Arjun Sheoran, a
Chandigarh-based lawyer and activist. Any law targeting “vexatious
litigants” – in Madhya Pradesh or anywhere else in the country – would
be a new setback.
The Heavy Cost of PILs
India’s high courts and the
Supreme Court already have certain basic safeguards against petitions
that have no reasonable grounds.
The Code of Civil
Procedure, for instance, has a rule that allows courts to strike out a
civil plea that may be “unnecessary, scandalous, frivolous or
vexatious”, or that may be an “abuse of the process of the court”. If a
criminal litigation is filed before a magistrate without a “reasonable
cause”, Section 250 of the Code of Criminal Procedure allows the
magistrate to order the complainant to pay a monetary compensation to
the accused.
In 2010, the
Maintainability of Public Interest Litigation Rules were introduced to
govern public interest writ petitions. Under these rules, petitioners
must first disclose their credentials and motives to the court’s
Registry, which decides if the PIL can be entertained. In court, judges
can ask petitioners to deposit an “appropriate” amount to the Registry
to be paid as “compensation” to the respondents in case the PIL is found
to be “vexatious, frivolous or mala fide”.
“The official litigation
fee is usually around Rs 2,000, but the Bombay High Court at times asks
litigants to put in as much as Rs 50,000 as potential compensation
because the plea is wasting the court’s time,” said Dayanand Stalin, a
Mumbai-based environment activist who frequently files litigations
against environment violations in Maharashtra.
Thwarting Genuine Petitions
Stalin’s own pleas have
never been declared frivolous, but some lawyers claim it is a term often
used by courts while fining civil, criminal or public interest
petitions.
“I have seen additional
costs being imposed on a lot of cases that are declared as frivolous or
as not having any yuktiyukt
aadhar (reasonable
ground),” said Sudiep Shrivastava, a lawyer based in Bilaspur,
Chhattisgarh.
The Law Commission’s 2005 report on
vexatious litigation pointed out that even though there has been a
constant demand from courts to dissuade frivolous petitions by
increasing the court fee, a higher fee would not really work as an
effective solution – on the contrary, it could also end up dissuading
genuine litigations.
Sheoran believes this is,
in fact, quite true: by imposing heavy costs, courts do end up thwarting
several genuine petitions. Other kinds of misuse, he says, are also
prevalent.
“In the Punjab and Haryana
High Court, there were litigants who raised questions about judicial
appointments and they were literally barred from filing any litigation
in court,” said Sheoran. “From what I have seen, courts do not want to
take up topics which have larger political ramifications.”
Restricting Access to Justice
When courts already have
inherent discretionary powers to stay or dismiss petitions on various
grounds, Sheoran and other activists believe it would be bad news for
state governments – through the advocate general – to have the added
power to hound litigants for allegedly being “vexatious”.
The 2005 Law Commission
report claimed that a national law to prevent vexatious litigation is
important for “public good” because such a law would impose restrictions
on a “vexatious” person’s “access to justice”.
This is presented in the
report as a virtue, but in Vyapam-hit Madhya Pradesh where the bill is
on its way to actually becoming a law, activists cannot help noting the
irony.
Worded almost exactly like
the existing law in
Maharashtra, Madhya Pradesh’s bill states that a litigant accused of
being vexatious would be summoned and allowed one opportunity to present
his case before the High Court comes to its decision. “But what if the
person doesn’t receive the summons and is not able to attend that one
hearing?” said Shrivastava, pointing out that the duty of issuing
summons lies with the state machinery, of which the advocate general is
a part.
“Besides, the bill does not
allow the litigant to appeal against the ‘vexatious’ label in the High
Court or the lower courts,” said Shrivastava. “And how many people can
afford to appeal in the Supreme Court?”
The most restrictive aspect
of the proposed law, adds Sheoran, is that it precludes the possibility
of any genuine litigations by the same petitioner in the future.
“Meanwhile, is the government itself covered in the bill?” he said,
pointing to the fact that the India’s state and central governments are
collectively the largest
litigant in the
courts today.
Dr Anand Rai, a
Bhopal-based Right to Information activist and one of the whistleblowers
in the Vyapam scam, calls the vexatious litigation bill
“unconstitutional”.
“I agree that a lot of
people file petitions in court without doing the hard work or research
that add credibility to their pleas, but such a law would be completely
wrong in a democracy,” said Rai.
