DRT Judgments Favourable to Borrowers and Guarantors – Now Full text of such
Judgments is being provided on this Web Site with Important Portions marked in Red
2013 STPL(Web)54SC, Union of India vs DRT Bar Association –
decided on 22.01.13
Extract
from Para 11 is reproduced below:-
Our contentions past 8 years regarding
OA Dismissal (under certain conditions) in DRTs have now been proved by the
judgment of Patna High Court which has been
reproduced in full on this web site vide link
http://www.drtsolutions.com/OA_Dismissal.htm which
also gives the history of our fight for this issue past 8 years. There are
several other contentions which we are fighting past 24 years (e.g.
counter-claim, perfect trial in DRTs, etc) will also be proved with passage of
time. We are not surprised because the Indian Judiciary is ranked 74th
in the world i.e. there are 73 countries which are having better
judiciary . As per Justice Krishna Iyer in 1988, we are 200 years
behind. The challenge is to the Bar Counsel of India, Law Colleges,
Advocates, Judges and the common men. The entire democracy depends on
how soon Indian Judiciary is improved. The present Govt and Political
Parties don't want as they prefer to continue the British System which
was just to keep the public as their servants and loot the country
whereas the Democracy aims at making the public as master and Public
Officers as Servants. The public will have to fight for real freedom.
The silver lining is that the persons like Swami Ramdevji, Anna Hazare,
Kejriwal have spearheaded this fight. Technology is also helping e.g.
400 TV Channels, more than 70 crores mobiles, increasing use of
Internet, growing Social Media etc. The DRT litigants constitute a
knowledgeable and competent public by whose efforts the DRTs will
definitely improve and the model thus created in DRTs will impact the
civil courts.
DRT Judgments Favourable to Borrowers and Guarantors – Now Full text of such
Judgments will be provided on our Web Site with Important Portions marked in Red
For reference of such judgments please click DRT Judgments Favourable / Useful to Borrowers
27.07.12 -
SC Notice to Centre on bringing Tribunals under One Ministry- DRT Solutions Weekly Mail - 220th
A news
item in the internet edition of Times of India dtd 25.07.12 is reproduced
below:-
SC notice to Centre on bringing tribunals under one ministry
Dhananjay Mahapatra, TNN Jul
25, 2012, 02.44AM IST
NEW DELHI: Litany of tribunals set up under diverse ministries to deal with a
slew of issues — ranging from environment to income tax — has resulted in lack
of uniformity in their functioning, so much so that members appointed to decide
cases were not qualified to practice in them.
A Supreme Court bench of Justices A K Patnaik and Madan Lokur issued notice to
the Centre — on the basis of a PIL filed by the Madras Bar Association — that
gave a direction to the Union government to bring all tribunals under the
administrative aegis of the ministry of law and justice.
The PIL filed through advocate Nikhil Nayyar said Competition Commission of
India (CCI) and its Appellate tribunal along with Company Law Board came under
the ministry of corporate affairs, while Copyright Board functioned under the
HRD ministry.
"Intellectual Property Appellate Board was under the ministry of industry and
commerce, while Customs, Excise and Service Appellate Tribunal, Debt Recovery
Tribunal and its Appellate Tribunal, and Securities Appellate Tribunal were set
up under the aegis of the ministry of finance," it said.
Since the tribunals were not set up under one administrative control, there had
been great diversity in the functioning of these grievance redressal forums, it
said.
"First, the qualification of members (of these tribunals and boards) is not
uniform. In many tribunals, 'administrative' or 'technical' members do not even
require a law degree. This has resulted in a curious situation where 95% of the
'technical' members will not be allowed to practice before the tribunal, but
will be able to sit on its bench," senior advocate Arvind Datar said arguing for
the petitioner.
The retirement age of the members were also not uniform, it said and complained
that the administrative ministries have adopted a step-motherly treatment to
these tribunals as far as providing infrastructure and staff was concerned.
Besides, the government had never carried out judicial impact assessment while
enacting a new statute resulting in defeating the purpose of creating tribunals,
which was to reduce pendency.
The apex court had recently taken exception to the manner in which government
had treated the National Green Tribunal (NGT), which was woefully short of
office space, staff and residential accommodations. Peeved over lack of basic
amenities, two judicial members of NGT resigned from their posts.
The PIL said that government had paid scant regard to two judgements of the apex
court - the 2010 judgement in R Gandhi case and 1997 judgement in L Chandra
Kumar case - that mandated all tribunals be brought under the aegis of the
ministry of law and justice.
27.07.12 -
Bank (Secured Creditor) asking other Bank to freeze Account of a
running Industrial Unit is Illegal – Remedy – Injunction Suit - DRT Solutions Weekly Mail - 220th
One
of our clients informed the following:-
(a) The
secured creditor Bank ‘A’ had initiated recovery action under SARFAESI Act. Our
client continued running his industrial unit through account in another Bank
‘B’. The Bank ‘A’ asked Bank ‘B; to freeze the account.
(b) We
asked our client to file an Injunction Suit under the Specific Relief Act, 1963.
(c) None
has right, power, authority and jurisdiction to create hurdle in a running unit,
stopping employment to workers etc which are violations of fundamental rights
under the Constitution of India. Court is duty bound to award immediate
injunction (i.e. stay)
20.07.12 - Use of Audio and Video Recordings and other
Technological Tools - DRT Solutions Weekly Mail - 219th
The use of technology brings efficiency better recordings of the facts as
may be seen from the following instances:-
(a)
One
of our clients recorded all the telephone calls which he had with the bank
officials. There are nearly 300 such audio recordings. The same will be
transcribed and used in the pleadings. The CD containing such recordings will be
filed as document.
(b)
Some
times the bank officials demand undue favours such as transfer of money to their
relatives. Details of such transactions as well as the documents must be kept
for future use.
(c)
During appraisal, there are several visits of the bank officials. Audio and
video records of such visits will be valuable document to prove the viability of
the project.
