DRT Solutions Weekly Mail – 390^th Issue dated 30^th October ’15

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(1) Legal Reforms 

The following news item is self explanatory:-

A little less litigation: Reforms must ensure that fewer fresh cases are filed, while the backlog is cleared fast

October 27, 2015, 12:01 AM IST

http://blogs.timesofindia.indiatimes.com/toi-edit-page/a-little-less-litigation-reforms-must-ensure-that-fewer-fresh-cases-are-filed-while-the-backlog-is-cleared-fast/

It is a common saying that Indian courts move so slowly that the grandson ends up fighting the court case that his grandfather files. What does this mean for the inheritance we will leave our children?

Over 3.15 crore cases are pending across India. This suggests over 3 crore plaintiffs or petitioners. After accounting for the large number of cases instituted by government, defendants could number around 9 crore assuming each legal case involves 3-5 defendants. That’s 12 crore litigants. Assume each litigant has 3 family members. This implies that a staggering 36 crore Indian citizens are directly or indirectly involved in litigation at any point of time.

In other words, today every fourth person in our society is a litigant (directly or indirectly) and in another 20 years or so this number could swell to every second person. That’s the kind of society we are creating – a nation of litigants. This is because of the way law has been practised for the last 67 years.

We have about 16,000 judges – to deal with 66,000 pending cases across the apex court, 45 lakh in the 24 high courts, and 2.7 crore across the district and subordinate courts. How fast is this mountain of pending cases likely to be dealt with?

The Supreme Court was constituted in 1950 and it has delivered 40,000 judgments in 65 years – that comes to 600 judgments per year. If it now delivers 1,000 judgments a year, that will still take over 60 years to deal with currently pending cases – not accounting for new cases.

Assuming a high court judge would deliver 2 judgments per day or 500 judgments per year, all 24 high courts with 640 judges may take 15 years to tackle their pending cases. As for the district and subordinate courts, with 15,000 judges they may take about 10 years to deal with their 2.7 crore pending cases assuming every judge delivers 200 judgments a year.

These are staggering time frames to deal with ever mounting litigation in India. A two-pronged action plan is needed – one to deal with the currently pending cases and another to ensure that a minimal number of fresh cases are filed. Towards these goals, i suggest following actions by the government and judiciary.

Employ more judges and create more courts. The current judge to population ratio is just 10.5 to 10 lakh. The Law Commission has recommended it should be 50 to 10 lakh. This can be accomplished over 3 years as India has 12 lakh registered advocates, 950 law schools, 4-5 lakh law students, and 60,000-70,000 law graduates joining the legal profession every year. Surely this pool can be tapped to recruit judges for all the courts. This will provide gainful employment to legal professionals while making the mountain of pending cases manageable.

Increase the number of working hours and working days for all courts. Former Chief Justice of India R M Lodha had once observed that when hospitals, airlines and trains can work 24×7, why can’t the courts? This single measure can dramatically reduce backlog.

Incentivise judges to deliver quality judgments and a mutually agreed number of judgments in a certain period. This can be in the form of promotions for example. Employ technology to monitor their performance – for example, how many judgments are delivered with strong justifications or get reversed by superior courts or the number of adjournments granted by a judge in a case or overall adherence to fixed time frames to decide cases.

Limit stay orders. When assets remain frozen for 5-20 years or longer they suffer loss of productivity and value and even encroachment. This is ‘criminal’ wastage of scarce resources. So stay orders must be decided in a maximum of 6 months by every court, or 12 months by the court where a case is initiated. Likewise, limit adjournments to a maximum of one for the plaintiffs and two for the defendants. Hearings must be fixed with short intervals, and cases decided within 1 year in the court where they are initiated followed by a limit of 6 months for each subsequent court.

Modernise land revenue cases. Court fee for filing most revenue cases is absurd. A person can pay just Re 1 as court fee and start litigation on land valued at Rs 100 crore. This fee needs to be substantially revised upwards to reflect a meaningful relationship with current market values of property. The extra revenue earned can be used to incentivise judges as well as provide better working facilities for court employees, litigants and advocates. This single measure will strongly discourage frivolous cases, including those with intent to harass defendants and extort money.

Sub-divisional officers can be key to resolving 80 lakh pending civil cases. Currently an SDO who deals with land revenue cases is also saddled with administrative responsibilities. SDOs appointed exclusively to deal with land revenue cases would really reduce pendency. As for the 1.8 crore pending criminal cases, imposing exemplary severe punishments will act as a deterrent. Courts must also punish those providing false evidence and false testimony, including lawyers. This again will discourage lawyers dragging cases to eternity.

Finally, all courts should follow the Supreme Court’s advice to limit lengthy arguments by advocates within agreed time limits. The goal must be “lean, to-the-point judgments delivered in quick time”.

(2) Amendment of Indian Arbitration Act 

The following news item is self explanatory:-

Amendment of Indian Arbitration Act: A Sigh of Relief for the Indian Arbitration Professionals and Clients!

By: Anil Xavier | October 28, 2015

http://www.livelaw.in/amendment-of-indian-arbitration-act-a-sigh-of-relief-for-the-indian-arbitration-professionals-and-clients/

The Indian arbitration scenario had always been abysmal. If the way in which arbitration proceedings were conducted under the 1940 Arbitration Act had made lawyers laugh and legal philosophers weep in view of unending prolixity, at every stage providing a legal trap to the unwary, the attempt to correct it under the 1996 Arbitration Act also failed. Arbitrators were competing with Courts to make it slower and expensive! Clients felt they were being fleeced by arbitrators.

In fact in the international arena, arbitration process was divided as “Indian Arbitration” and “Rest of the World Arbitration”. When we go for arbitration outside India, we were embarrassed to say that we practice arbitration in India! I am reminded of the 2009 International Bar Association (IBA) conference at New Delhi, when Mr. Rohinton Nariman, Senior Advocate (as he was then – now Judge of the Supreme Court of India) vociferously told the Chief Justice of India, Mr. Justice K.G. Balakrishnan (as he was then) during his speech, that many of the judgments of the Supreme Court of India, interpreting arbitration law has made arbitration lawyers in India mortified among the international legal community and requested him to take steps to correct or review the faulty judgments.

Of course, many of those judgments and the Arbitration Act itself made “arbitration life” miserable in India. Almost all international or cross border disputes in India went offshore, either to Singapore, Paris, London, USA or Malaysia. Even domestic arbitrations shifted their venue outside India. It was prudent, as the arbitration got over sooner and with less expense!.

Right from 1998,the arbitration professionals were demanding changes to the 1996 Act because of the anomalies and loose ends in the Act. The 1996 Act was not conducive for international arbitrations. The Law Commission of India recommended various amendments to the 1996 Act under its 176^th Report on 12 September, 2001. After considering the recommendations of the said Report, the Government decided to accept almost all such recommendations and accordingly, introduced the ‘Arbitration and Conciliation (Amendment) Bill, 2003’ in the Rajya Sabha (Upper House of the Parliament) on 22 December, 2003. Subsequently, in the wake of the report of the Justice Saraf Committee the Bill was referred to the Department Related Standing Committee on Personnel, Public Grievances, Law and Justice for a further analysis. The Departmental Related Standing Committee was eventually of the view that many provisions in the Bill were insufficient and contentious and, therefore, the Bill should be withdrawn and be reintroduced after considering its recommendations. Accordingly, the Bill was withdrawn from the Rajya Sabha. Nothing happened thereafter. The Law Commission of India then brought out Report No. 246 on 05 August 2014, recommending various amendments to the Arbitration & Conciliation Act, 1996.

Now, finally on 23 October 2015, the President of India has promulgated an Ordinance to amend the 1996 Act – “The Arbitration & Conciliation (Amendment) Ordinance 2015”, which shall come into force at once. (Of course the Ordinance must be approved by the Parliament within six weeks of reassembling or they shall cease to operate.)

Considering the fact that finally amendments have been effected in the 1996 Act, after a lapse of 19 years,it is time to celebrate. It is a sigh a relief to everyone associated with arbitration in India.

We will see some of the major changes brought about by the amendment, which will promote the use of arbitration in India, as well as promote India a venue for international arbitrations.

Neutrality of Arbitrator:

Neutrality of the arbitrator was one of the major drawbacks of Indian arbitration. Most of the public sector arbitrations had this anomaly. It was also misused by many private financial companies. The arbitrator would be their own officer or a person appointed by them. The opposite party had absolutely no role in the selection of the arbitrator. In fact this is against the very concept of arbitration, which envisages an expeditious and effective resolution of disputes through a private forum of parties’ choice, i.e., mutual trust reposed by the parties on the arbitrator, so that his decision is accepted as final and binding. The arbitrator should not only be fair and impartial but also should enjoy the confidence of the parties.How can there be confidence if the arbitrator is an officer or a person unilaterally appointed by one party?

The courts were also not supportive in overcoming this grave illegality. The courts had taken the view that if a party has entered into an agreement with eyes wide open it cannot wriggle out of the situation that if any person of the other party is appointed as arbitrator he will not be impartial. Even though the named arbitrator is an employee of one of the parties, it is not ipso facto a ground to raise a presumption of bias or partiality or lack of independence on his part. But the Court brought in some relief to this position later by holding that there can however be a justifiable apprehension about the independence or impartiality of an employee arbitrator, if such person was the controlling or dealing authority in regard to the subject contract and if any circumstance exists to create a reasonable apprehension about the impartiality or independence of the agreed or named arbitrator, then the court has the discretion not to appoint such a person.