-----------------------------------------------------------------------------------------------------------------------------
DRT Solutions Weekly Mail – 376th Issue
dated 24th July
’15
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 91-100 101-110 111-120 121-130 131-140 141-150 151-160 161-170 171-180 181-190 191-200 201-210 211-220 221-230 231-240 241-250251-260 261-270 271-280 281-290 291-300 301-310 311-320 321-330 331-340 341-350 351-360 361-Latest
(1) Tribunals take the Cut as Govt Slims the Bar
The
following news article is self explanatory:-
Tribunals Take the Cut as Government Slims the Bar
By Kanu Sarda
Published: 19th Jul 2015 06:57:51 AM
http://www.newindianexpress.com/thesundaystandard/Tribunals-Take-the-Cut-as-Government-Slims-the-Bar/2015/07/19/article2927722.ece
NEW DELHI: To increase the efficiency of the tribunals functioning in
the country, the Ministry of Law and Justice has decided to reduce the
present number of tribunals. The ministry has initiated the process of
pruning the number from 35 to just nine as many of them are performing
identical functions.
The law ministry was of the view that there is a possibility that some
of the tribunals can be merged to avoid the overlapping functions being
discharged by them. There are over 35 tribunals functioning across India
dealing with subjects such as income tax, electricity, consumer
protection, company laws and railway accidents.
The move is in tune with Prime Minister Narendra Modi’s policy of doing
away with laws and procedures which create confusion and obstruct smooth
governance. “We have constituted a committee to oversee if the proposed
cutting down of tribunals is in sync with the present working of
tribunals,” said a senior law ministry official.
Officials said that an early assessment by the law ministry shows that
almost half of the existing tribunals and appellate bodies can be
brought under the convergence plan. This will help the ministry
concerned to save money and utilise human resources more efficiently.
“On an average, each bench in a tribunal or appellate body needs a staff
of 12 people, and many of these bodies can be clubbed and brought under
a common administrative umbrella,” the official added.
According to sources, Competition Appellate Tribunal could be converged
with the Airports Economic Regulatory Authority Appellate Tribunal,
since the latter has few appeals before it. Tribunals handling
inter-state river water disputes could be brought under the National
Water Tribunal.
The Department of Legal Affairs had written to all Union ministries and
departments to furnish details of tribunals functioning under their
administrative control and explain the possibility of merging the
functions of tribunals with some other tribunals.
Another reason why the law ministry was forced to cut down the tribunals
is that many of them had to adjudicate cases where its own ministry was
controlling them. The Debt Recovery Tribunal and the Debt Recovery
Appellate Tribunal function under the Ministry of Finance, the Armed
Forces Tribunal functions under the Ministry of Defence while the
Telecom Disputes Settlement and Appellate Tribunal functions under the
Ministry of Communications and Information Technology. These ministries
not only control tribunals but are also responsible for things such as
infrastructure, finance, salaries and staff along with the rule-making
power
A few years ago, the law ministry had sought administrative control over
all tribunals functioning citing a 1997 Supreme Court order that said,
“We are of the view that, until a wholly independent agency for the
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.” But amid protests by various ministries, the
proposal failed to take off.
(2) Fair Trial of Cheque Bounce Cases
The
following news article is self explanatory:-
India:
Fair Trial Of Cheque Bounce Cases In The Light Of The Amendment
Last Updated: 17 July 2015
http://www.mondaq.com/india/x/413234/Financial+Services/Fair+Trial+Of+Cheque+Bounce+Cases+In+The+Light+Of+The+Amendment
INTRODUCTION:
The section 138 of the Negotiable Instruments Act, 1881, deals with the
offence pertaining to dishonor of Cheque for insufficiency, etc, of
funds in the drawers account on which the cheque is drawn for the
purpose of discharge of any legally enforceable debt or other liability.
This section prescribes for penalties in case of dishonor of Cheques.
