DRT  Legal  Solutions

(Debts Recovery Tribunal Legal Solutions) is an India based

Law Firm specializing in DRT, Securitisation, Sarfaesi, IBC, NCLT, Borrowers and Guarantors Solutions in Debts Recovery Tribunals,

Pioneers in Counter-claims and Damage Suits based on Law of Torts and Law of Damages 

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Expert in:- DRT, Counterclaim, securitization, debt recovery tribunal, NCLT  matters

 

 

 

Our Comments as on 18.10.13 vide our weekly mail 284th issue vide item no (1) therein reproduced below:-

 

Sec 14 of Securitization Act – Possession – Conditions Precedent, Problems & Suggestions 

Consequent on our views expressed in last weekly mail, there has been lot of comments, feedback and interactions with the recipients of the weekly mail. Most important feedback was from Mr R.P. Agarwal, Senior Advocate who made reference to the latest SC Judgment (Standard Chartered Bank vs V. Noble Kumar decided on 22.08.13)

While we are still working on the said SC Ruling, on face of it, we can say that it will severely affect the small borrowers or those borrowers who do not pay attention to the judicial process right from the stage of receiving notice u/s 13(2).

In respect of remedial measures against the said SC Ruling, the borrower should be adept in the 9 clauses of the affidavit to be submitted by the bank along with the application u/s 14 before the Magistrate. The defence against the said clauses must be built in in the Representation and Objections against the notice u/s 13(2). The borrower must file caveat before the Magistrate just after submitting the said Representation and Objections and must have the liason with the office of the Magistrate so that he secures opportunity to submit his defence against the said 9 clauses of the affidavit. It is needless to mention that all this should be possible particularly due to following environmental factors:-

(a)   There are more than 3 crore cases pending before the civil courts and AP HC sitting judge has said that it will take 320 years to clear the pendency.

(b)   Justice Krishna Iyer has said in respect of judicial system that we are 200 years behind the developed countries.

(c)   UK took 157 years to attain proper working of tribunals and we do not want to learn from their experience.

(d)   The RBI Guidelines since 1976 are being openly violated by the banks. There is scant regard for serious implementation in respect of appraisal, revival and rehabilitation.

(e)   There is single point program only for recovery even to the extent of ignoring principles of natural justice and constitutional rights. To meet such aim, the DRTs were established, the DRTs are not being transferred from Ministry of Finance to Ministry of Law despite 15 years old verdict of SC. The bank officials are being posted as POs and Recovery Officers in DRTs.

(f)    In order to cover up lapses of the banks in genuine appraisal, revival and rehabilitation, attention is being diverted to misuse of public funds, shortage due to NPAs etc. Example is being given to quick and forceful recoveries in developed countries. But no comparison is made to developed judicial systems which efficiently decides equally the claim of the bank as well as the counter-claim of the borrowers. The book ‘Lender Liability and Banking Litigation’(update 2012) published by ‘Law Journal Press, New York’ opens with the sentence ‘Multimillion dollar verdicts against financial institutions have become almost commonplace.’

(g)   Thanks to our constitution, the knowledgeable borrowers who are able to fight against the above adverse environment which is seriously affecting the growth of entrepreneurship in our country. Day is not far when few verdicts in the matter of counter-claims against the banks will alone confirm our contentions that best recovery is out of generation of funds rather than coercive recovery out of the securities. In the meantime, large number of small borrowers will be sacrificed resulting into huge outcry but small recoveries.  

In view of above our suggestions to mitigate against the SC Ruling are as under:-

 

(A) Representation and Objections against the Notice u/s 13(2):- Under the present environment and in the context of the prevailing law as well as the law laid down by the Supreme Court in the said SC Judgment, this becomes most important document. It contains all the points on which the affidavit covering 9 points will be filed by the authorized officer u/s 14 before the Magistrate. It is observed that this document is not being prepared properly by the borrowers. Further in most of the cases, the banks are also not considering and replying the same with due application of mind (as desired by SC in the matter of Mardia Chemicals). Our suggestions are as under:-

(a)   All the wrong doings committed by the bank e.g. under financing, inadequate and delayed working capital, delays in sanction and flow of bank funds, violations of RBI Guidelines, delays and non-implementation of viability studies, delays in revival, rehabilitation and restructuring, impact and responsibilities for the external causes and conditions beyond control of the borrower, real reasons for the defaults committed by the borrowers etc have been thoroughly pleaded in the said Representation and Objections..

(b)   Assessment of the Loss and Damages suffered due to the above wrong doings and impact on the ‘Debt Due’ is included in the said Representation and Objections. In case the said Loss and Damages are more than the amount claimed by the bank, the situation of ‘No Debt Due’ is clearly pleaded in the said Representation and Objections.