By the present amendment,the neutrality of Indian arbitrators has been made in par with international arbitrations. Similar to the IBA Guidelines on Conflicts of Interest in International Arbitration, Schedule-V relating to the grounds for justifiable doubts relating to the independence and impartiality of arbitrators and Schedule-VII relating to categories of ineligibility for appointment as arbitrator has been inserted under Section 12. Apart from this, a provision has been made whereby before the arbitrator is appointed, a disclosure regarding his impartiality has to be mandatorily given. This is required even for appointments made under Section 11 of the Act by the High Court or the Supreme Court. So finally we are able to demolish the demon of one-sided arbitrations, which was a blemish in the system.

Time and Fee:

The enormous delay in completing arbitration proceedings was mainly attributed to the “per-sitting” fee charged by the arbitrator in ad-hoc arbitrations. The ease in which the arbitrators granted adjournments for the asking was something so nauseating. The duration of the “sitting” was also inexcusable – the maximum being 2 hours. Unlike institutional arbitrations where the fee is fixed and sitting is done on day-to-day basis, ad-hoc arbitrations were left to the whims of the arbitrators. We have seen arbitrations going on for year’s altogether and fee mounting above the actual claim.

In fact the situation became so notorious that even the Supreme Court of India had to say that there is no doubt that the cost of arbitration becomes very high in many cases where retired Judges are Arbitrators. The large number of sittings and charging of very high fees per sitting, with several add-ons, without any ceiling, have many a time resulted in the cost of arbitration approaching or even exceeding the amount involved in the dispute or the amount of the award. The court also opined that it is necessary to find an urgent solution for this problem to save arbitration from the arbitration cost. The court found that Institutional arbitration has provided a solution, as the Arbitrators’ fees is not fixed by the Arbitrators themselves, but is governed by a uniform rate prescribed by the institution under whose aegis the Arbitration is held.

The present amendment has also helped to settle this issue by inserting Schedule-IV, under Section 11(14) prescribing a model fee and making a scheme for the High Court to frame rules accordingly. This provision is not made applicable to international arbitrations and also for institutional arbitrations, thereby giving importance to institutional arbitrations, party autonomy and quality of arbitrators.

Similarly regarding fixation of time limit, a provision is made under Sec. 12(1)(b), where the arbitrator at the time of appointment itself has to give in writing a declaration that he is able to devote sufficient time for arbitration and that he will be able to complete the arbitration within 12 months.An amendment has also been made in Section 24 making it mandatory to hold arbitration hearing on a day-to-day basis and not to grant adjournments without valid reasons. Required amendments are also made by inserting a new Section 29A, where the award has to be made within a period of 12 months from the date of reference. There is an incentive if the arbitrator could finish the proceedings within 6 months, whereby he is entitled to receive additional fees. Similarly if the arbitrator overshoots the period, the parties can extent the time to a maximum of 6 months, but thereafter the mandate of the arbitrator gets terminated, unless extended by the court. While extending, if the court attributes the delay on the arbitrator, the court can either substitute the arbitrator or reduce the fee of the arbitrator.

A provision is also made for fast track arbitration by inserting a new section 29B. The parties can opt for fast track procedure where the tribunal can decide on the basis of written pleadings, documents and submission filed by the parties without any oral hearing and the award has to be made within 6 months from the date of reference.

Thus the ignoble Indian arbitration is getting a face lift, whereby serious attempts are made in the Arbitration Act to make it speedy and less expensive and promoting the concept of institutional arbitration for international and domestic arbitrations.

Clarity for international arbitrations:

There were lots of complaints about the 1996 Act that it was meant just for domestic arbitrations and did not have effective provisions to support international arbitrations, especially procedural aspects covered under Part I of the Act.

With a view to give procedural support for international arbitration, the Supreme Court held that when international arbitration is held in India the provisions of Part I would compulsory apply and in cases of international arbitrations held out of India provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisionsand also held that a foreign award may be challenged under Part I of the Act. These judgments had created an outburst among the legal fraternity that the courts are going beyond the basic tenets of arbitration and these decisions will scare away international arbitrations from India. The situation was salvaged subsequently by the Supreme Court itself holding that Part I of the 1996 Act would have no application to International Commercial Arbitration held outside India, but shall apply to all arbitrations which take place within India.

But there were some procedural problems faced as provision for interim protection and certain court assistance for proper conduct of arbitration were not available under the 1996 Act. Now through the amendments procedural backups are provided for international arbitrations. Provisions of Sections 9, 27, 37(1)(a) and 37(3) – i.e., provisions relating to interim measures by courts, court assistance in taking evidence and appeals against orders under section 9 – are made applicable to international arbitrations, even if the place of arbitration is outside India and enforceable under Part II of the Act.

Another important change that has been brought out in the case of international arbitration is that all applications to “court” has to be made to the High Court having jurisdiction rather than the principal civil court in the district.

Challenge & Execution of Awards:

A major change that has been introduced in the section 34 regarding challenge of awards is that a prior notice to the other party that the award is going to be challenged has been made mandatory and the party challenging the award has to file an affidavit endorsing compliance of the above requirement.

Further the vagueness created by some of the decisions of the Supreme Court with respect to “public policy” as a ground of challenge has been clarified and restricted to fraud, corruption, contravention to fundamental policy of Indian law and conflict with the most basic notions of morality and justice.

A striking change that has been brought out by this amendment in Section 36 regarding execution of awards is that the automatic stay of execution during the pendency of Section 34 is taken away and after the period of time for challenging the award has expired, the award becomes immediately executable, unless the court grants an order of stay of the operation of the arbitral award. This will promote the use of arbitration in commercial disputes, as the parties will be able to enjoy the fruits of the award without the delays of pendency in courts.

More power to the Arbitral Tribunal:

The amendment has also given more power to the Arbitral Tribunal to pass interim orders. The power of the court to give interim orders of protection under Section 9 has been limited up to the constitution of the tribunal. Once the arbitral tribunal is constituted the tribunal gets powers under Section 17 to pass interim orders and the said orders will be deemed to be orders of the court and shall be enforceable under the Civil Procedure Code in the same manner as a court order.

Even though these powers were available to the arbitral tribunal under the 1996 Act, nobody dared to use it as it did not have the tooth of enforceability. It resulted in overcrowding the courts under Section 9, before, during or after the arbitral proceedings. This amendment will not only facilitate emergent orders of protection from the tribunal, which otherwise will consume lot of time in the court, but also help reduction of case pendency of Original Petitions in the District Courts as well as Arbitration Appeals in the High Court.

Conclusion:

I would say that the Arbitration & Conciliation (Amendment) Ordinance 2015 is a long awaited change. We may not have the best Arbitration Act in the world, but we definitely have a better Arbitration Act. Now we need to walk that extra mile to bring back the lost opportunity – to redeem the pride of having arbitrations in par with any other part of the world.

DRT Solutions Weekly Mail – 389^th Issue dated 23^rd October ’15

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(1) Let Team of Experts Run Bar Council of India     

The following news item is self explanatory:-

Let Team of Experts Run Bar Council of India, Suggests Madras HC

Published: 07th October 2015 03:30 AM

Last Updated: 07th October 2015 03:39 AM

http://www.newindianexpress.com/cities/chennai/Let-Team-of-Experts-Run-Bar-Council-of-India-Suggests-Madras-HC/2015/10/07/article3067077.ece

CHENNAI:  In a far-reaching order, a single judge bench of the Madras High Court has directed the Centre to positively consider handing over the functions of the Bar Council of India (BCI) to an expert body headed by a retired Supreme Court judge.

Justice N Kirubarakan’s order reasoned that the bar council — the apex body in the country that manages legal profession and education — is incapable of handling issues like intrusion of persons with criminal background into the legal profession.

“Union government is to consider positively, within six months, to entrust the functions of the Bar Council of India to an expert body, headed by a retired Supreme Court judge permanently or till the Advocates Act and the Bar Council Rules are revised...” the order issued on Tuesday read.

The court issued the order while hearing a petition filed by S M Anantha Murugan seeking necessary direction to prevent people with criminal background entering the legal profession.

An extraordinary measure the court ordered was inclusion of people from different fields to manage legal affairs in the country, saying that the election process to select members of the BCI has failed. It said the expert body must be entrusted the functions of the council until the Advocates Act and the Bar Council Rules are revised to nominate academicians, legal luminaries, prominent social workers, doctors, retired IAS and police officers as members of the bar council.

“The election process failed to elect appropriate persons as members of the Bar Council resulting in making the council incapable of handling issues properly,” said the court order. The order, however, did not elaborate on how these nominations be made and by whom.

Other directions ranged from restraining the Bar Council from holding its next election to abolition of three years law degrees courses. It also ordered de-recognition of advocate associations formed in the last 20 years and not the enroll law graduates with serious criminal cases pending as advocates.

“Bar Council of India shall not conduct the next Bar Council election after expiry of the present term in 2016, without prescribing minimum qualification like 20 years standing in the Bar or Senior counsel who does not have any criminal case or background for the candidates to contest bar council elections, and till the verification of advocates is done as per Bar Council of India certificate and Place of Practice (verification) Rules 2015, by entrusting the functions to an expert body,” the order read.