The object of the Act is to encourage the usage of cheque and enhance
the credibility of the instrument so that the flow of normal business
transactions and settlement of liabilities remain unobstructed.1
The parliament of India had given its approval on 13.6.2015 for the
proposal to promulgate the Negotiable Instruments (amendment) Ordinance,
2015; and the President of India has promulgated the same. The said
amendments are sought to be brought in the Act vide this amendment Bill,
because of Court Order stating that – "cases against those having
defaulted on their Cheque payments could only be filed in Courts under
which jurisdiction the bank Account of the accused fell." Therefore the
Finance Minister Mr. Arun Jaitley said while introducing the Bill that
"to address the difficulties faced by the payee or the lender of the
money in filing the case under section 138 of NI Act, because of which a
large number of cases are stuck, the jurisdiction for offence has been
clearly defined keeping in view the interest of complainants".
There are five separate actions that lead to Cheque Bouncing Case. These
are: (1) Drawing of the Cheque, (2) Presentation of the Cheque to the
bank, (3) Returning of the Cheque unpaid by the drawee bank, (4) Giving
notice in writing to the drawer of the Cheque demanding payment of the
amount within 30 days of the dishonoring of the Cheque, and (5) Failure
of the drawer to make payment within 15 days of the receipt of the
notice.2
After the Bill is passed the Cheque Bouncing Cases can only be filed in
a court under whose jurisdiction the Bank Branch of the payee where the
Cheque is presented, falls. While approving the amendment, the
government had said it is aimed at fast tracking the resolution of
Cheque bounce cases while removing ambiguities' on jurisdictional
issues.
DESCRIPTION OF THE AMENDMENT BILL:
The ordinance seeks to amend the NI Act and overturn a judgment issued
by a three judge Bench of the Supreme Court in last August in 2014 in
the case of Dasrath Rup Singh Rathod Vs State of Maharashtra3and
ruled 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." Supreme Court further said "We clarify that the place
of the issuance or the delivery of the statutory notice or where the
complainant chooses to present the Cheque for encashment by his Bank are
not relevant for purposes of territorial jurisdiction of the
complaints". This three member Bench of the Supreme court had actually
overturned an earlier apex court ruling – the so called Bhaskaran
Ruling delivered in 1999, which allowed the victims of 138
NI Act to file cases in a magistrate's court in any court having
jurisdiction over the local areas where the five different actions took
place". While doing so the Supreme Court said "the conclusion
in Bhaskaran was influenced in large measure by curial compassion
towards the unpaid payee/holder, whereas with the passage of two decades
the manipulative abuse of territorial jurisdiction has become a
recurring and piquant factor".
Therefore the proposed amendment is definitely going to bring in some
relief to the victims. The present Ordinance proposes to inserts a new
Sub Clause to the existing section 142 (sub-clause (2)), which reads as
follows:
"(2) The offence under section 138 shall be inquired into and tried only
by a court within whose local jurisdiction the Bank Branch of the payee,
where the payee presents the Cheque for payment, is situated"4.
The Bill also introduces a new section (142A) in the NI Act, which reads
as follows:
" (1) Notwithstanding anything contained in the code of Criminal
Procedure, 1973 or any other judgment, decree, order or directions of
any court, all cases arising out of section 138 which were pending in
any court, whether filed before it, before the commencement of the
Negotiable Instruments (amendment) Act, 2015, shall be transferred to
the court having jurisdiction under sub section (2) of section 142 of
sub section(1), where the payee or the holder in due course, as the case
may be, has filed a complaint against the drawer of a cheque in the
court having jurisdiction under subsection (2) of section 142or the case
has been transferred to that court under sub section (1), all subsequent
complaints arising out of section 138 against the same drawer shall be
filed before the same court irrespective of whether those Cheques were
presented for payment within the territorial jurisdiction of that Court.
(3) If, on the date of the commencement of the Negotiable instruments
(amendment) Act, 2015, more than one prosecution filed by the same
person against the same drawer of the Cheques is pending before
different courts, upon the said fact having been brought to the notice
of the court, such court shall transfer the case to the court having
jurisdiction under sub section 142(2) before which the first case was
filed as if that sub-section had been in force at all material times."5
In order to create a suitable legal frame work for determination of the
place of jurisdiction for trying cases of dishonor of Cheques under
section 138 of NI Act, this new amendment Bill has been brought. The
objective of the new amendments is to ensure that a fair trial is
conducted keeping in view the interest of the complainant by clarifying
the territorial jurisdiction for trying the cases for dishonor of
Cheques.