(d)
Telephone talks and visits of the recovery agents must be recorded. Most often
these persons misbehave or use unparliamentary language. One must claim damages
from the bank for such conduct.
(e)
In
most of the cases, the banks get blank documents signed. Record of discussions
and photo of such documents will be useful in the pleadings as documents can not
be allowed in the court of law.
(f)
Audio record of court proceedings and its transcript will be very much useful in
preparing the written arguments.
20.07.12 - Use of Video Conferencing for our Clients - DRT
Solutions Weekly Mail - 219th
Sometimes some of
our clients visit us along with their counsels, fellow directors and
consultants. Video conferencing will be quite useful in reducing the time and
expenses as all such persons need not travel from their place to Indore.
Reliance web world has very good arrangements for such video conferences. The
record and DVDs will be quite useful for review and revisions.
13.07.12
- Beware of Such Advocates who are telling that they have
Intimate Relations with the Judges - DRT Solutions Weekly Mail - 218th
From two of our clients from two DRTs in the country, we have come to
know that certain advocates have been propagating that they have intimate and
personal relations with the judges. One should be careful of such advocates and
it will be better to avoid them due to the following reasons:-
(a)
It may be only a rumour and the said advocate is taking undue
advantage of such rumour.
(b)
Such advocates will not pay any real attention to the legal
aspects and hence the case will have built-in deficiencies which may be
difficult to overcome in future.
(c)
If the advocates and judges are in league, the judgement will
be definitely wrong.
(d)
The litigation is long drawn process and there are several
stages of reviews and appeals. The wrong judgement due to relations will get
reversed in the higher courts.
(e)
Hence in view of above, it will be better to concentrate only
on true fight based on correct facts. It may take time but there will be sure
success at the end of fight.
06.07.12 - Judiciary and Litigation Process in India - DRT
Solutions Weekly Mail - 217th
In USA most of the
suits are decided within 9 months. There is separate ‘Bar Association of Trial
Lawyers’ The work load of the judges is decided in such a mannIer so that he
gets sufficient time during office hours. Each case is thoroughly prepared by
the advocates and everything is put down on paper. All the arguments are audio
and video recorded and the transcript is prepared on the same day. There is no
compulsion on the judge to declare the judgment within a prescribed time. All
out effort and emphasis is on accomplishing the best quality so that ultimate
aim of justice is achieved.
On the other hand,
in India, the suits may take 20 to 30 years and still justice may not be
achieved. Instead of improving the civil courts, the attention was diverted to
form tribunals but now the tribunals are taking 5 to 10 years. In most of the
cases, the justice is not achieved.
In view of above,
we have been emphasizing the importance of perfect pleadings and perfect
disposal on every date. Since this is not possible for the advocates, we have
been asking our clients to be fully involved on every date. Achieving perfect
disposal on every date is the main requirement during the trial. The trial court
or DRT is the first and the last opportunity if one aims at winning the
litigation. Since it is well known that the banks and the financial institutions
will fight upto Supreme Court, Hence we are very careful in choosing our clients
who should have sufficient financial resources to fight and survive till end of
the battle upto the Supreme Court. With such approach only leading judgments may
be achieved and such judgments alone will be useful to other litigants in
future.
It is needless to
mention that functioning of the democracy depends on ‘Competent and Efficient
Judiciary’ otherwise the society will be corrupt and will be ruled by criminals
as none will be afraid of breaking the law. First we need judicial reforms
before any other reforms. With such mindset, we should fight our legal battle in
DRTs.
29..06.12 - Contesting the OAs filed by the Banks - DRT Solutions Weekly Mail
216th
It is observed
that the banks have gone back to filing of the OAs instead of the action under
Securitisation Act. The OAs need to be contested like a civil suit and it will
take much longer time than the SA. Further there is express provision of the
counterclaim. Hence if the case is being handled by an experienced trial lawyer
having intimate knowledge of the CPC and with a strong counterclaim, it will be
extremely difficult for the banks to win the OAs. In past we have dealt with
numerous aspects of the counterclaim in our weekly mails. All those will be very
much helpful to the borrowers and their advocates.
22..06.12 - Indian Banks Rating downgraded from Stable to
Negative by Fitch – SBI, PNB, ICICI Bank, BoB, Canara Bank, IDBI Bank, Axis
Bank, Exim Bank, HUDCO, IDFC & IRFC are involved - DRT Solutions Weekly Mail
215th
Fitch downgrades Indian banks
http://www.deccanherald.com/content/258346/fitch-downgrades-indian-banks.html
New Delhi, June 20, 2012, DHNS :
Credit rating of
SBI, PNB, ICICI, BoB and others turns negative
Fitch Ratings on
Wednesday revised the credit rating outlook of State Bank of India, Punjab
National Bank and nine other financial entities from ‘stable’ to ‘negative’,
while affirming the rating.
The list of other downgraded entities include four government banks (including
an international banking subsidiary of a government bank), two private banks,
two wholly owned government institutions and one infrastructure finance
company.
They include Bank of
Baroda (BoB) and its international banking subsidiary in New Zealand known as
BOBNZ, Canara Bank, IDBI Bank, Axis Bank, ICICI Bank, Export-Import Bank of
India (Exim Bank), Housing and Urban Development Corporation (HUDCO) and
Infrastructure Development Finance Company (IDFC).
The action by Fitch
was consequent to the revision made earlier this week of India’s outlook to
negative.
In a statement Fitch
said: “The outlook revision of the financial institutions reflects their close
linkages with the sovereign by virtue of their high exposure to domestic
counterparties and holdings of domestic sovereign debt.”
Besides two wholly
owned government institutions — Exim Bank and HUDCO have also been similarly
downgraded. The outlook of IDFC and Indian Railway Finance Corporation outlook
has also become negative.
Fitch, however,
maintained that banks continue to have reasonable customer deposit base,
domestic franchises and adequate capital, while the non-banking financial
entities (NBFCs) lack the funding advantage now which puts them more at risk
during times of increased market volatility.