It ordered the bar council to reduce the number of law colleges and seats in the colleges as “the population of advocates is increasing enormously year after year.” The court also ordered that the law graduates who have pending criminal cases, that may end in conviction of more than three years, not be enrolled in the State bar council which enables them to practise law. Those facing criminal cases which may end in conviction of less than three years may be given only provisional enrollment. The enrollment will be revoked if the case ends up in conviction.

The court observed that criminalisation is “spreading like a wild fire sullying, degrading and destroying the image and prestige of the noble profession,” and expressed hope that the Supreme Court and the Centre will take a serious note of this and take appropriate action. “... otherwise “Neethi Devathai” (Goddess of Justice) will not forgive all the stake holders of justice delivery system,” Justice Kirubakaran said in the order.

(2) Justice Kurien on NJAC Verdict     

The following news item is self explanatory:-

By SCOI Report Thursday, 22 October 2015 SCOI Reports Send us a tip

DRT Solutions Weekly Mail – 388^th Issue dated 15^th October ’15

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(1) Why Backlog in Indian Courts will continue to grow  

The following news item is self explanatory:-

Why the backlog of over 3 crore cases in Indian courts will continue to grow

http://scroll.in/article/759809/why-the-backlog-of-over-3-crore-cases-in-indian-courts-will-continue-to-grow

The Department of Justice in the Ministry of Law informed Parliament  in March that 26,851,766 cases were pending in subordinate courts.  This figure has remained unchanged since at least 2012. The number of cases pending in all the court is estimated to be upwards of3 crore.

One of the main reasons for this backlog is that enormous numbers judicial vacancies remain unfilled. In August, the Law Ministry said that the country's High Courts had a shortfall of 384 judges in its sanctioned strength of 1,1017 positions. In December 2013, the Supreme Courtstated that of a sanctioned strength of 19,518 positions in the subordinate courts, there were 4,403 vacancies.

This should have been a reminder for the judiciary to move fast to appoint more judges in the lower courts. But the controversy about the Delhi Judicial Service examination underscores the enormity of the problem.

Not good enough?

In February 2014, the Delhi High Court  issued an advertisment for the posts of 85 judges to be appointed in district courts. Around 10,000 lawyers and judges from across the country had turned out to sit for the preliminary exam. The job has many attractions: the perks include government accommodation, leave travel allowance, medical benefits and more. Besides, a sessions judge in a Delhi court can also move up to become a judge in the Delhi High Court, which brings with it an even healthier pay packet and perks.
From these 10,000 applicants, only 700 were selected to sit for the main test. This exam, spread over two days, looked at the applicants’ understanding of civil and criminal law, as also their general knowledge.

The results, which were announced in May this year, showed that only 15 people had qualified.

Among the 885 candidates who flunked the test were 68 judges, who had applied from other parts of the country. Many of them had topped the judicial exams in their own states. Other applicants who failed to make the grade included top lawyers with degrees from prestigious law schools.

Charges of nepotism

As it turned out, all the 15 shortlisted applicants who went on to be interviewed and appointed as judges were directly linked to Delhi High Court judges – two were daughters of judges, others were doing clerkships under them or were variously related.

One of the applicants who is presently a judge from another state, said that an RTI petition was made for applicants to be allowed to see their answer sheets.  Some where shocked to find that they had scored zero for their English essay.  An essay, this person pointed out, is not a mathematical sum where the answer is either right or wrong.

"What was equally horrifying was that the roll numbers and names of candidates were still on the answer sheets, which is against the Supreme Court directive because these candidates can  be identified," he said, requesting anonymity.

The results caused such an outrage that Minister of Law DV Sadananda Gowda sent a letter to the chief justice of Delhi High Court, asking him to look into the matter to find out if indeed  there had been "corruption, favourtism and nepotism" in the way the exam had been conducted.

Unreasonable and arbitrary

In August, the Supreme Court admitted a plea filed by the Centre for Public Interest Litigation asking it to quash these results, describing the entire selection process as being unreasonable and arbitrary. Appearing for the Centre, activist lawyer Prashant Bhushan said, "We need to have independent system of evaluation in place. I understand the answer sheets were evaluated by district judges of the Delhi court, which was obviously not appropriate."  He said he had asked for an independent committee of retired judges to look into the process.

The Supreme Court bench of Justice Deepak Mishra and Justice PC Pant asked the Registrar General of the Delhi High Court to reply within three weeks but refused to stay the process.

Twenty months after the posts were advertised, most of the lawyers who sat for the exam wonder if there is any possibility of a retest, though none of them want to be openly identified as campaigning against the court.

On October 3, the Delhi High Court notified 100 vacancies for the lower judiciary in Delhi. Many lawyers believe this has been done to take the teeth out of the PIL filed by the Centre for Public Interest Litigation . This will mean applicants will have to sit for a fresh round of exams and they can only hope that their experience is better than last time.

The Delhi case isn't an anomaly, say people familiar with the situation. The Allahabad High Court, for instance, is operating at less than 50% of its sanctioned capacity. As a result, there are one million cases pending before this high court alone.

There is a shortage of judges and those in positions of power are not in a hurry to fill up the vacancies, as a controversy about the Delhi Judicial Service exam shows.

(2) Indian Legal Sector being opened to Foreign Law Firms  

The following news item is self explanatory:-

Indian legal sector is being reformed by the government wherein it is opening up legal sector for foreign law firms

http://lawyerslaw.org/indian-legal-sector-is-being-reformed-by-the-government-wherein-it-is-opening-up-legal-sector-for-foreign-law-firms/

There is a reform being done to the Indian legal section by the government in order to make the foreign law firms to enter into domestic field which will help in development of the nation. Government officials said that as there are many multinational companies in India and Indian firms are also investing in foreign countries, the government is making better ways for the foreign law firms to enter India for the growth and development.

India has signed General Agreement on Trade and Services (GATS), it is under obligation to liberalise the legal field, which was not done before as there was a stiff opposition from Indian advocates body, Bar Council of India and Society of Indian Law Firms (SILF) to allow foreign law firms to practice international law in India. President of SIFL Lalit Bhasin, told that anything done in this regard by the government must be done after they consult with the body that works for the interest of the lawyers. Bhasin told that they were not against the reforms in the legal field but it should be made in a proper way. He further stated that it has to be internally liberalised as there was lot of internal controls like one cannot have websites or brochures etc which has to change before allowing foreign law firms to work in India.  He further commented that in the last meeting which was held in February with the government lawyers had told that such foreign law firms must be allowed to enter only on fly-in and fly out basis where they could advise to the clients later involve themselves in arbitration and then they must be given permission to start an office in India. Bhasin also said that foreign law firms must be permitted to start an office in India to practice international law only and not Indian law and there has to be an Indian partner in their office. Abhimanyu Bhandari who is a Supreme Court lawyer told that these foreign law firms should abide by domestic rules of India.  Bhandari also said that many students who studied in National Law School were the best lawyers in US and UK who are from India.

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DRT Solutions Weekly Mail – 387^th Issue dated 9^th October ’15

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(1) Frequent Strikes by Lawyers  

The following news item is self explanatory:-

Last Modified: Tue, Oct 06 2015. 12 29 AM IST

Can the SC do anything about frequent strikes by lawyers?

http://www.livemint.com/Politics/DIQyJ9qcsdrC9k99DDO0VJ/Can-the-SC-do-anything-about-frequent-strikes-by-lawyers.html

Lawyers are allowed to protest in ‘the rarest of the rare’ cases, but the causes for their strikes are anything but rare

Advocate Prashant Bhushan has filed a contempt petition in the Supreme Court against the propensity of lawyers to go on strike.

On certain days, the Indian litigant knows better than to hold the courts to their official calendar of working days: at least 100 days have already been lost this year across various Indian courts to strikes by advocates.

Delhi’s six district courts are in the lead, having lost more than a fifth of the working year so far to strikes by bar associations. Rivalling Delhi are the district courts in western Uttar Pradesh, on unofficial holidays, every Saturday for the last year, as well for two weeks last month.

Advocates practising before the Rajasthan high court’s Jaipur bench have been striking every Friday for the last 30 years and in Meerut, every Saturday is dedicated to lawyers’ strikes over the last 15 years.

Under a law laid down by the Supreme Court in 2002, lawyers are allowed “protest abstention from work for not more than one day,” in case of the “rarest of rare cases where the dignity, integrity and independence of the Bar and/or Bench is at stake”.

In the last few years, bar associations have interpreted the expression “rarest of rare” to mean a variety of things. It is clear that strikes and the reasons for them are anything but rare, and the ones who suffer are usually the clients.

Justifications

Delhi district bar associations’ coordination committee chairman R.K. Wadhwa has a different view. “When we abstain from our work it is our own loss because we are not appearing in courts then. But at times it is the only remedy available to lawyers,” he said.

Wadhwa is one of the four respondents in non-governmental organisation (NGO) Common Cause’s contempt petition in the Supreme Court against lawyers going on strike. The NGO, acting through advocate Bhushan, said that there had been more than two months of strikes this year—once for 19 days at a stretch—by Delhi lawyers.