The clarity on the jurisdictional issue for trying the cases of Cheque
Bouncing would increase the credibility of the Cheque as a financial
instrument. This would help the trade and commerce in general and allow
the lending Institution, including banks, to continue to extend
financing to the economy, without the apprehension of the loan default
on account of bouncing of a cheque.6
This decision of the Union Cabinet has been widely welcomed throughout
the country, and especially by the stake holders including industry
associations and financial institutions.
In the absence of these new proposed provisions, the litigants were
harassed for no cause, as they had to travel several times to a court in
a different city to pursue the case adding to the cost of litigation.
Sometimes there arose ridiculous situation where the litigants had to
spend half of the Cheque amount or more than that on travel and hotel
bills etc, in order to face the litigation and to get their own due
amount.
CONCLUSION
Keeping the fact in view that about 21 Lac Cheque Bounce cases are
pending in Indian Courts, the new law should help to consolidate the
cases and quicken the judicial process. It will also be proved helpful
for banking institutions which are battling the menace of bad loans. On
the other hand, there arose some protest also against the new bill,
giving their arguments that the new proposed laws in the NI Act could be
used by the Corporate to harass the common man.
Answering the protest and questions arose to the new amendment bill, the
Minister of State for finance - Mr. Jayant Sinha, insisted that it would
boost the integrity of financial system and not lead to the harassment
of the common man. The Hon'ble minister has further stated that "we need
this law to strengthen the financial system. It will beef up the
integrity of the system. We are moving towards a cashless society and we
need this".7
Footnotes
1. http://pib.nic.in/newsite/PrintRelease.aspx?relid=118533
2 http://www.telegraphindia.com/1150611/jsp/frontpage/story_25118.jsp#.VY5dhBuqqko
3 2014(3)ACR2914,
4 http://www.prsindia.org/uploads/media/Negotiable%20instrument/Negotiable%20instruments%20bill-.pdf
5 http://www.prsindia.org/uploads/media/Negotiable%20instrument/Negotiable%20instruments%20bill-.pdf
6 http://pib.nic.in/newsite/PrintRelease.aspx?relid=118533
7 placement.freshersworld.com/power.../Current-Affairs-May-2015
Weekly Mails are DRT Legal Guide and gold mine of practical information
for the borrowers and guarantors – The
mail recipient particularly Borrowers and Guarantors will be immensely
benefited by our weekly mails and DVDs, all previous issues of weekly
mails from 1st one till the last one may be viewed by clicking the links
given at the top. Separate web pages have been created to contain these
mails in batches of 10 so that pages open up fast. These mails are gold
mine of information on current topics giving lot of practical
suggestions and comments. Any new recipient to these mails must go
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is issued on every Friday. The particular issue of the weekly mail is
first published on the web site and then mailed to borrowers, guarantors
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particular. We are getting huge no of mails appreciating our weekly
mails. We welcome suggestions.
DRT Solutions Weekly Mail – 375th Issue
dated 17th July
’15
All Weekly mails right from 1st Issue to latest, click links
on top of this page
(1) DRT Blocks Transfer of Shares
The
following news article is self explanatory:-
DRT blocks transfer of UB shares to Diageo
BENGALURU, July 16, 2015, DHNS:
http://www.deccanherald.com/content/489533/drt-blocks-transfer-ub-shares.html
The Debts Recovery Tribunal at Bengaluru has issued an interim
injunction order restraining Unit Trust of India Investment Advisory
Services (UTI-IAS) and Standard Chartered Bank (StanChart) from handing
over 1,04,86,666 shares of United Breweries held by Vijay Mallya, and
1,04,64,288 shares of the same company jointly held by Vijay Mallya and
Siddhartha Mallya, to liquor major Diageo or any other person or entity
except the 13 applicant banks, including State Bank of India and United
Bank of India.
StanChart and UTI-IAS have also been restrained from dealing with the
shares in any manner until further orders of the Tribunal.
The order by the district and sessions judge on Wednesday came on an
interlocutory application (IA) made by the banks expressing the fear
that StanChart/UTI-IAS were in the process of transferring these shares
to Diageo despite an interim order from the Tribunal on June 19.
The banks had moved the tribunal against the defendants for recovery of
Rs 6,203.35 crore.
The banks contended that during the course of the proceedings, the
defendants (Kingfisher Airlines, United Breweries, and Vijay Mallya) had
given an undertaking that they would not transfer, alienate, or
otherwise deal with their assets.