Analysts are of the
view that the cut in the rating outlook may raise the cost of overseas
borrowings for such institutions. The rating agency also said sovereign support
for both the large banks and ‘policy-type institutions’ is expected to remain
strong, with the former benefiting from their large share of system assets and
deposits and the latter from their association with the government.
15.06.12 - Public Sector Banks – Thoughtless Directives from
Delhi - DRT Solutions Weekly Mail - 214th
One of our clients
Mr. Sanjay Jain from Nagpur has sent the following useful information:-
“Public
Sector Banks : Brazen, Quixotic and Thoughtless directives from Delhi
http://www.moneylife.in/article/public-sector-banks---1-with-government-keeping-the-control-who-will-put-in-the-capital/26249.html
June 12, 2012
07:45 AM |
A Banker
The
Department of Financial Services has been overactive in issuing directives.
Worse, DFS is resorting to brazen ways of dictating to PSBs to sponsor
their proposals to the board and get them approved
Notwithstanding the fact of substantial private shareholding
in PSBs and the managerial autonomy
granted to them in 2005, the central government’s power to give direction to
banks in regard to matters of public interest, after consultation with the RBI
derived from the Banking Companies (Acquisition and Transfer of undertaking) Act
1970—in short Bank Nationalization Act 1970—remains intact. The nature of
consultation with the RBI is not clear nor is it clear whether the government
could overrule RBI’s advice in matters where the RBI is professionally
competent. Be that as it may, in the recent past, the ministry of finance,
Department of Financial Services (DFS) has issued a number of directions,
advisories and directives to PSBs, some of which are in contravention of the
2005 Managerial Autonomy granted to PSBs, and they are also not in keeping with
the aim of protecting minority shareholders’ rights as mentioned in the 2005
document. There is thus the potential risk that private shareholders could call
into question some of these directions/ advisories a la TCI against Coal India.
Besides, almost invariably the DFS wants banks to place its letters before the
board of directors within a fortnight, underlying presumption being that the
proposals would be approved without demur by the board where majority of the
directors are nominees of the government.
This is bad enough but more worrisome is that some of
directives/advisories are thoughtless, if not downright quixotic, as would be illustrated with
some glaring examples.
Constitution of
Credit Approval Committee (CAC)
The ministry of
finance, Department of Financial Services (DFS) issued a Gazette Notification on
05 December 2011 under Section 9 of the Bank Nationalization Act, 1970, in
consultation with the RBI, to constitute in each of the nationalized bank a
credit approval committee which is authorised to approve credit proposals of
Rs400 crore in the case of Category A banks with business of Rs3 lakh crore or
more and up to Rs250 crore in the case of other banks. The notification clearly
stated that it is a committee of the board and that it shall have a chairman &
managing director, executive directors who are whole-time directors as also
designated chief general managers (CGMs)/general managers (GMs) as members.
This notification came as a surprise to many banks as they had no prior
indication nor did the government or the RBI consult them though it was not
obligatory to do so.
The banks sought clarifications from DFS on two major issues:
[i] as
the CGMs /GMs are not directors on the board, they cannot be members of a board
committee. More substantively, as they are the officials who recommend
credit proposals, they cannot be on CAC as it would amount to proposers and
approvers are the same at least in part. [ii] Whether the credit approval limit
of Rs400/ 250 crore refers to single borrower or single proposal or for a group.
The DFS did not specifically clarify the position on the
first issue and apparently left it to the banks to keep the CGMs/GMs as
proposers and not members of CAC. On the second issue, DFS clarified—it is worth
quoting, “These powers are applicable to any single proposal placed before the
CAC, irrespective of group or individual exposure as such” (emphasis added). In
a single swipe, DFS thus abolished the concept of exposure limit which is a
prudential norm followed by banks world over with reference to credit risk they
can undertake
vis-a- vis their
net worth, and blew away to the chagrin of RBI prudential norms prescribed by
it. Neither DFS nor the RBI could be more emphatically aggressive in discarding
a well established and prudent concept! Fortunately, banks kept their counsel
and stuck to the credit approval limit, as per borrower. Incidentally the
clarifications do not appear to have been gazetted though they are of
substantial importance.
[B] Setting up
of credit approval committees at the corporate, regional and zonal levels
The DFS sent out
a draft proposal on the above subject on 17 February 2012 asking banks to
comment on the proposal within a week. The proposal involved setting up of CACs
at various administrative/controlling offices to deal with
credit proposals expeditiously for which the CACs will be given specified powers
by the boards of respective banks. In this, and the subsequent letter of 27
February 2012 apparently based on banks’ comments, the powers presently
exercised by officers in the hierarchy as per the scheme of delegation of powers
in each bank was agreed to be retained, and the powers of the CACs at corporate
and other controlling offices were to be prescribed for larger amounts. However,
in reversal of the foregoing, the DFS advised the banks on 03 April 2012 as
follows: “With the setting up of these committees, the powers vested in officers
above the branch level should cease to exist” (emphasis added).
Under the existing scheme of delegation of powers, the
discretionary powers of officials posted at the branches are determined by the
category of branch as per business volume and the grade of officers. Thus, for
example, a rural branch manger may be vested with powers of approval up to say,
Rs 2 lakh
while a metro branch manager may have powers up to Rs100 lakh. Under the DFS
dispensation, the CAC at say regional office could get a proposal for more than
Rs2 lakh from a rural branch and for more than Rs100 lakh from a metro branch.
This is totally incongruous with any rational scheme of delegation! The last
word on the subject is not yet out.”
08.06.12 - Open Violation of Law by Minister of Finance, Ministry of Finance and
POs of DRTs andDRATs - DRT Solutions Weekly Mail 213th
Dr Suresh, Founder
of the ‘Borrowers Rights Forum’ has sent the following news item. Our comments
are as under:-
(a)
The
Supreme Court has ordered that the Tribunals should be transferred from the
control of the parent Ministries to the Ministry of Law.
(b)
As
per Art 141 of the Constitution of India, the law declared by the Supreme Court
shall be binding on all courts within the territory of India.