Bhushan also made Delhi High Court Bar Association (DHCBA) secretary Abhijat (who uses only one name) a respondent in the case. DHCBA called for strikes to protest both the impending and eventual passage of the law enhancing the district courts’ jurisdiction. In the middle of one such strike, some DHCBA members purportedly suspended their own president Rajiv Khosla.

Khosla had, before his suspension, commented that court boycotts are a “futile exercise”.

“We wouldn’t have had to strike for almost two months had the government enhanced the pecuniary jurisdiction (of Delhi’s district courts) from Rs.20 lakh to Rs.2 crore a long time ago,” commented Wadhwa on the issue which was covered in Mint on 16 March 2015 (http://mintne.ws/1FpWPqi). “In the rest of the states the jurisdiction is unlimited. If you go to Haryana it is Rs.200 crore in the district court. Similarly in Uttar Pradesh, in Noida. So what we are asking for is a legitimate raise.”

The increase in pecuniary jurisdiction was of benefit to litigants, he argued, adding that, “Lawyers are not just agitating for their own cause.”

DHCBA secretary Abhijat responded that the high court opposing camp was “compelled to abstain from work, as the government was clearly succumbing to the strike in the district courts”. He said he thought the DHCBA had complied with the “rarest of rare” dictum.

Western Uttar Pradesh advocate Ajit Kumar, explaining the western Uttar Pradesh districts’ recent fortnight-long strike, said: “The bar as a collective body needs to assert itself off and on just as a labour union does, and send the message across. In some adverse situations it is justified, I believe, such as in our case—for the demand of an Allahabad high court bench in western Uttar Pradesh.”

“(The government) is restricting somebody’s access to freedom merely on this ground. Litigants (in western Uttar Pradesh) are not filing cases in Allahabad simply because of the distance and costs involved.”

Agitation and strikes for a local high court bench are commonplace, and while often justified as more convenient for local litigants, a local bench is also a profitable new institution for local lawyers to practice in.

Kumar said that Meerut’s district courts have been striking every Saturday for the last 15 years, and that all other western UP districts had also begun following suit over the last year. He said this was a “nice” way of registering a protest because “usually” court proceedings were not held on Saturdays, which were reserved for clerical work such as drafting affidavits.

However, he added that every year in certain western Uttar Pradesh districts the movement behind this demand peaked and at such times strikes lasting one to two weeks have been called for.

Kumar said another legitimate reason for calling a court-boycott was the assault on lawyers on court premises. The Bar Council of India (BCI), another respondent in Bhushan’s contempt petition, had called a nationwide strike in March when an Allahabad high court lawyer was allegedly killed by a policeman on court premises.

The Patna high court also witnessed a strike this year over greater security for lawyers practising before it.

Chilling effects

The prerogative to decide whether the cause of a strike fits the “rarest of rare” description as per the law laid down by the Supreme Court lies with the chief justice of the court whose boycott is called for. The judgment even states that the bar is obligated to consult with the chief justice before calling the strike.

And yet the courts are seemingly letting this prerogative go. At least on 6 March, the Calcutta high court did. On 6 March—a Friday—6,000 advocates practising before that high court chose to “gift themselves an additional holiday to fill the missing piece in a long weekend break”, reported The Telegraph ( http://mintne.ws/1OfyA2z).

Chief justice Manjula Chellur, along with several other judges of the high court, acquiesced and adjourned cases listed on that Friday to the next working day, reported The Telegraph.

Several Delhi lawyers spoken to, on condition of anonymity, claimed that on days when they had chosen to ignore bar associations’ strike calls and appear before a court bench, the judges had asked them, in light of the ongoing strike, if they were sure about attending court proceedings that day.

Delhi advocate Apar Gupta commented: “Even if we disregard the social sanctions later (which come with not obeying a call for lawyer strike)—for instance the bar (may hold it against me) that I do not believe in the larger social benefit of arguing for enhanced pecuniary jurisdiction—we are stopped by (physical) force from appearing in courts (on strike days). There are threats to our security (if we want to appear in courts on strike days).

Gupta said that during the Delhi district court strike, thousands of Delhi lawyers were sent text messages by the various bar associations ordering them not to get even affidavits made on court premises.

Unsurprisingly, Bhushan’s and Common Cause’s contempt petition in the Supreme Court was met with reluctance from the judges as it came up for hearing on 11 September. Common Cause has asked that the court direct BCI to incorporate a prohibition on strikes in the professional conduct rules framed under the Advocates Act, 1961. Such a rule would empower the regulator to initiate disciplinary proceedings against striking lawyers.

However, the presiding judge initially tried to persuade Bhushan to withdraw the petition, as it would not serve any purpose, saying that the burden of self-discipline was on the bar itself, Legally India reported.

Bhushan did not respond to an e-mail seeking comment(http://mintne.ws/1MUdBkh).

The Allahabad high court had a bolder reaction to BCI’s 23 March nationwide strike. The court took up the matter of its own accord on 24 March, to formulate measures to tighten security in the high court and Uttar Pradesh district courts. Chief justice D.Y. Chandrachud’s seven-judge bench observed on the first day of the hearing: “The judgment of the Supreme Court has been flouted by the associations representing the lawyers. Even the restriction that strikes should not be resorted to, even in an exceptional matter, for a period in excess of one day, is observed in the breach. One-day strikes are extended from day to day, almost indefinitely.

“In view of the clear statement of the law which has been laid down by the Supreme Court, there can be no doubt about the principle that a strike by the members of the Bar on the call of the office-bearers of the Bar associations is without the authority of law and is illegal. An officer convening a meeting for the purpose would be liable to be held personally responsible along with others who interfere in the functioning of the court.”

That case is currently pending but the pressure is now on the Supreme Court, which no lawyers’ body has dared to boycott in recent recorded history, about whether to follow the Allahabad high court in firing another warning salvo across the bow of the bar.

Mint’s association with LegallyIndia.com will bring you regular insight and analysis of major developments in law and the legal world.

Striking Reasons

l Bar associations have called strikes to press for greater pecuniary jurisdiction (the lower limit of the value of cases a court can hear), which was ultimately successful for the Delhi district courts. Local bar associations have also held protests demanding their own high court benches in various regions. Violence against lawyers, either by individuals or by the police, has also often figured as a reason.

l Advocates who make a living citing India’s civil and criminal procedure codes in court have also gone on strike in solidarity with an advocate colleague whose first information report (FIR) was not registered by the police, or one who wasn’t compensated adequately in a court case or another against whom an allegedly false case was registered.

l Lawyers have collectively boycotted courts demanding apologies from or transfer of specific judges, and in other cases in defence of certain judges.

l Other reasons behind recent strikes include there not being enough chairs for lawyers to sit on in court (Patna high court), the absence of an All India Institute of Medical Sciences (AIIMS)-style hospital in a particular location (Jammu), on one occasion because it was simply too hot (Calcutta high court) and once when a working day had fallen in the middle of an extended weekend.

(2) Transparency in Judiciary  

The following news item is self explanatory:-

Transparency in judiciary

 October 06,2015, 02.19 AM  IST | | THE HANS INDIA

http://www.thehansindia.com/posts/index/2015-10-06/Transparency-in-judiciary-179399

National eCourts portal ‘ecourts.gov.in’ is a public access portal disseminating national, State, district and court-wise information about institution and disposal of cases on a monthly basis. It would also separately provide data and details of cases filed by senior citizens and women. 

With this, the figures of pendency of district judiciary courts across the country, in aggregate for country and States as well as individual court/judges, are open to people to access by visiting the National eCourts portal ‘ecourts.gov.in. Modi government has rightly sought more transparency from the judiciary. 

Emphasising the need for more transparency in the functioning of courts, the Modi government has requested the Supreme Court to make public key performance indicators of judges that would bring accountability in the judiciary and help reduce pendency of cases. 

At last count, the pendency in subordinate courts was estimated to be more than 2.65 crore while the total pendency was around 3.10 crore, including those in the SC and the HCs

There is one question which none could answer. That is the question from a seeker of justice, asking to know the approximate time in which he would get justice in that court. Can RTI force the court of law to give that information on its own? 

It’s a great event in this country in times of RTI with a decade of working experience of access law that the Supreme Court launched the public access portal of the National Judicial Data Grid (NJDG) for district courts. 

This page is inviting the public to keep tabs on the burgeoning case pendency rates of their local courts. It’s a wonderful step. This encourages the litigants and the general public to watch the pendency graphs and, may be in the future, suggest solutions against justice delayed.

Sometimes I wonder how the judicial system created by the British can cater to the judicial needs of the current Indian population. If 47 crore was the population on Independence Day, we are now 127 crore people after 68 years of Independence and the pendency of litigation is 3.1 crore.  

It means at least 100 crore people are peace-loving or just do not bother about their rights. Knowledge, resources or time, could be a problem. 

National eCourts portal ‘ecourts.gov.in’ is a public access portal disseminating national, State, district and court-wise information about institution and disposal of cases on a monthly basis. It would also separately provide data and details of cases filed by senior citizens and women.

“With this, the figures of pendency of district judiciary courts across the country, in aggregate for country and States as well as individual court/judges are left open for people to access by visiting the National eCourts portal ‘ecourts.gov.in’.”  

We have been hearing about digitalisation since 1990, but this could happen after two-and-half-a- decades. This is right synchronization of Right to Information and Information Technology and Judicial Information.  