The applicant banks said the undertaking was continued on every hearing
until a temporary injunction was granted by the High Court on September
3, 2013.
Subsequently, the banks said they came to know through filings before
the stock exchanges on September 2, 2013, that pledges had been created
on the two lots of shares on August 30, 2013.
They contended that it was done in violation of the undertaking and
personal guarantees made by Vijay Mallya. They held that based on the
market value of the shares, Rs 2,106.93 crore could be realised by them
through the sale of these shares.
According to the banks, Diageo had offered to repay the entire
outstanding dues to StanChart subject to transfer of the shares to
itself.
They found the whole transaction suspicious because only Rs 850.85 crore
in dues was outstanding to StanChart.
Without expressing an opinion on the merits of the case, the tribunal
found the case fit for issue of an interim injunction order.
(2) Mediation Justice
The
following news article is self explanatory:-
Mediation; Justice for Whom ?
By: Anil
Xavier | July
6, 2015
http://www.livelaw.in/mediation-justice-for-whom/
Recently (24th June
2015) a Judge of the Madras High Court (India) while hearing a bail
appeal of a man convicted of raping a young girl, agreed to the bail
request on condition that the man try “mediation”
with the victim. Mediation is aimed at marriage. “The case
before us is a fit case for attempting compromise between the parties…he
[the rapist] should be enabled to participate in the deliberations as a
free man and vent his feelings, open his mind and moorings. Where there
is a will, there is a way,” the judge has been quoted as saying. The
logic behind this “reference to mediation” seems to be that an unwed
mother and her child are “lepers” in Indian society and they are better
off enjoying the “respectable” status of a married woman, even if the
husband is her rapist. The Judge further added that in another similar
case “mediation was proceeding towards a happy conclusion”. In other
words, wedding bells were ringing. This order provoked widespread
protests mainly on the ground that there cannot be a compromise or
settlement as it would be against the honour of the victim which matters
the most.
Though not linked with the Madras
High Court decision, the Supreme Court of India in another appeal
relating to a rape case involving a minor in Madhya Pradesh (India),
held on 1st July
2015 that mediation should not be encouraged in cases
of rape or attempted rape.
Both the orders of the Madras High
Court and the order of the Supreme Court of India has considered whether
there could be “mediation” in a rape case. The fundamental test as to
whether there could be mediation in a matter is to identify whether the
parties to the dispute has the right or power to make a settlement.
Under the criminal jurisprudence, in a case of rape, the prosecution is
by the State and not by the victim. Section 376 of the Indian Penal
Code, by which rape is made a criminal offence is a non-compoundable
offence and therefore is not a matter which could be compromised by the
parties.
Apart from the above, even if a
matter could be resolved through mediation, it requires the consent of
both parties. In the case which was referred to mediation by the Madras
High Court, the consent or even the opinion of the victim was not sought
by the Judge. The Judge decided that it was for her “benefit” that she
participates in mediation. In fact when the press approached the girl,
she expressed incredulity and dismay. She said, “It is unfair of the
judge to do this to me. How can he do this without seeking my opinion?
The rapist only wants to get out of jail which is why he agreed to
mediation. Can the judge guarantee my safety if he is in this area? or
my daughter’s safety? I
am being forced to suffer again”.
I am reminded of a case that
happened in 2005 in a village in Uttar Pradesh (India), where a 28
year-old Muslim woman – Imrana,
was raped by her father-in-law. The local Muslim panchayat
(council of elders) treating the case as adultery rather than rape,
instructed her to divorce her husband and marry her father-in-law. Once
she had done this, she had to treat her husband as her son. Imrana
ignored their orders and continued living with her husband.
This was by a Panchayat, which we
could say did not have the presence of any learned jurists. But what can
we say about the orders of courts. This is not the first time that such
shocking orders have been passed by some courts. Are courts stretching
Alternative Dispute Resolution (ADR) to illogical levels? It seems some
Judges are more anxious to become ambassadors of “mediation”, much more
than their mandate.
Compulsory Mediation
Mediation should be at heart a
voluntary process. Of course in some countries such as the USA and
England, courts have encouraged parties to mediate and such court
ordered mediations have been shown to be successful. But the issue is:
Can such court-ordered mediations be compulsive?