(c)
As
per the Supreme Court judgment contained in AIR 1971 SC 179, Makhan Lal vs State
of Jammu, the Supreme Court decisions are binding on all States and their
Officers and all persons whether they are parties thereto or not and to all
pending proceedings.
(d)
Despite above as may be seen from the following news release, the Ministry of
Finance as well as the Minister of Finance, the POs of DRTs and the Chairpersons
of the DRTATs continue to openly violate the law declared by the Supreme Court.
(e)
A
writ was filed by the said ‘Borrowers Rights Forum’ in Andhra Pradesh High
Court. The Ministry of Finance has not yet replied to the Hon’ble High Court
despite reminders. Even they are not bothered about the contempt proceedings.
(f)
It
is suggested that all the litigant borrowers and guarantors should unite under
the said forum and send their e-mail supports to Dr Suresh
drcsuresh@gmail.com proposing countrywide actions.
“15”
pib.nic.in
PRESS INFORMATION BUREAU
GOVERNMENT OF INDIA
*****
UNION FINANCE MINISTER ASKS THE
CHAIRPERSONS OF DEBT RECOVERY
APPELLATE TRIBUNALS (DRATs) AND
PRESIDING OFFICERS OF DEBT
RECOVERY TRIBUNALS (DRTs ) TO SUGGEST
WAYS AND MEANS TO
EXPEDITE THE UNLOCKING OF RESOURCES OF
VARIOUS BANKS
New Delhi: Jyaistha 16, 1934
June 06, 2012
The Union Finance Minister
Shri Pranab Mukherjee asked the Chairpersons of Debt Recovery Appellate
Tribunals (DRATs) and Presiding Officers of Debt Recovery Tribunals (DRTs) to
suggest ways and means to expedite the unlocking of resources of various banks
locked in the form of Non Performing Assets (NPAs) etc. The Finance Minister
Shri Mukherjee said that there can be no lending unless there is recovery. But
today, the Banks are facing the problem of increasing NPAs which needs to be
addressed on priority, the Minister added. He said that the Government has
advised the Bankers to closely monitor their NPAs. He further said that the role
of DRTs is all the more important in helping out the banks to deal with the
mounting NPAs/loss assets as they are the part of mechanism for recovery of loss
assets. The Union Finance Minister Shri Mukherjee was addressing the First
Conference of the Chairpersons of DRATs and Presiding Officers of DRTs here
today.
The Finance Minister Shri
Mukherjee asked the Chairpersons and Presiding Officers to deliberate and
discuss in detail during their one-day Conference and give their concrete
suggestions which would go a long way in improving the functioning of DRATs and
DRTs. Along with the Chairpersons of DRATs and Presiding Officers of DRTs, the
Conference was also attended by Shri D.K.Mittal, Secretary, Department of
Financial Services, Ministry of Finance and other senior officers of his
Department.
The Union Finance Minister
Shri Mukherjee said that this Conference is being held at a time when the Indian
economy is facing various challenges. He suggested that he has full faith in
the capacity and abilities of our people as well as in the resilience of the
Indian economy to overcome successfully such challenges. The Finance Minister
Shri Mukherjee said though it is a matter of great concern that there is a slow
down in the GDP growth rate beside having higher current account and fiscal
deficit yet there is no need to press the panic button. He said that he is
confident that through patience, deligence, competence and capacity of our
businessmen, small and medium entrepreneurs, workers and economic experts, we
would be able to overcome these challenges successfully as we have done in the
past many times. Highlighting the positive aspects of Indian economy, the
Finance Minister said that basic fundamentals of our economy are strong, rate of
saving and investment from domestic sectors are also high beside reversal in the
tight monetary policy among others. Therefore, the Finance Minister said that
he is fully confident that the objective of taking the economy back to the path
of higher growth, maintaining moderate rate of inflation, narrowing down the gap
of current account deficit and restricting the fiscal deficit to 2 per cent of
GDP are very much achievable. He said that during the international financial
crisis, the role of banks is very important. He said that due to well placed
regulatory mechanism and its effective and efficient functioning in the country,
our banks were not adversely affected during the international crisis of
2008-09. Rather they helped in minimising the impact of international crisis on
our economy, the Minister added.
The Union Finance Minister said the role
of DRTs is all the more important in helping out the Banks to deal with the
mounting NPAs/loss assets as they are the part of mechanism for recovery of loss
assets.
The Union Finance Minister
Shri Pranab Mukherjee said that DRTs can ensure the effective and speedy
recovery of public money. Keeping in view this important aspect that the
Recovery of Dues due to the Banks and Financial Institutions Act, 1993 (RDDBFI
Act) prescribed that it should be the endeavour of the Tribunals to decide the
case in 180 days, the Minister said. He said that DRTs have not been able to
adhere to this time line. The Finance Minister Shri Pranab Mukherjee said that
it is informed that the pendency of cases in the Tribunals is about 67,000 cases
involving an amount of Rs.136 lakh Crore as on 31.03.2012. He said that this is
a matter of great concern.
The Finance Minister Shri Mukherjee said
that pendency of cases has increased and there is need to increase the pace of
disposal by DRTs. He said that there is delay at times as the Banks
representatives do not submit complete documents or seek adjournments. He said
that there is need for proactive action/approach to be taken by the Banks. He
further said that some of the DRTs may be over burdened due to increased number
of filing of cases or their large jurisdictions. Therefore, the Finance Minister
Shri Mukherjee said that there is a need to look into the territorial
jurisdiction of the existing DRTs. He said that there is also need to
rationalise and if considered absolutely necessary, the setting-up of additional
Tribunals can also be considered.
The Finance Minister Shri Pranab
Mukherjee said that the steps are being taken to remove the bottlenecks and
thereby improve the performance of the DRTs. He said that we are also taking
legislative measures considered necessary. In this regard, he mentioned about
the Bill which has been introduced in the Parliament for amendment of SARFAESI
Act and RDDBFI Act.