As promised, pendency statistics should be updated on a daily basis by district court complexes. Hopefully, the pendency would be broken into civil and criminal cases, segregated into year-wise categories of up to two years, between two and five years, between five and 10 years and more than 10 years. 

The NJDG page for public access has been planned to disseminate national and state, district and court-wise information about institution and disposal of previous month’s cases and also cases filed by senior citizens and women in the total pendency. 

It has a feature of monitoring alerts viz., all cases listed for the day across the country and the cases where no date is updated etc. As the statement of Supreme Court rightly claimed, “this initiative is in furtherance of the motto of judiciary to promote transparency and access of information for all the stakeholders of the justice delivery system.”

The judiciary is inherently transparent with an open trial. But this openness is drowned in pending cases. The darkness of secrecy continues with lack of access to information about their cases. Modi government has rightly sought more transparency. 

Emphasising the need for more transparency in the functioning of courts, the Modi government has requested the Supreme Court to make public key performance indicators of judges that would bring accountability in the judiciary and help reduce pendency of cases. 

Among the key performance indicators would be how many adjournments each judge is allowing on an average during the life cycle of a case, number of cases in which trial proceedings have been stayed by superior courts and average time for which such trial proceedings remain stayed.

 

Judges performance

The court-specific data will help the NJAC set judges' performance standards and could be key in determining promotions of judges to higher judiciary, besides bringing much desired transparency in the functioning of courts. 

Recently, in a high-level meeting, the law ministry submitted an 11-point list that sought detailed disclosure on the SC-monitored National Judicial Data Grid (NJDG). The information sought includes category-wise pendency of cases (civil and criminal) in the SC, high courts and district and subordinate courts.

The government has sought more specific information like the average time taken for disposal of cases in district courts and HCs, category-wise disposal of cases per judge per year in district and high courts and the number of cases where orders of district courts were challenged before the HCs every year among other things.

There should be an independent study conducted on the data available through the NJDG to find out the cause of huge pendency in courts. At last count, the pendency in subordinate courts was estimated to be more than 2.65 crore while the total pendency was around 3.10 crore, including those in the SC and HCs.

As of now, the NJDG's public access page gives consolidated figures of pendency of cases in district courts across the country. There is no specific information on adjournments in each case, life cycle of a case before its disposal and whether first come-first served basis was applied in determining trial of a case. 

Presently, the judicial data grid has information on only 1.94 crore pending cases as against the pendency of around 3.10 crore cases.Appointment of judges should depend on criteria of integrity and merit. Elevation of judges to next higher position should be totally based on their established performance indicators next to their integrity quotient more than IQ and knowledge of law.  

Any judge proved to be causing delay or vulnerable to pressures and manipulative tactics of some clever money making lawyers, should not be elevated or promoted. For filling the quotas, these indicators should not be ignored. If such people are not found, there should not be any recruitment of judges at all. 

Anybody who is opposed to transparency should never be elevated.  Transparency should be prime criteria along with the integrity. Without insisting on these qualities, if reservations and recommendations form the basis of selection of judges, better we do not have courts at all. 

Transparency leads to efficient and people-oriented judicial governance.  When a client is informed with certainty that his case would be disposed in a specific period, the judicial governance can deliver justice. Justice delayed will deny justice and every other right also.

DRT Solutions Weekly Mail – 386^th Issue dated 2^nd October ’15

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

(1) DRTs to be Computerised Soon   

The following news item is self explanatory:-

Debt Recovery Tribunal to be computerised soon: Arun Jaitley

PTI | Sep 28, 2015, 07.38PM IST

MUMBAI: In a bid to fast-track recovery of bad loans by banks, the government is looking to computerize the Debt Recovery Tribunal (DRT) and reduce the number of oral hearing to just two, finance minister Arun Jaitley said on Monday. 

"I have suggested to the Department of Financial Services ... to consider on a high priority basis the computerization of the entire procedures of the DRT itself," Jaitley said at the 68th Annual General Meeting of Indian Banks Association here today. 

The administration of DRT is not under any judicial authority and it is looked after by the Department of Financial Services in the finance ministry. 

Jaitley said the Sarfaesi Act has worked well but the slow procedure at the DRT level at times can defeat the expeditious provisions available to the lenders in the Act. 

He further said that all kinds of filings can be done over internet with the computerisation. 

"The filing of pleading, the filing of document, the filing of replies would all be done on the net itself, with only a provision for two oral hearings in a defined period of time - one for an interim order and one for a final order." 

He also said there have been some concerns about absence of an exit policy in bankruptcy law but soon the draft guidelines will be out on this. 

"I myself has taken some meetings with the committee which is drafting the law. It is almost in the final stages of the draft and by end of this month, or early next month, the final draft will be out. I hope it will be placed before Parliament very soon," Jaitley said. 

He said the draft on resolution of disputes relating to major contracts will also be out soon. 

"Very soon, hopefully in the course of this very fiscal, that law should see the light of the day," he said. 

On Arbitration Law, he said the proposed law provides for fast-track arbitration with a one-member Arbitration Board that will have a mandate to complete the entire process within six months. 

Talking about bad loans of banks, Jaitley said problems of the steel sector are on account of external factors, where cheap imports are hurting the domestic industry. 

He also said much progress had been made in the highways sector and the projects are being implemented without major bottlenecks. 

"The review of the stalled projects was now being done at the Prime Minister's office level. The number of stalled projects has decreased considerably," he said.

(2) Review in DRTs – For Borrowers - Important and Helpful  Suggestion   

One of our clients in DRT found that the PO, in his order, has not covered the points pressed by him during the arguments. We suggested him to file Review incorporating the following Extract from the ruling by the SC in the matter of Mohd. Akram Ansari vs Chief Election Officer vide 2008 (2) SCC 95 :-

“14. In this connection we would like to say that there is a presumption in law that a Judge deals with all the points which have been pressed before him. It often happens that in a petition or appeal several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some of these points are pressed. Naturally a Judge will deal only with the points which are pressed before him in the arguments and it will be presumed that the appellant gave up the other points, otherwise he would have dealt with them also. If a point is not mentioned in the judgment of a Court, the presumption is that that point was never pressed before the learned Judge and it was given up. However, that is a rebuttable presumption. In case the petitioner contends that he had pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an application before the same learned Judge (or Bench) which delivered the impugned judgment, and if he satisfies the Judge (or Bench) that the other points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the concerned Court to pass appropriate orders, including an order of review. However, it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the Court below, has not been dealt with in the judgment of the Court below. The party who has this grievance must approach the same Court which passed the judgment, and urge that the other points were pressed but not dealt with.”

As usual, the Bank opposed the said Review Application. On account of our above submission the contentions of the Bank will have no weight. Thus this approach is a very important help to DRT advocates on behalf of the borrowers.

DRT Solutions Weekly Mail – 385^th Issue dated 25^th September ’15

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

(1) Sec 14 of Sec. of SARFAESI Act – Judgment of Patna HC – Favourable to Borrowers    

In the CWJ Case no 10332 of 2015 and in the matter of Shravan Kumar S/o Meghu Sao, Director of Shiv Sagar Rice Mill, Pvt. Ltd. Maniyanwan Road, Deepnagar, Nalanda, Petitioner vs PO DRT, DM, Officers of Punjab National Bank etc, decided on 09.09.15 vide extract below:-

“7. - - -A perusal of the provisions of Section 14 makes it clear that the requirement of such affidavit accompanying the request is of mandatory nature as it requires disclosure of material facts and particulars relating to the relevant transaction and it is only after applying his mind to these aspects of the matter that the District Magistrate is required to arrive at his satisfaction before passing suitable orders for purposes of taking possession of the secured assets. In absence of the affidavit accompanying the request letter dated 02.03.2015 written by the Bank to the District Magistrate, it must be held that all consequential actions are rendered illegal and without the authority of law.

8.  In the result, the writ petition is allowed to the above extent and the order of the District Magistrate as contained in Letter No. 580/Vidhi dated 19.03.2015 (Annexure-8) is hereby set aside with all consequential reliefs to the petitioner. The respondents shall forthwith restore physical possession of the Rice Mill and the Residential House in question to the petitioner. It is however made clear that the respondents shall be at liberty to proceed in the matter in accordance with law, if so advised.”  

(2) Court Cases – Media Coverage    

The following news item is self explanatory:-

Media coverage of court cases

 September 22,2015, 11.35 PM  IST | | THE HANS INDIA

http://www.thehansindia.com/posts/index/2015-09-22/Media-coverage-of-court-cases-177144 
In a recent incident, a judge in a criminal court in Hyderabad pointedly asked a journalist covering a seemingly high profile case to walk out of the court. 

 

Members in the media were clueless as to what prompted the judge to do so and also whether they were caught between the management (their employer) requiring them to cover cases and the wing of administration of justice which prevented them from covering the story. 

 

Fortunately the controversy did not gain currency thanks to a member of the fourth estate. I got to revisit the ruling of the Apex court in the Sahara case.  

 

It is so important for constitutional and public functionaries to understand that constitutional governance is all about limited powers.

Those clothed in power- be it the street side constable, the cane wielding school teacher or the men in black robes seated in authority-must understand that the system not only empowers but also entrusts them.  

 

Their work station is not the gym for muscle flexing. Dealing with increasing incidents of media trial and its tendency to go overboard, the Apex court in the judgement stated above said, “Such incidents are increasing by the day. 