(c)   Incidence of ‘NPA’ should be thoroughly questioned based on the relevant RBI Guidelines as well as the internal policies of the bank.

(d)   The claim of the Bank is thoroughly examined and pleaded with reference to the accounts statements submitted by the Bank.

(e)   The details of the securities and security interest created is thoroughly examined and pleaded with reference to the documents executed.

(f)    Copies of the said Representation and Objections should be endorsed to the Chairman of the Bank.

(g)   For the above, whatever documents are needed, the same should be asked for from the bank before submitting the said Representation and Objections.

(h)   Since as per Mardia, the banks are duty bound to reply to the said Representation and Objections with due application of mind within 15 days, the pleadings in the said Representation and Objections should be quite exhaustive so that there is no scope for the bank to say that they had any difficulties in replying with due application of mind. 

Comments:- In the present environment and prevailing law as well as the law recently declared by the SC, the above mentioned Representation and Objection will become highly essential for the following reasons:-

(a)   The application of the bank u/s 14 is to be accompanied by an affidavit duly affirmed by the authorized officer of the bank declaring 9 points viz dealing with:-

(i)    total financial assistance granted and total claim of the bank on the date of filing of the application.

(ii)   Borrower has created security interest over various properties or bank is holding valid and subsisting security interest over such properties and claim of the bank is within limitation.

(iii) Borrower has created security interest over such properties giving details of the properties.

(iv)  Borrower has committed default.

Comments:- If the default is caused due to wrong doings of the bank, that needs to be pleaded in the said Representation and Objections. This needs to be pointed out to the Magistrate based on the Injunction Suit mentioned below.

(v)   Consequent on default, account has been classified as NPA.

Comments:- If the NPA declaration is wrong, that needs to be pleaded in the said Representation and Objections. This needs to be pointed out to the Magistrate based on the Injunction Suit mentioned below.

(vi)  Notice u/s 13(2) served on all borrowers and guarantors.

(vii)Representation and Objections of the Borrower considered with due application of mind and reasons for non-acceptance, if it is there is communicated within 15 days.

Comments:- If the non-acceptance is wrong, that needs to be pointed out to the Magistrate based on the Injunction Suit mentioned below.

(viii)   Borrower has not made any payment despite notice and hence the bank is entitled to take possession u/s 14.

Comments:- The borrowers can make use of this clause suitably.

(ix)      Provisions of this Act and Rules had been complied with.

Comments:- This is one of the most important part of the Affidavit. The borrower should cover the lapses on part of the bank in the said Representation and Objections and put up before the Magistrate at appropriate time. The same be covered in the Injunction suit given below and a later date in the SA to be filed u/s 17. 

(b)   If the bank rejects the said Representation and Objections without due application of mind, one can file ‘Declaratory and Injunction Suit’ in civil court. Till that suit is decided, the authorized officer should not invoke Sec 14 for physical possession. Even if he invokes, the Magistrate cannot issue orders against the bank’s application u/s 14.

(c)   As per Mardia, nobody can be left remediless. Further as per the provisions of law u/s 13[3(A)], 34 and 37 of the Act combined with the principles of natural justice, the above mentioned Injunction suit is one of the best remedies. If there is any problem in the civil court, one may approach the High Court.    

(B) Caveat before Magistrate & Liason with his Offfice:- These have been dealt with in detail in previous weekly mails in detail.

 

List of All Pages with Links of this Web Site may be seen vide clicking:- DRT Solutions - Site Map for Borrowers & Guarantors

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  

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Counter-claim Permissible in Securitisation Application u/s 17, rules DRAT Delhi  

Vijaya Bank versus B. L. Gupta decided on 16.03.11 by Debts Recovery Appellate Tribunal, Delhi upholding that counter-claim can be filed in the application u/s 17 of the Securitisation Act in DRT. This is validation of our contentions past nearly 10 years. The full text of the judgment is given on our web site vide link http://www.drtsolutions.com/counterclaim-SA.htm The important portions of the judgment has been marked in Red

Comments by DRT Solutions :- Our comments are as under:-

(a)   Past nearly 10 years we have been telling our clients to include loss and damages (i.e. counter-claim) in their application u/s 17 of the Securitisation Act. In fact in several of the said applications drafted by us, we have done so e.g. in case of one of our clients from Bangalore in 2006.

(b)   We have voiced our contentions in our web site, DRT All India Conferences held at Indore in 2008 and 2011 as well as in our weekly mails.

(c)   In the above DRAT Delhi judgment, reference has been made to the SC Judgment of 2004 in the matter of Mardia Chemicals.

(d)   As a whole our contentions are based on the following legal analysis:-

(i)            The borrower as a citizen has fundamental rights of fair trial under the constitution of India and the said rights can not be abridged or curtailed by anybody or by any enactment including the Securitisation Act of 2002.