The Finance Minister Shri Mukhjerjee
asked the participating officials to give a serious thought to the aspect of
judicial accountability and suggest ways and means to achieve higher
accountability, appropriate control and effective supervisory mechanism. He
further asked all the participants to give a serious thought to the challenges
before them and suggest measures to deal with this situation. The Finance
Minister assured full support of the Government to the practicable
recommendations of the Conference.
***
DSM/Hb
25.05.12
-
e-DRT Project of Govt of India
The Govt of India
has launched e-DRT project for modernization of the DRTs. EoI (Expression of
Interest) document has been published on the web site of DFS (Deptt of Financial
Services) of Ministry of Finance and has been issued to the IT companies having
minimum turnover of Rs. 500 crores with employees of minimum 1000 nos. All
necessary software are to be developed, hardware are to be supplied and the
project implemented and monitored for next 10 years.
With above, the
entire setup of the DRTs will be much more technologically oriented. Accordingly
the litigants and the advocates will be compelled to use modern ICT (Information
and Communication Technology) tools.
We shall be
watching the above development with a view to equip ourselves for the same.
Our Comments
The said IT Company will study the entire
system and working of DRTs and DRATs. At present there are 33 DRTs and 5 DRATs
in India. The ultimate goal is justice to the borrowers and guarantors through
the judicial process. One of the goal is expeditious recovery of alleged dues of
the banks and financial institutions. The said banks and financial institutions
are committing numerous wrong doings by violating the Govt policies and RBI
Guidelines. As a result the borrowers suffer huge loss and damages which they
may claim by way of counter-claim against the OA filed by the lenders in DRTs
under the DRT Act 1993. Alternatively they may claim loss and damages in the
application filed u/s 17 of the Securitisation Act in DRTs. On account of such
counter-claims, the adjudication in DRTs has become highly time consuming. The
proposed e-DRT project will help in cutting down the avoidable delays but
ultimately the lenders will have to work more efficiently and their wrong doings
will come to light much early.
17.07.09 - Balance Sheet of the Borrower & alleged Admission of
Debt - DRT Solutions Weekly Mail – 62nd Issue
One of our clients at Mumbai
has raised a question whether the borrowings shown in the balance sheet amount
to admission of debt. He also made a reference to a judgment of Bombay High
Court. Our comments and precautionary actions to be taken are as under:-
I.
No document including
the Balance Sheet is to be read in isolation. Complete correspondence, facts and
circumstances are to be taken into account and then only the Balance Sheet or
its part can be interpreted.
II.
If the lender has
committed any wrong doing resulting into loss and damages, the incidence of the
said loss and damages are to be considered in working out the debt due.
III.
In the 13th
Issue of our weekly mail dated 8th August 2008, on the topic of
‘Admission in Balance Sheet’ we have already made the comments reproduced
below:-
(a) Whenever copy of any balance sheet is sent to the secured
creditor or is filed in the Court of Law including DRT, it must be clearly
mentioned by way of ‘Important Note’ that:-
“The loss and damages caused to the borrower by the lender is
much more than the amount lent. Hence the figs of the borrowed amount shown in
this balance sheet after due adjustments with the said loss and damages results
in ‘No Debt Due’, rather the borrower is entitled to recover substantial amount
from the creditor. Under these facts and circumstances, the figures of borrowed
amount in this balance sheet can not be considered as admission, if any, of the
claim of the creditor.”
(b) Whenever any action is initiated by the creditor based on the
alleged admission in the balance sheet, reference can always be made to the
above ‘Important Note’.
IV.
The borrower should also
ask for the balance sheet of the creditor to ascertain whether the debt has been
written off or the counter-claim or damage suit is not mentioned. These facts
will contribute towards admission if any of the creditor.
Highlights
& Summary of Our Approach to DRT Litigations for Defence of Borrowers &
Guarantors
All problems of Debts Recovery
Tribunals i.e. DRT, Securitisation Act, ARCIL i.e. Asset Reconstruction Company
(India) Limited, NCLT i.e. National Company Law Tribunal and other courts are tackled by
us and practical solutions provided. Study of this web site will be very useful to the
borrowers and guarantors facing litigation in DRTs. People from all over the
country and abroad are phoning us, then visiting us and getting solutions to their
DRT, Securitisation and related legal problems. Many parties are
approaching us either to draft or to redraft their counterclaims and damages in DRTs. Some
need our advice on all types of DRT matters, Securitisation Act, BIFR, NCLT,
sec. 138 of NI Act relating to dishonour of cheques, IPR matters etc. We have
DRT , BIFR, NCLT and Banking Accounts experts to examine the legal and accounts
as well as documents filed by the banks and financial institutions in DRT and
other court cases. Please visit other pages of this site dealing with all these
aspects and solutions relating to DRT i.e. Debt Recovery Tribunal litigations,
NCLT i.e. National Company Law Tribunal, ADRT i.e. Appellate Debt Recovery
Tribunal, BIFR, NCLT, related legal matters including Counter-claims as well as
legal process outsourcing, knowledge process outsourcing for global clients
through our associates vide joint venture web site
www.usindolegal.com
You are always welcome to approach us anytime for all DRT Problems and
Solutions. We advise advocates on use of latest video and presentation
technology in office as well as in court rooms. The key word for search of our
website is 'drt' or any phrase commencing with 'drt' for which we
are on high ranks globally in all the search engines.
Our Weekly Mails and DVDs are DRT Legal Guide and gold mine of practical
information for the borrowers and guarantors:-
The visitors of this web site particularly Borrowers and Guarantors will be
immensely benefited by our weekly mails, all previous issues from 1st one till
the last one may be viewed by clicking
DRT Solutions Weekly Mail for Borrowers & Guarantors
Separate
web pages have been created to contain these mails in batches of 10 so that
pages open up fast. These
mails are DRT Guide and gold mine of information on current topics giving lot of practical
suggestions and comments. Any new comer to this site must go through all the
weekly mails right from the issue no 1 to the latest. If possible please spread
the reference of this web site and the weekly mail among the persons, borrowers
and guarantors who are the bank victims. These weekly mails are free of cost. If anyone desires to get these mails
regularly, he may write to us for inclusion of his e-mail ID in the regular
mailing list. The weekly mail is issued on every Friday morning before 11 AM. The
particular issue of the weekly mail is first published on the web site and then
mails are sent. These weekly mails have become quite popular among the borrowers
and guarantors in the country as we are getting huge no of mails appreciating
the same. We welcome suggestions for improvements as well as the topics on which more information
is required.