 

Such reporting not only affects the business sentiments but  also interferes in the administration of justice.”It rightly recognised that, “The time has come that this court should give appropriate directions with regard to reporting of matters (in electronic and print media) which are sub judice”. 

 

The court rightly echoed an earlier sentiment that clearly declared, “A trial by press, electronic media or public agitation is the very antithesis of rule of law”.

 

In the context of the Sahara case and its report the Supreme Court was dealing with an application for “Appropriate guidelines be framed with regard to reporting (in the electronic and print media) of matters which are sub judice in court and the manner and extent of publicity to be given by the print/ electronic media of pleadings/ documents filed in a proceeding in court which is pending and not yet adjudicated upon.”

 

In a milestone ruling the Apex court toured world jurisprudence.  It went on to point out that the pivotal place for the right of expression enjoyed in the USA is not shared in many countries including the likes of Canada, India, the UK and Australia. 

 

The bench said, “The First Amendment does not tolerate any form of restraint. In the US, unlike India and Canada which also have written Constitutions, freedom of the press is expressly protected as an absolute right The US Constitution does not have provisions similar to Section 1 of the Charter Rights under the Canadian Constitution nor is such freedom subject to reasonable restrictions as we have under Article 19(2) of the Indian Constitution.”

 

Examining the law from the Indian context the bench said, “Apart from balancing it makes the media know where they stand in the matters of reporting of court cases. 

 

To this extent, the discretion of courts under common law contempt has been reduced to protect the media from getting punished for contempt under strict liability contempt. ….Thus, narrowly focussed prior restraints are provided for, on either a statutory or judicial basis.”

 

No judge in the system has ever tinkered with the freedom of the expression without a caveat.  It is indeed a misfortune that while India runs to the USA for its eating style and lesser peripheral culture similarities,

we have to find a bold attempt to go the whole way for freedom of expression and give it the prime place it deserves to counter balance forces that  are out there to determine what is good for society. 

 

The bench itself reasoned, “Freedom of expression is one of the most cherished values of a free democratic society. It is indispensable to the operation of a democratic society whose basic postulate is that the government shall be based on the consent of the governed.”

 

In its ruling the Apex court pointed out and if I may add sadly, “It must not be forgotten that no single value, no matter exalted, can bear the full burden of upholding a democratic system of government.

Underlying our Constitutional system is a number of important values, all of which help to guarantee our liberties, but in ways which sometimes conflict. 

 

Under our Constitution, probably, no values are absolute. All important values, therefore, must be qualified and balanced against, other important, and often competing, values.”

 

I would believe that the local court had far out reached the width of power stated by the Apex court but that will wait for another day.

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

DRT Solutions Weekly Mail – 384^th Issue dated 18^th September ’15

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

(1) Ordinance in Cheque Bounce Case  

The following news article is self explanatory:-

Nod for Ordinance in Cheque Bounce Cases

Published: 17th September 2015 06:29 AM

Last Updated: 17th September 2015 06:29 AM

http://www.newindianexpress.com/business/news/Nod-for-Ordinance-in-Cheque-Bounce-Cases/2015/09/17/article3032043.ece

NEW DELHI: The  Government on Wednesday approved promulgation of an ordinance for the second time to make prosecution easier in cheque bounce offences by allowing filing of cases where it is presented for receiving payments.

“The Union Cabinet, chaired by Prime Minister Narendra Modi, has given its approval for the proposal to promulgate the Negotiable Instruments (Amendment) Ordinance, 2015,” an official statement said.

There are an estimated 18 lakh people facing cheque bounce cases across the country.

Negotiable Instruments (Amendment) Bill, 2015 was passed in the Lok Sabha in May, seeking to overturn a Supreme Court ruling of 2014 which said that the case has to be initiated where the cheque-issuing branch was located.

However, it could not be approved by Rajya Sabha, necessitating an ordinance.

The statement said that the clarity on jurisdictional issues for trying cases of cheque bouncing would increase the credibility of the cheque as a financial instrument.

“This would help trade and commerce in general and allow the lending institution, including banks, to continue to extend financing to the economy, without the apprehension of loan default on account of bouncing of a cheque,” it added.

In view of the urgency to create a suitable legal framework for determination of the place of jurisdiction for trying cases of dishonour of cheques under section 138 of the Negotiable Instruments (NI) Act, the government has decided to amend the law through the Negotiable Instruments (Amendment) Ordinance, 2015, it said.

“The objective is to ensure that a fair trial is conducted keeping in view the interests of the complainant by clarifying the territorial jurisdiction for trying the cases for dishonour of cheques,” it added.

Section 138 of the NI Act deals with offence pertaining to dishonour of cheque for insufficiency etc, of funds in the drawer’s account on which the cheque is drawn for the discharge of any legally enforceable debt or other liability.

(2) Complaint against PO DRT Chandigarh  

The following news article is self explanatory:-

Complaints marked to DRAT: Fin min to HC

Additional Solicitor General of India, Satya Pal Jain, informed the court that as per rules, the government before proceeding further, had to first seek comments of the DRAT in the complaints about any officer of the DRT.

http://indianexpress.com/article/cities/chandigarh/complaints-marked-to-drat-fin-min-to-hc/

The Union Finance Ministry Wednesday informed the Punjab and Haryana High Court that it had sent the complaints received about misbehaviour and financial irregularities carried out by Harcharan Singh, presiding officer of Debt Recovery Tribunal (DRT)-I, Chandigarh, to the Debt Recovery Appellate Tribunal (DRAT) in New Delhi for comments.

Additional Solicitor General of India, Satya Pal Jain, informed the court that as per rules, the government before proceeding further, had to first seek comments of the DRAT in the complaints about any officer of the DRT. Jain further informed the court that as soon as the finance ministry received comments from the DRAT, it would take further action in the case as per law.

However, answering the court’s query about the possibility of Harcharan Singh’s transfer from Chandigarh to some other station, Jain informed that as per rules, Harcharan Singh had been specifically appointed as presiding officer of DRT-I and he could not be transferred to another place. DRT-I hears cases related to Haryana, Chandigarh and Himachal Pradesh. On this, the division bench comprising Justices S K Mittal and Mahavir Singh Chauhan ordered the finance ministry to submit a report in the case by the next date of hearing on October 20.

On Wednesday, the high court’s Registrar Vigilance also took some more time from the court to submit his preliminary inquiry report in the case after interacting with the DRT Bar Association’s members who had levelled various allegations against Harcharan Singh.

DRT Bar Association members had from July 1 to July 7 refrained from work in their protest against Harcharan Singh. The members had alleged that Harcharan Singh was not only in the habit of misbehaving with the advocates but also with various senior bank officers after summoning them and his attitude was vindictive against them. The high court had earlier ordered that no bank officials would be called in DRT.

DRT Solutions Weekly Mail – 383^rd Issue dated 11^th September ’15

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

(1) Kingfisher Lenders approach DRT to Attach Mallya’s Share in UB City  

The following news article is self explanatory:-

Kingfisher Airlines lenders approach DRT to attach Vijay Mallya’s share in UB City

Led by State Bank of India (SBI), lenders to Kingfisher Airlines (KFA) have approached the debt recovery tribunal (DRT) to attach Vijay Mallya’s share of UB City in Bengaluru...

By: Shayan Ghosh | Mumbai | September 3, 2015 12:43 AM

http://www.financialexpress.com/article/industry/companies/fe-exclusive-kingfisher-airlines-lenders-approach-drt-to-attach-vijay-mallyas-share-in-ub-city/129672/

Led by State Bank of India (SBI), lenders to Kingfisher Airlines (KFA) have approached the debt recovery tribunal (DRT) to attach Vijay Mallya’s share of UB City in Bengaluru, bankers aware of the move told FE.

According to a senior banker, the property is valued at Rs 500 crore, of which Mallya’s share would be worth around Rs 160 crore. “Although this would not cover the value of our loans, we would still like to recover some portion of it,” the banker said. UB City’s website says it has a total built up area of 16 lakh sq ft and comprises UB Tower, Kingfisher Plaza, Concorde, Canberra & Comet Blocks.

That apart, a banker said that lenders have moved DRT in Bengaluru to attach Rs 1.7 crore of dividends that Mangalore Chemicals Ferilisers (MCF) paid United Breweries Holdings (UBHL), Kingfisher Finvest India. As on June 2015, UBHL and Kingfisher Finvest own 15.05% and 2.01%, respectively, of MCF.

“All attempts to recover dues from Vijay Mallya are being made but he is thwarting our attempts to take over his properties by seeking adjournments in courts,” the banker said.

Set up to assist banks recover its dues, the DRTs have not been an effective tool owing to the huge burden of cases. RBI governor Raghuram Rajan had said the amount recovered from cases decided in 2013-14 under DRTs was Rs 30,590 crore while the value of loans sought to be recovered was Rs 2.36 lakh crore.

Thus, only 13% of the outstanding NPAs in the tribunals were recovered in FY14.

According to RBI data, loans worth more than Rs 2 lakh crore were pending at 33 tribunals till FY14, up from Rs 1.43 lakh crore in FY13.

Meanwhile, bankers’ attempts to take possession of Kingfisher Villa in Goa are stuck in a judicial tangle; United Spirits claimed it had been a tenant since 2005 and therefore, banks could not sell the property without its approval.