Mediation puts the responsibility
for finding a solution into the disputant’s hands, giving them back the
power to resolve it themselves, with the assistance of an impartial
facilitator. When we give such empowerment to the parties, I feel
compulsive mediation cuts the root of that empowerment.
There is a very strong argument
that courts’ refusal to hear cases and referring them to mandatory
mediation is a breach of Article
6(1) of the European Convention of Human Rights, which
provides for the right to a fair trial. Mediation should be promoted
with the needs of the people in mind and not as an argument for
decreasing courts backlogs.
Mediation & Restorative
Justice
Coming back to the issue of
settlement of criminal matters, we need to keep in mind that a crime is
not just the violation of the law, but also the violation of people and
relationships. This violation creates an obligation rather than a guilt
and justice, in its true sense. This could be resolved ideally only when
there is involvement of all the stakeholders of a crime, i.e., the
victims, the offenders and the community members, in an effort to put
things right. The central focus is, not on the offenders getting what
they deserve, but on attending to the needs of the victim and offender,
for repairing the injury caused in the best possible manner.
Justice is a nebulous concept.
Aristotle divided justice into two main parts: distributive justice –
the sharing of social benefits and burdens – and corrective justice –
the rectification of injustice. Bentham also dichotomised justice,
considering procedural justice – fairness in processes – and substantive
justice – fairness in rights and obligations.
Taking these approaches together,
we need to have a legal system which allows parties to fairness in
process and rectification of injustice. There cannot be a total ban of
any opportunity to settle, if the parties “so desire”. The order of the
Supreme Court has closed the doors for settlement.
When we talk about criminal
offences, we also need to consider related emotions of the parties like
hurt feelings, trauma, dignity, social reputation etc. This could change
in varied circumstances and there has to be a way to address these
issues. There is a good example of this issue in an old Chinese movie,
viz., “The
Story of QiuJu” QiuJu is a peasant who lives in a small
village with her husband. She is in the final trimester of her
pregnancy. One day while her husband was conversing to the head of the
community, a miscommunication ensued and the headman beats her husband.
Even though she goes to the Police she does not get justice. For almost
the entire part of the movie she goes to different authorities for
getting justice. Finally when QiuJugoes into labor and there was no one
to help her, the headman with a group of local men carries her to the
hospital, where she gives birth safely to a healthy baby boy.QiuJu and
her husband thank the headman for saving her life and invite him for the
“one-month party” of the child. But he doesn’t come for the party and
the local policeman shows up to tell QiuJu that the headman has been
arrested and sent to jail based on her complaint. The movie ends with
QiuJu looking tormented!
Our traditional criminal justice
system is a system of retributive justice – asystem of institutionalized
vengeance. The system is based on the belief that justice is
accomplished by assigning blame and administering pain, where it is
believed that “justice equals punishment”. But in the recent years, a
relevant question is being asked – “justice for whom?” In many cases,
punishment often leaves them unsatisfied and it fails to address the
other important needs of the victim, such as, consolation for their
loss, easing
their trauma or mending their wounds. This failure of the
criminal justice system to cater for the complete needs of the victims
has, over the past years, seen the emergence of alternate methods of
criminal justice, the prominent one being the theory and practice of
restorative justice.
Restorative justice is a new way
of looking at criminal justice that focuses on repairing the harm done
to people and relationships rather than punishing offenders.This should
not be confused with mediation in its present form. We need to have
clear guidelines for settlement though restorative justice mediation.
Restorative justice is about the idea that because crime hurts, justice
should heal.
A developed or culturally matured
society should have this option for resolving criminal offences through
restorative justice mediation. Right now we find that when parties
settle criminal matters outside court, the law compels them to tell lies
or file false statements in court to wriggle out of criminal trials. We
have seen in umpteen numbers of criminal cases where the victims or
de-facto complainants turn hostile and speak against the prosecution
case. They are left with no choice of telling the truth because that
would upset the settlement and again wreck the relationship.
The index of a developed community
should necessarily have laws that would encourage people to speak truth
without fear and uphold their dignity and integrity and not compel them
to speak falsehood.
Conclusion
I hope the ongoing discussion
about mediation in rape cases would help to develop mediation at various
levels and also help to advance mediation activities towards a higher
level of understanding, acceptance, respect and use. It also shows that
what is needed is a culture change about mediation, supported by
relevant guidelines.