Illegal Deposit of Auction Money - CMD, IFCI, its AGM
(Law) and Recovery Officer (DRT-1), Delhi sentenced to One Month Jail plus Rs.
3.5 lac and Rs. 1.5 lac penalty to be paid out of their pockets:-
The news items are contained in our special 202nd Weekly Mail dated 21.03.12.
The complete order on Jail sentence by the Delhi High Court is contained vide
click
IFCI CMD, AGM(Law) & DRT
Recovery Officer ordered Jail One Month & Fine
This proves our contentions that the Chairman of the banks and financial
institutions must be impleaded as a necessary party for the wrong doings
committed by the banks. Further we must file damages and or counter-claims for
the said wrong doings. The pleadings should be perfect and case contested
perfectly on all dates.
Our Weekly Mail No 200th dated 09.03.12 is
specially important as it gives History and Background of Weekly Mails since 1st
Mail and past three and half years
:-
It will be of tremendous use to everybody particularly those who are visiting this
site for the first time.
We
have no Branch or Authorised Persons except at Indore:-
Our weekly mails are free and those who desire to
get them directly may send their e-mail IDs. Any content of these weekly mail
may be reproduced without our permission provided the source of this web site
and DRT Legal Solutions are acknowledged. It is learnt that some persons are
reproducing extract of these mails in their own names which is not proper. We
have not authorised any such person. We neither have any branch outside Indore
or have any authorised person to represent or act on our behalf. The most
important part of our dealings is empowerment of our clients during the course
of litigation. We provide massive information to our clients. It is learnt that
some persons have started copying our pleadings but they are unable to provide
the finer aspects and the much needed after sales service.
Lack of Management & Technology in
Indian Judicial System – Greatest Cause of Huge Pendency & Utterly Low
Efficiency
- An article by Ram Kishan vide link
Article by Ram Kishan on
Management & Technology in Indian Judiciary
DVDs of the 2nd All India DRT Conference held on 8th and 9th
Jan ’11 are available – these DVDs contain goldmine of useful information to
borrowers, guarantors and their advocates
We are pleased to inform that 5 DVDs and 1 CD of the said
Conference are available at a token price of Rs. 1000=00. This amount is peanut
compared to that spent by the participants who came from far off places like
Cochin, Kolkata, Chandigarh, Chennai etc at their own expenses, stayed at Indore
and paid the participation fee of Rs. 4500=00 per head.
These 5 DVDs are complete video record of the whole
conference and are gold mine of the current information on:-
(a)
Securitisation
Act, important questions and answers, practical aspects of stay and trial in
DRTs,
(b)
Important court
judgments and their applications,
(c)
Court procedures
and critical applications,
(d)
Bank documents
and their inspection,
(e)
Legal maxims and
their applications,
(f)
Important
provisions of Constitution and PILs,
(g)
Present state of
Indian Judiciary, problems and solutions,
(h)
Application of
modern management and technology etc.
We have provided in one CD complete audio record of the whole
conference so that one can listen the same on i-pod. As a whole these DVDs and
the CD provide the most latest and useful knowledge to the borrowers and
guarantors as well as their advocates. The procedure for getting these DVDs is
as under:-
(1)
You may deposit Rs. 1000=00
in our bank account details of which may be obtained by
sending SMS to us.
(2)
Pl inform the particulars of the above
deposit to us by e-mail and by SMS to our mobile no 09691103689
(3)
Pl inform your postal address and telephone
number by e-mail
(4)
The DVDs will be dispatched within a
fortnight
Our Client wins in Securitisation Appeal against 4 Banks in DRT – amount
involved nearly Rs. 90 crores and a tooth & nail fight of 4 years
Entire Judgment reproduced vide link
DRT Orders in favour of Borrowers & Guarantors
(1)
The PO DRT Mumbai in his order dated
29.06.10 in respect of Securitisation Application allowed the
same asking the 4 respondent banks to redeliver possession of the properties
within 4 weeks.
(2)
This has been most historic legal fight in
DRTs for a period of nearly 4 years by law departments of 4 banks against
securitization notices dated 30.12.05 and 02.01.06 for Rs. 64.44 crores and
banking aspects of Representation & Objections, NPA,
Accounts,
Inspection of Documents etc.
(3)
Such consortium of 4 banks losing
Securitisation Appeal fighting tooth and nail for relatively large amount of
Rs. 90 crores is most significant
.
(4)
The party came to us in 2006. We prepared
their damage suit for Rs. 1904 crores which was filed in May 2007. They have been
in touch with us practically every day. They worked hard in implementing our
philosophy of perfect pleadings and perfect trial on every date. At times
they had eloquent fight with their advocates and had to change them. They
attended DRT conference at Indore in May 2008. They spread our message to
their advocates and other suffering borrowers
.
(5)
While on one hand, the said 4 banks have
lost their legal battle for recovery through the tool of Securitisation in
DRT, the party’s damage suit against the banks filed in 2007 is still
continuing wherein the banks are already losing heavily. The case has come
to ‘Striking of defence of the banks’ due to non-submission of documents for
inspection despite repeated court order
.
(6)
This case is a solid proof that a
determined borrower can win against banks in DRT. It demolishes the myth
that the DRTs favour the banks
.
(7)
Such fight proves the power of knowledge
of banking, industry, finance and law. Above all this affirms that in a
democratic country, citizens have adequate powers and protection against the
wrong doings of bueauracracy due to ‘Rule of Law’ being above all
.