United Spirits Limited (USL) took the consortium to Mapusa Civil Court in Goa citing Portuguese Civil Code and requesting the court to block the auctions. The Goa bench of the Bombay High Court had granted its nod to the lenders to take possession of Kingfisher Villa last year.

Meanwhile, SBI’s efforts to track down properties owned by Vijay Mallya through a detective agency yielded no results as detectives were unable to trace any property registered in his name.

The detectives looked for properties and found that none were registered in his name and even his residence is registered in someone else’s name and he is registered as a tenant.

Kingfisher, which has not flown since 2012, has dues of over Rs 7,000 crore to a consortium of 17 bankers who have been trying to recover their dues by selling securities pledged by the firm. These included real estate and shares in multiple group entities.

Strings attached:

* UB City is valued at Rs 500 cr, of which Mallya’s share would be worth around R160 cr
* Property has a total built-up area of 16 lakh sq ft
* Lenders seek Rs 1.7 cr of dividends that MCF paid to UBHL, Kingfisher Finvest
* UBHL and Kingfisher Finvest own 15.05% and 2.01%, respectively, of MCF

(2) Trial in Criminal Cases

The following news article is self explanatory:-

Process of trial of criminal cases in India
India September 2 2015

Courtesy - Vaish Associates Advocates

http://www.lexology.com/library/detail.aspx?g=7e8a100a-6593-414f-a2e3-b70fcd13b016

India has a well-established statutory, administrative and judicial framework for criminal trials. Indian Penal laws are primarily governed by 3 Acts:

1. The Code of Criminal Procedure, 1973 (Cr.P.C.);

2. The Indian Penal Code, 1960 (IPC);

3. The Indian Evidence Act, 1872 (IEA).

Cr.P.C. is a comprehensive and exhaustive procedural law for conducting a criminal trial in India, including the manner for collection of evidence, examination of witnesses, interrogation of accused, arrests, safeguards and procedure to be adopted by Police and Courts, bail, process of criminal trial, method of conviction, and the rights of the accused for a fair trial. The procedure for a criminal trial in India, is primarily, except as otherwise provided, governed by The Code of Criminal Procedure, 1973 (Cr.P.C.). IPC is the primary penal law of India, which is applicable to all offences, except as may be provided under any other law in India. IEA is a detailed treaty on the law of “evidence”, which can be tendered in trial, manner of production of the evidence in trial, and the evidentiary value, which can be attached to such evidence. IEA also deals with the judicial presumptions, expert and scientific evidence. There are certain other laws, which have been enacted to deal with criminality in special circumstances.

It is also important to note that India follows the adversarial system, where generally the onus of proof is on the State (Prosecution) to prove the case against the accused, and until and unless the allegation against the accused are proved beyond reasonable doubt, the accused is presumed to be innocent. In certain exceptional cases, which may relate to terrorism, etc., the onus of proof has been put on the accused person, who claims to be not guilty.

India has a highly developed criminal jurisprudence and prosecution system, supported by judicial precedents, however, there may be certain issues or concerns relating to the execution of the same by Police and implementation by Judiciary. The courts in India, particularly High Courts and Supreme Court have been proactively guarding the rights of the accused. Even Article 21 of the Constituion of India has been interpreted in a highly dynamic manner to protect the rights, life and liberty of the citizens, by also incorporating the principles of natural justice.

By the flowchart hereinbelow, an attempt is being made to make the reader briefly understand the process of criminal investigation and trial in India, as a lot of foreign companies and Ex-pats are coming to India, and due to unfortunate circumstances, they may, at times find themselves embroiled in unnecessary criminal cases.

To appreciate the process of Indian criminal law, it is necessary that to understand following important terminology:

1. Bailable Offence, means an offence, which has been categorized as bailable, and in case of such offence, bail can be claimed, subject to fulfilment of certain conditions, as a matter of right under Section 436 of the Cr.P.C. In case of bailable offences, the Police is authorised to give bail to the accused at the time of arrest or detention.

2. Non-bailable Offence, means an offence in which the bail cannot be granted as a matter of right, except on the orders of a competent court. In such cases, the accused can apply for grant of bail under Section 437 and 439 of the Cr.P.C. It is important to note that the grant of bail in a non-bailable offence is subject to judicial discretion of the Court, and it has been mandated by the Supreme Court of India that “Bail, not Jail” should be the governing and guiding principle.

3. Anticipatory Bail, under Section 438 of the Cr.P.C., means that a person who apprehends arrest on a wrong accusation of committing a non-bailable offence, can apply before a competent court for a direction to police to immediately release such a person on bail in the event of arrest. However, the grant of anticipatory bail is discretionary and dependant on the nature and gravity of accusations, the antecedents of the applicant and the possibility of the applicant fleeing from justice.

4. Cognizable Offence/case, has been defined under Section 2 (c) of Cr.P.C., as an offence/case in which a Police Office can arrest without a warrant.

5. Non-cognizable Offence/case, has been defined under Section 2 (l) of Cr.P.C., as an offence/case in which a Police Officer has no authority to arrest without a warrant.

6. Whether an offence/case is bailable or not bailable, and cognizable or non-cognizable, has been qualified under the 1st Table of the 1st Schedule of Cr.P.C., which relate to the offences under IPC.

7. F.I.R (first information report), is formal recordable of a complaint, by police in case of commission of a cognizable offence, and can be considered as a first step in the process of the investigation of a cognizable offence by Police.

8. The Table II of the 1st Schedule of Cr.P.C., gives a general guideline to determine whether an offence is bailable, nonbailable, cognizable or non-cognizable. The criteria in the table, is applicable in those cases which are silent on this aspect. For easy understanding, the following criteria may be understood: 

9. The criminal investigation process and prosecution mechanism in India, can be started in any of the following manner:

   1. On complaint /reporting /knowledge of the commission of a cognizable offence, any police officer, even without the orders of a Magistrate, can investigate the cognizable case. [Section 156 (1) of the Cr.P.C.]

   2. In case of failure or inaction of a police officer to investigate a cognizable offence, a criminal complaint can be filed before a Magistrate under Section 190 of Cr.P.C., for taking cognizance of such offence, and on such complaint, the Magistrate himself can take cognizance of the case and do the enquiry, or in the alternative under Section 156 (3) of the Cr.P.C., order Police to register an F.I.R and investigate the offence.

   3. In case of non-cognizable offence, Police is not obliged to investigate, and the judicial process can be started by filing a criminal complaint before the competent court, under Section 190 of the Cr.P.C. 

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DRT Solutions Weekly Mail – 382^nd Issue dated 4^th September ’15

(1) Appointment of Bank Officials in DRTs  

The following news article is self explanatory:-

Appointment of bank officials to DRT posts raises eyebrows

TNN | Sep 1, 2015, 09.03 AM IST

http://timesofindia.indiatimes.com/city/visakhapatnam/Appointment-of-bank-officials-to-DRT-posts-raises-eyebrows/articleshow/48753056.cms

VISAKHAPATNAM: In a move that raises serious concerns about the independence, fairness and impartiality of the Debts Recovery Tribunal (DRT), significant cadre-based posts at DRTs are being filled up by bank officers on deputation rather than by DRT staff. Not only is this preventing the existing staff from getting promoted but also raises the question of neutrality because banks, which are usually the complainants in DRT cases, are also taking up the role of debt recovery.

At the DRT, which comes under the Union finance ministry, disputes related to home loans and other property related loans worth Rs 10 lakh and above are settled and cases are mostly filed by banks and financial institutions. The DRTs came into existence in 1993 as a suitable mechanism to reduce the burden of bank cases on civil courts.

Each DRT is headed by the presiding officer or chairperson (judge). The other DRT officials include a registrar, one assistant registrar, two recovery officers and one section officer, a private secretary and recovery inspector.

However, DRT staff round the country (33 DRTs in India) is upset at the recruitment of 'outsiders' from banks. A DRT staffer, requesting anonymity, said, "Even though the private secretary and recovery inspectors can become assistant registrar or section officer, they are not getting a chance to get promoted as outsiders are being appointed on deputation from banks to the posts of five key DRT officials. Just like the Indian Bank Association prohibits outsiders from being appointed in various banking posts, similarly, DRT staffers must get key posts up to the level of registrar either by promotion or by merit."

"Since it is banks that file cases, banks become a party before the DRT presiding officer. The order of the presiding officer has to be implemented by the recovery officer. But if the recovery officer is also from a bank, the recovery proceedings may not be fair, unbiased and independent and would mean anomaly of law," added senior advocate and Forum of Legal Professionals president Kuppili Muralidhar.

According to advocates, around 50-60 new cases are filed at the Vizag DRT per month. The Vizag DRT does not have a presiding officer since December 31, 2014 and once a month a presiding officer from Kolkata comes to settle the pending cases.

As per guidelines given in a Supreme Court judgment in the Union of India versus DRT Bar Association in January 2013, Supreme Court justices DK Jain and HL Dattu had said the judgment pertaining to the appointment of recovery officers and establishments of new Debt Recovery Appellate Tribunals should be implemented at the earnest, added the advocate.