DRT Solutions Weekly Mail – 374th Issue
dated 10th July
’15
All Weekly mails right from 1st Issue to latest, click links
on top of this page
(1) Crime Never Dies
The
following news article is self explanatory:-
India:
Crime Never Dies
Last Updated: 24 June 2015
Article by Shweta
Vashist and Vishal
Gera
http://www.mondaq.com/india/x/407104/Crime/Crime+Never+Dies
"Nullum
tempus occurrit regi", which
originated in the 1250s, was first used by Bracton in his De
legibus et consuetudinibus Angliae. The literal meaning of this
maxim is that the crown may decide to proceed with action that may be
barred by time and that the lapse of time does not bar the right of the
crown. On the other hand, "vigilantibus
et non dormientibus jura subveniunt",
which is a maxim of Roman law, implies that the law shall only assist
those who are vigilant and not those who are careless or lazy about
their rights.
Chapter XXXVI of
the Code or Criminal Procedure, comprising of Sections 467 to 473,
prescribes distinct limitation periods for taking cognizance of various
offences, depending upon the gravity of those offences interlinked with
the punishments, respectively. The rationale behind the inclusion of a
period of limitation was that the testimony of witnesses becomes weaker
with the lapse of time and memory and consequently the chances of errors
in judgments increase, since the evidence becomes weaker. In addition to
this, the period of limitation would put pressure on the system of the
criminal prosecution to ensure that the offender is convicted and
punished quickly to ensure speedy justice. The deterrent effect that the
criminal justice system aims at, will stand defeated in case the
punishment has not been granted before the memory of the offence gets
washed off from the heads of those affected by it. This Chapter is
clearly in consonance with the concept of fairness of trial, as
enshrined in Article 21 of the Constitution of India.
The object of the Legislature, while introducing a period of limitation
can be ascertained from the statement of the Joint Committee of the
Parliament, where it was stated that:
"These are new clauses prescribing periods of limitation on a graded
scale for launching a criminal prosecution in certain cases. At present
there is no period of limitation for criminal prosecution and a court
cannot throw out a complaint or a police report solely on the ground of
delay although inordinate delay may be a ground for entertaining doubts
about the truth of the prosecution story. Periods of limitation have
been prescribed for criminal prosecution in the laws of many countries
and the Committee feels that it will be desirable to prescribe such
periods in the Code as recommended by the Law Commission".
Section 468 of the Code of Criminal Procedure lays down the period of
limitation for taking cognizance of an offence. According to this
Section, if an offence is punishable with fine only, the period of
limitation shall be six months and if the offence is punishable with
imprisonment for a term that does not exceed one year, the period of
limitation is one year. Section 468, further makes it clear that if the
offence is punishable with imprisonment for a term exceeding one year
but not exceeding three years, the period of limitation shall be three
years. However, this Section does not lay down the period of limitation
for offences punishable with imprisonment exceeding three years. Meaning
thereby there is no outer limit qua the limitation in relation to the
offences having punishment for three years or more. Thus, Section 473 of
the Code of Criminal Procedure enables the Court to take cognizance of
an offence after the expiry of the period of limitation, if it is
satisfied on the facts and in the circumstances of the case that the
delay has been properly explained or that it is necessary to do so in
the interests of justice.
In Asst. Customs Collector, Bombay v. L.R. Melwani, AIR (1970) SC
962, 965, the Supreme Court held that:
"The question of delay in filing a complaint may be a circumstance to be
taken into consideration in arriving at the final verdict. But by itself
it affords no ground for dismissing the compliant".
The five judges' bench of the Supreme Court of India, consisting of P.
Sathasivam CJ, Dr.B.S.Chauhan, Ranjana P.Desai, Ranjan Gogoi and
S.A.Bobde, JJ, in the case titled as " Sarah Mathew Vs. Institute of
Cardio Vascular Diseases & Ors."; 2014(2) SCC 62, sought to ensure
justice to the citizens of the country, by striking a balance between
the legal maxim "nullum tempus aut locus occurit regi', and the legal
maxim 'vigilantibus et non dormientibus, jura subveniunt'.
This aforesaid decision of the Apex Court delivered and penned down by
Justice Ranjana. P. Desai puts a rest to the conflicting views expressed
by the court in the following authorities:-