(8)
We appreciate the sincere and hard work
done by our client at every moment of time and they rightly deserve such
epoch making victory which will prove to be a mile stone in the history of
banking litigations in the country
.
(9)
The party has sent following mail to us:-
From national flask ind. ltd.
To
ramkishan
ramkishan@drtsolutions.com & ramkishandrt ramkishandrt@gmail.com
Date Wed, Jun 30, 2010 at 6:01 PM
Subject MESSAGE
Kind Attn: Mr.Ramkishanji.
Dear Sir,
We
take this opportunity to thank you very much for your timely guidance /
suggestions during the proceedings of Securitisation Application in DRT.
Because of your guidance, we have succeeded in DRT. The DRT has allowed our
Securitisation Application and directed the consortium bankers to
repossession of the properties. You have given your best guidance for,
1. application for inspection of documents to bring facts on
record,
2. affidavits / rejoinder to put facts on records,
3. other correspondence with the consortium bankers and
,
4. preparing the arguments,
We
once again thank you for your kind support
.
Thanking you,
Yours faithfully,
Our Client settles at less than 5% of dues due to impact of counter-claim against Bank:-
This is just for your information that one of our clients have
settled with the bank for amount less than 5% of the total dues (nearly Rs. 17
crores) vide State Bank of Mysore vs. Akasha Textiles, OA No -
3163/2000 in DRT-II Mumbai. Such settlement
could be possible because of the impact of counter-claim as may be seen from the
client’s mail extract may be seen by clicking
Success & Results of
Counter-claims When
the State Bank of India Mysore can settle for less than 5%, other banks can also
do. Hence if there are wrong doings by the Banks, the borrowers must file the
damages and if there is any move for settlement, it must be kept in view that
the settlement should not be more than 5% otherwise it is better to contest the
damage suit or counter-claim.
Important Victory of Our Client against Bank:-
One of our important clients at Chandigarh who filed damage suit of Rs. 1825
crores against a public sector Bank on 13.01.05 registered an important victory
on 03.03.07 when the Court waived the entire court fee despite all opposition by
the defendant Bank. The alleged dues of the Bank are Rs. 30 crores. Since the
damages are much more than the alleged claim of the bank, no recovery action can
be executed till the said damage suit is finally decided. The usual delay in the
litigation does not affect our client as the damages are increasing day by day
due to interest charges at rate which is much higher than the increase in the
alleged claim of the bank. The said damage suit was drafted by us and all
necessary advice and guidance was provided on all dates of proceedings.
Counter-claim is the only defence for the borrowers against Notice under
Securitisation Act
and or Original Application under the DRT Act:-
Under the present provisions of law,
the only legal defence for the borrowers is
Counter-claim giving quantum of loss and damages suffered due to wrong doings of
the lenders. The pleadings must be prepared by a person having mastery of facts
and mastery of law. The documents such as project report, application for
financial assistance, loan sanction letters, correspondence, balance sheets,
annual reports need to be referred to properly keeping in view the law of
pleadings, law of torts, law of damages, principles of natural justice, bank
nationalization act, constitution of India, Administrative Law, various Supreme
Court Judgments, equity
and good conscience. If you are unable to get such pleadings prepared, our
professional services may be utilized. With our drafting of pleadings, you get
additional advantage of expert advice during course of litigation from beginning
to end. Since our clients are from all parts of the country and due to our
focused attention, you get up to date, complete and exhaustive guidance. All our clients
are having upper hand over the lenders. In many cases the lenders have come
forward to waive total interest and settle at fraction of the principal amount.
In one of the cases the proposal of the lender is to waive the total claim provided
the borrower withdraws the damage claim, which the borrower has declined.
Counter-claim must be prepared much in advance of the Notice under
Securitisation Act or filing of the Original Application under the DRT Act:-
The
counter-claim or damage suit must be prepared much in advance of the recovery
action initiated by the lender. The most appropriate stage is as soon as the
lender declares the unit as NPA. The said counter-claim or damage suit must be
ready before the lender issued Notice under Securitisation Act or files Original
Application is filed by the lender in DRT. With such advance action only, the
counter-claim or the damage suit will attain proper quality standards from legal
considerations. As soon as the legal Notice from the lender under Securitisation
or DRT Act is received the said counter-claim or damage suit is updated,
mentioned in the objections and
after the action u/s 13(4) included in the appeal u/s 17 of the Securitisation
Act. Since prima facie there is no debt
due, the lender can not take any action for the possession of the assets till
the litigation pertaining to the said counter-claim or damage suit is decided by
the court of law.
Winning bank litigations in DRT:-
The first step is perfect pleadings drafted by a
person having mastery of facts and mastery
of law. The borrower must setup his counter-claim in money value based on law of
damages, law of torts and banking laws, DRT Act, law of evidence, civil
procedure code, principles of natural justice, constitution of India etc. In almost all the cases, the counter-claim is much
more than the claim of the lender. These are the condition precedents before
commencement of litigation in DRT. The next important step is thorough
preparation of the case by the borrower as well as his advocate much in advance
of the commencement of the trial in DRT. The borrower and his advocate must
prepare at least 7 days before the date. In case the counter-claim has been
drafted by us, the outcome of the said preparation must be discussed with us on
phone so that our guidance is also available prior to the date. The proceedings
on the date must be properly recorded in the DRT. All the relevant facts must be
obtained much before the arguments and through preparation must be made. No
arguments be held at any stage till all the facts are discovered. Long dates
should be resisted. With proper alertness and vigilance by the borrower who must
work in unison with his advocate in advance will ensure winning bank litigations
in DRTs. It must be understood that the battle is long drawn, time consuming and
expensive. Even after winning in DRT, the borrowe and his advocate will have to
work hard in facing the appeals in ADRT, High Courts and Supreme Court. If the
pleadings are drafted by us, we provide all guidance from DRT to Supreme Court.
Our approach of counter-claim or damage suit against the lenders fully endorsed
by authorities:-
Two leading authorities in law and banking both
having more than 40 years of experience in law and banking have fully endorsed
our approach to counter-claim in DRTs or damage suit against the lenders in
civil courts. You may click the pages
Video Interview - BS Malik, Sr.