(2) DRTs Unable to Solve NPAs Problems  

The following news article is self explanatory:-

Huge build-up of NPAs: Why debt recovery tribunals are in no shape to perform

30 Aug, 2015, 09.07AM IST

http://economictimes.indiatimes.com/industry/banking/finance/finance/huge-build-up-of-npas-why-debt-recovery-tribunals-are-in-no-shape-to-perform/articleshow/48724934.cms 

 

In 1992, after the Harshad Mehta securities scandal — in which the broker used bank funds to rig up stocks — almost all banks faced a huge build-up of non-performing assets (NPAs).

Various committees recommended that it is necessary to have separate tribunals for recovery of bank dues. The civil procedure code does not apply to these debt recovery tribunals (DRTs). Though the DRT Act was passed in 1993, till 1995 not a single tribunal was established. In 1995, only one tribunal was established in Bengaluru and, subsequently, 38 DRTs and only five debt recovery appellate tribunals (DRAT) have been established in India.

Thousands of bank recovery suits were transferred to DRTs from civil courts. Since inception, the DRTs did not have adequate infrastructure. Looking at the current pile-up of cases, we require at least 200 DRTs and about 25 DRATs.

In and around 2002 or so, the government felt that DRTs are not working and therefore The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (Sarfaesi) was passed. The same DRTs were given exclusive jurisdiction to attend to appeals under section 17 of the Act.

The tribunals hardly get time to attend to these cases. It is a real tragedy especially in view of the fact that bank gross NPAs have crossed Rs 3 lakh crore. Currently a suit for recovery in DRT takes more than five years.

Every day hundreds of appeals are filed at DRTs. As per the DRT Act, a recovery certificate must be issued within six months and appeals to be decided by 120 days; in reality it is only a cry in the wilderness.

There are ways of expanding the DRT system quickly. DRT judges should be chosen from amongst young bank officers, say, holding a position of DGM rank with a law degree. On completion of their term, they should be elevated on priority in banks. The second issueis that of lack of infrastructure such as premises, stenographers, administrative staff, computers and the like. This can be easily solved if each bank provides an area of 5,000 to 10,000 sq ft from their buildings.

Authorities are aware of this miserable condition in respect of recovery but definitely lack the only reason Recovery of public is being delayed, needs to be addressed at the earliest, otherwise tribunals meet the fate of cases in courts. If a will, there is always a way, but in this case where is the will?

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DRT Solutions Weekly Mail – 381^st Issue dated 28^th August ’15

(1) Video Recording of Court Trials  

The following news article is self explanatory:-

Law Ministry Proposes Video Recording of Court Trials

By Kanu Sarda

Published: 23rd Aug 2015 07:20:53 AM

http://www.newindianexpress.com/thesundaystandard/Law-Ministry-Proposes-Video-Recording-of-Court-Trials/2015/08/23/article2988161.ece

NEW DELHI:The NDA government is set to introduce audio-video recordings of court hearings to enhance transparency in the judicial process. However, India won’t be the first country to record trial proceedings as 45 countries, including the US and the UK, already do so.

The government is in talks with the e-Committee of the Supreme Court to start audio-video recordings of court proceedings not only in the apex court, but in subordinate courts as well. The issue was raised in the meetings of Advisory Council of National Mission for Justice Delivery and Legal Reforms last month, in which the nitty-gritty of the project was discussed at length.

According to the ministry’s proposal, “Allowing such recordings can contribute to transparency of court processes by allowing a precise record of the proceedings and at the same time discouraging improper conduct in courts and wastage of court time. The efficiency of courts can also be enhanced by maintaining standard system generated formats of routine judgments and orders, particularly in civil cases, which may be used by courts for quick delivery of judgments.”

A proposal to include audio-video recordings in phase II of the e-Courts Project was placed before the e-Committee of the Supreme Court by the Ministry of Law and Justice earlier this month.

The phase II of the project was approved by the Union Cabinet last month. In the first phase, the government had computerised all the courts across the country, set up local area networks and connected these courts with the national judicial data grid.

Currently, litigants can access case status information of over 4.76 crore pending and decided cases and approximately one crore orders/judgments in over 13,000 district and subordinate courts.

Online availability of case data imparts transparency to the functioning of courts and facilitates easy access of data to lawyers and litigants.

Apart from bringing in transparency in the judicial process, the other aim of government is to discourage witnesses from retracting their statements as re-recording of witness statements often leads to unwarranted delay in trials and adds to the pendency list.

There are over 3.2 crore cases pending in various Indian courts. Of this, almost 2.8 crore are pending in subordinate courts alone, as per the latest data by Ministry of Law and Justice.

In July, for the first time in the history of Indian judiciary, the Calcutta High Court recorded court room proceedings on a directive by Justice Aniruddha Bose.

Justice Bose’s direction came on persistent pleas by advocate Deepak Khosla, who had been trying to convince the judge to order a video recording so that there is incontrovertible evidence of conduct of the counsel on the other side.

According to Khosla, he was being subjected to constant heckling and abuses inside the court room and recording could prevent diminution of the standing and authority of the court. In 2010, he had also petitioned Delhi High Court to allow audio-video recording of his case but his plea was not accepted.

According to Khosla, video recordings will have a one-time cost of Rs 4 lakh per court, whereas for audio recordings it will be only Rs 50,000.

Camera Courts

Countries that allow audio-video recording in courts

USA

UK

Italy

Sri Lanka

France

Germany

UAE

(2) Bold Reforms in Bank Capitalization Needed  

The following news article is self explanatory:-

Bank capitalisation: It’s time to undertake bold reforms to deal corporate insolvency

August 26, 2015, 6:31 AM IST

By Rana Kapoor

http://blogs.economictimes.indiatimes.com/et-commentary/bank-capitalisation-its-time-to-undertake-bold-reforms-to-deal-corporate-insolvency/

Over the last 18-odd months, against the backdrop of a steady turnaround in India’s macroeconomic landscape, banks have been concerned by the asset quality as depicted by overleveraged corporate balance sheets. Weak credit underwriting criteria, past pressures on banks to lend to infrastructure, suboptimal use of corporate debt restructuring mechanisms, and inadequate board and management governance in some public sector banks (PSBs) have contributed to this problem.

Policymakers have now turned their attention towards financial assistance and restructuring of loans for corporate entities, along with raising risk capital requirements of banks. These stopgap measures are required to provide an interim relief, and are crucial for alleviating the stress on the balance sheets of banks.

The government’s commitment to infuse capital of Rs 700 billion over the next four years, with Rs 250 billion injected this fiscal, helps to provide some conviction. The decision to distribute this tranche between poorly capitalised banks, large banks and better performing banks will ensure performance improvements.

Clearing project backlogs to free up capital from banks is helpful. As in June 2015, 265 projects with a capital investment of Rs 9.27 trillion have been cleared by the project monitoring group. This needs to be accompanied by revised financial closures and project completion for risk alleviation.

In the medium-to-long run, PSBs will not have the appetite to keep absorbing restructurings. The government, on its part, lacks the fiscal headroom to keep injecting regular shots of capital.

It’s time for undertaking bold structural reforms in the area of corporate insolvency to create safety nets. While India has been incrementally dismantling the barriers to entry, it has conceived a safe route for firms to exit. Concomitantly, India’s rank in World Bank’s ease of doing business index for resolving insolvencies is languishing at 137 out of 189, with 4.3 years required by creditors to recover their difficult loans.

An effective insolvency mechanism that allows debtors to explore rehabilitation through liquidation or restructuring, and facilitates transparent discovery and pricing of collateralised securities and business assets for lenders, is the need of the hour.

At present, in absence of a comprehensive law on insolvency, it is dealt by three Acts: the Companies Act, the Sick Industrial Companies (Special Provisions) Act (Sica), and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (Sarfaesi) Act. The laws are complex, fragmented and outmoded, leading to a cumbersome procedure of liquidation and revival.

Sica’s applicability is partial, covering manufacturing companies. Moreover, the provisions are often misused by filing a reference with the Board for Industrial & Financial Reconstruction (BIFR), extending the proceedings mainly to avoid credit enforcement.

To limit the misuse of Sica, the government in 2002 enacted the Sarfaesi Act that gives powers to banks and financial institutions to liquidate longterm assets of defaulting companies.

However, the Sarfaesi Act doesn’t protect unsecured creditors. Corporate debt restructuring is applicable to companies with debt exposure of Rs 10 crore or more. So, overhauling the corporate insolvency system and implementing the bankruptcy code promised in the Budget are imperative.

The recent coal mine auctions, spectrum reallocation and unclogging of stalled infrastructure projects mean a mammoth commitment of capital funds by businesses. A possibility of failure will have adverse consequences.

To safeguard against such a situation, the broad contours of a bankruptcy law should address these themes:

>

A statement regarding impending bankruptcy should be allowed from either the lender or the company itself.

>A strict timeline (3-6 months) should be specified as a period for completing restructuring negotiations between the company and lenders.

>There should be a corrective plan to preserve the value of the underlying assets, lenders’ loans, and to let the enterprise to continue with its business.

>If no agreement is reached and the business looks unviable, the company should be closed and a liquidator should auction the assets and repay bankers/stakeholders of whatever is left.

>

The envisaged framework for the revival and rehabilitation of micro, small and medium enterprises can be subsumed under the bankruptcy law.

>A swift way of liquidating unviable units to recover assets is as critical as quick bankruptcy-related rejigging.

The bankruptcy law has long provided an important legal-cum-financial architecture in market economies. It’s time to codify bankruptcy in India.

(The writer is MD and CEO, Yes Bank)