(ii)           Since Sec 34 of the said Securitisation Act has barred the civil court, the said rights of fair trial for the borrowers are to be ensured and assured by the DRTs.

(iii)         Since as per Mardia in 2004 and now specifically explained by the DRAT Delhi in 2011, borrower’s counter-claim has to be adjudicated upon by fair trial by the DRTs.

(iv)          The DRTs may adopt expeditious and summary process to judicial determination of the bank claims but for the counter-claim of the borrower, full and exhaustive trial has to be conducted and carried out as he was entitled in the civil court before the said bar due to Securitisation Act of 2002.

(v)           Since in most of the cases, we have found that the said loss and damages or counter-claim is much more than the claim of the bank, there is the situation of ‘No Debt Due’ and hence no recovery action on the securities can be initiated till the said ‘No Debt Due’ is judicial determined by the full and fair trial.

(vi)          On account of above, the DRT Act, Securitisation Act and DRTs have limited role or function as it would have been better to improve the civil courts as a whole instead of creating new forums like DRTs.

(vii)        We don’t want to learn from the experience of other countries. In UK, the tribunals were introduced in 1800. It took more than 150 years to find out correct solution i.e. by Sir Frank Committee in 1957.

(viii)       As told by eminent justice Krishna Iyer that our courts are 200 years behind the courts in developed countries.. There are 73 countries whose judicial systems are better than us. The only and better solution is to improve the courts based on the system developed in those countries which have better judicial system.

(ix)          Since the relevant institutions like Govt, Law Commission, Bar Council of India and Law Colleges are not doing desirable work (and they will not do for obvious reasons), the public has to come forward. While litigants in civil courts can not do much, those in DRTs can do much better as the Businessmen and Industrialists as litigants are much more competent and resourceful. Till the judiciary and judicial systems are improved, we cannot have real democracy i.e. rule for public, rule by public and rule of public as against rule by Bureaucrats & Politicians, rule of Bureaucrats & Politicians and rule for Bureaucrats & Politicians.

(x)           The full and fair adjudication of claim for loss and damages or counter-claim will alone bring to light the wrong doings committed by the bureaucracy in the banks and financial institutions after which only the banks and the said institutions will improve and after that only the hold of the politicians on these institutions will come down. Thus the DRT litigants have a great responsibility and role to play.

Highlights:- All problems of Debts NPA Recovery Tribunals i.e. DRTs, NPA Recovery and securitisation / securitization Act, ARCIL i.e. Asset Reconstruction Company (India) Limited,  are tackled by us. People from all over the country are phoning us, then visiting and getting their problems solved. Please visit Home Page and other Pages also

Extract from DRT Solutions Weekly Mail – 245th Issue dated 18th January ’13

 

Our Comments on Recent Amendment to the Securitisation Act


 

Our comments are as under:-

(a)   The bill was finally passed by the parliament on 20.12.12. Accordingly the sections 2, 5, 9, 13 and 14 of the Act were amended.

(b)   In section 2 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereafter in this Chapter referred to as the 54 of 2002. principal Act), in clause (c), after sub-clause (iv), the following sub-clause shall be inserted,

(c)   namely:— “(iva) a multi-State co-operative bank; or”. 

Our Comments

(d)   The DRTs will now have jurisdiction over the multi-state co-operative banks. This will cause increase on the number of cases and workload of the DRTs. The relevant pending Supreme Court case will have to be decided as early as possible.

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(e)   In section 5 of the principal Act, after sub-section (4), the following sub-section shall be inserted, namely:—

“(5) On acquisition of financial assets under sub-section (1), the securitisation company or reconstruction company, may with the consent of the originator, file an application before the Debts Recovery Tribunal or the Appellate Tribunal or any court or other Authority for the purpose of substitution of its name in any pending suit, appeal or other proceedings and on receipt of such application, such Debts Recovery Tribunal or the Appellate Tribunal or court or Authority shall pass orders for the substitution of the securitisation company or reconstruction company in such pending suit, appeal or other proceedings.”.

Our Comments

(f)    If there are wrong doings committed by the bank, one should implead the said bank despite the above mentioned application.

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(g)    In section 9 of the principal Act, after clause (f), the following clause shall be inserted, namely:—

“(g) to convert any portion of debt into shares of a borrower company: 

Provided that conversion of any part of debt into shares of a borrower company shall be deemed always to have been valid, as if the provisions of this clause were in force at all material times.”.

Our Comments

(h)   This will have no impact on the borrowers. The aim appears to clean up the balance sheets of the bank.

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(i)    In section 13 of the principal Act,—

(a)           in sub-section (3A), for the words “within one week”, the words “within fifteen days” shall be substituted;

Our Comments

            This will have no impact on the borrowers.