Supreme Court Advocate
and
Video
Interview - GC Garg, Ex-Senior Bank Official
which give the contents of the video clips of interview
with them. You
may take out the print and study the same. Listening to the video interview will
be further useful. You may select the clips for replay for discussions with your
colleagues as well as the advocates.
You may obtain the VCDs from us to listen to their views which will
be quite useful to all the borrowers and guarantors as well as to their
advocates. The counter-claim or damage suit against the lenders are the only
legal defence and we specialize in framing such defence. We have handled several
such cases throughout the country. You may contact us on phone to know further
details.
Justice is Supreme. Procedures, Provisions of Law and Machinery of Law have to
aim at getting Justice :-
In a democratic society like ours which is ruled
by Law, the Supreme Court of India has held that Justice is Supreme. Even the
law bends before Justice. The procedures are handmaid of Justice. The natural
corollary is that the complete court machinery like Civil Courts, DRTs, High
Courts and Supreme Court including their Judges exit and have to work only
achieving Justice in each and every case in most efficient manner.
The established judicial process is quite strong provided it is implemented
properly. First stage is the pleadings which should be drawn by the person
having mastery of facts and mastery of law. In the specific legal defence of the
borrowers and guarantors in DRTs, the pleadings must contain the counter-claim.
Then the erring bank authorities including Chairman of the bank should be cross
examined in the witness box again by a competent person having mastery of facts
and mastery of law. If such process is followed, in almost all the cases the
banks will lose and instead of recovery of their claims, they will have to pay
the damages.
Proof by Affidavit in DRT is not sufficient in most of the cases where it calls
for examination of Bank Officials :-
In almost all the cases of our clients, we have
observed that the affidavits filed by the bank officials do not offer complete
proof. Hence the said bank officials including the Chairman and the Branch
Managers need to be examined and cross-examined in the witness box. The
defendants must be vigilant and careful to ask for the same. The cross
examination of the bank officials must be carried out by a person having mastery
of facts and mastery of law. The entire cross examination of the bank officials
must be video taped and submitted as document in form of the CD. Then only the
defendants can be sure to win their cases including the counter-claims. We offer
our professional services in conducting such cross-examination.
Cross Examination
of Bank Officials:-
Many of our clients find that their advocates are
not having sufficient knowledge to cross examine the bank officials like Bank
Managers and Chairmen of the banks and financial institutions and approached us
for such highly specialized service. In fact we are uniquely suited for the same
due to our focussed and specialized knowledge and experience in this field.
Borrowers and Gurarantors
can win in their bank litigations:-
In most of the cases, we have found that if the
counter-claim has been framed properly by a person having mastery of banking
facts and mastery of banking laws and then the bank officials are properly
cross-examined in the witness box so that they admit their wrong doings, the
litigating borrowers and guarantors can win their cases. Most of our clients are
moving in this direction. As
a whole you may approach us for all DRT Problems and Solutions. Solution to any
problem of debtrecovery in DRT is our specialization particularly for the defence of the
borrowers and guarantors.
Counter-claim
can be filed at any stage:-
We have prepared counter-claim even during
winding up of the companies, after the final order of the DRT or at any stage of
the trials in DRTs or ADRTs. We need one and half to two months time for
preparation of counter-claim. If there is no such time available, we devise
legal methods to gain time. Goal of any litigation or legal procedure is
attainment of Justice. We help the borrowers and guarantors to get Justice at
any stage of litigation.
Importance and Essentiality of proper defence
for borrowers and guarantors:-
Whole case can be fought and won only when proper
defence has been made right from the beginning. Such defence should be made by
person having mastery of facts and mastery of law. Here facts refer to those
applicable to the individual case with thorough understanding of banking,
business and industrial finance and their violations as well estimate of loss
and damages based on project report and balance sheets. The law refers to all
the relevant laws applicable to banking and finance right from 1949 as well as
law of torts and damages. We are acclaimed expert and specialized agency to
prepare such defence with uptodate current knowledge due to handling of such
matters from clients all over the country. A phone call will help you in solving
all problems relating to DRT, ADRT, BIFR, NCLT, Securitisation Act etc.
Solution to any problem of debtrecovery in DRT is our specialization particularly for the
defence of the borrowers and guarantors.
Cross-examination of bank officials:-
Evidence and cross-examination of bank officials
including the Chairman and Branch Manger is highly essential. The sole aim is to
get admissions of the wrong doings. Once the wrong doings have been admitted in
the witness box by the bank officials, the borrower/guarantor has won the case
as there is no arguments on admissions even upto the stage of Supreme Court.
Such cross-examination of bank officials is highly technical and it requires
mastery of facts and mastery of law. We have requisite expertise in this arena.
The parties desiring us to conduct the cross-examination, may contact us on
phone for necessary further action.
Supreme Court Judgments:-
Many of our clients and visitors of this site
approach us for Supreme Court and High Court Judgments. We would like to inform them that
judgments are available only on those matters and facts which have been
adjudicated upon. Many of the issues relating to industrial and business finance
have not yet been brought before the judiciary and hence no judgments will be
available on the same. The counter-claims based on the law of torts drafted by
us are being put before the judiciary for the first time. These matters and
facts need to be processed during proper judicial process by way of proper
pleadings, cross examination and arguments. The judgments thus obtained will go
through the process of appeal by the affected party and thus all such cases will
take few years to come before the Supreme Court and then only the final
judgments of the Supreme Court will come. Till then we have to work on the basis
of the fundamental of the law. We are following this approach in tackling all
DRT problems and Solutions whether in DRT, ADRT, High Courts, BIFR, NCLT in
future and Supreme Court.
Other Useful Information:-
As a visitor, if you are not concerned with the
main topic of this web site, you may visit
Other
Topics, Health, Jobs, Social, Projector, Web Publishing
which
you will find highly useful. We are going to enrich this particular page
regularly.