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In section 13 of the principal Act,—

(b)           after sub-section (5), the following sub-sections shall be inserted, namely:— 

“(5A) Where the sale of an immovable property, for which a reserve price has been specified, has been postponed for want of a bid of an amount not less than such reserve price, it shall be lawful for any officer of the secured creditor, if so authorised by the secured creditor in this behalf, to bid for the immovable property on behalf of the secured creditor at any subsequent sale.

(5B) Where the secured creditor, referred to in sub-section (5A), is declared to be the purchaser of the immovable property at any subsequent sale, the amount of the purchase price shall be adjusted towards the amount of the claim of the secured creditor for which the auction of enforcement of security interest is taken by the secured creditor, under sub-section (4) of section 13.

(5C) The provisions of section 9 of the Banking Regulation Act, 1949 10 of 1949. shall, as far as may be, apply to the immovable property acquired by secured creditor under sub-section (5A).”. 

Our Comments

It appears that the banks are in desperate hurry to clean up their balance sheets. In longer run it will recoil on the banks only. They will be flooded with the unsalable properties which may cause ultimate loss to the banks. There may be scandals due to purchase of such properties by the bank officials. There will be multiple litigations. It is reiterated that we must raise loss and damages or counter-claims against the bank if the borrower desires to have ultimate defence. In that situation, the banks will not be able to apply this amended section due to ‘No Debt Due’ situation. Actually smaller borrowers will become innocent victims and as a whole it will bring great disrepute to the banks and immense problems to the politicians.

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(c)           in the opening portion of sub-section (9), and in the Explanation thereto, for the words “three-fourth”, occurring at both the places, the words “sixty per cent”. shall be substituted 

Our Comments 

It will only result in increase in number of cases and workload on the DRTs.

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6. In section 14 of the principal Act,—

(a) in sub-section (1), the following provisos shall be inserted, namely:—

“Provided that any application by the secured creditor shall be accompanied by an affidavit duly affirmed by the authorised officer of the secured creditor, declaring that— 

(i) the aggregate amount of financial assistance granted and the total claim of the Bank as on the date of filing the application;

(ii) the borrower has created security interest over various properties and that the Bank or Financial Institution is holding a valid and subsisting security interest over such properties and the claim of the Bank or Financial Institution is within the limitation period;

(iii) the borrower has created security interest over various properties giving the details of properties referred to in sub-clause (ii) above;

(iv) the borrower has committed default in repayment of the financial assistance granted aggregating the specified amount;

(v) consequent upon such default in repayment of the financial assistance the account of the borrower has been classified as a non-performing asset;

(vi) affirming that the period of sixty days notice as required by the provisions of sub-section (2) of section 13, demanding payment of the defaulted financial assistance has been served on the borrower;

(vii) the objection or representation in reply to the notice received from the borrower has been considered by the secured creditor and reasons for non-acceptance of such objection or representation had been communicated to the borrower;

(viii) the borrower has not made any repayment of the financial assistance in spite of the above notice and the Authorised Officer is, therefore, entitled to take possession of the secured assets under the provisions of sub-section (4) of section 13 read with section 14 of the principal Act;

(ix) that the provisions of this Act and the rules made thereunder had been complied with:

Provided further that on receipt of the affidavit from the Authorised Officer, the District Magistrate or the Chief Metropolitan Magistrate, as the case may be, shall after satisfying the contents of the affidavit pass suitable orders for the purpose of taking possession of the secured assets:

Provided also that the requirement of filing affidavit stated in the first proviso shall not apply to proceeding pending before any District Magistrate or the Chief Metropolitan Magistrate, as the case may be, on the date of commencement of this Act.”; 

(b) after sub-section (1), the following sub-section shall be inserted, namely:—

“(1A) The District Magistrate or the Chief Metropolitan Magistrate may authorise any officer subordinate to him,— 

(i) to take possession of such assets and documents relating thereto; and

(ii) to forward such assets and documents to the secured creditor.”;

(c) in sub-section (3), after the words “the District Magistrate”, the words “any officer authorised by the Chief Metropolitan Magistrate or District Magistrate” shall be inserted.   

Our Comments 

The implications are huge. Massive comments are needed. It will only result in numerous legal complications to the bank officials, the Magistrates, POs of the DRTs, High Courts and the Supreme Court  particularly when loss and damages or counter-claims have been raised by the borrowers. On the other hand small borrowers will greatly suffer as they do not have adequate knowledge and resources to the desired legal fight. Ultimately the banks will suffer as the amount recovered will be small but the disrepute will be massive.

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7. After section 18B of the principal Act, the following section shall be inserted,

namely:—

“18C. (1) Where an application or an appeal is expected to be made or has been made under sub-section (1) of section 17 or section 17A or sub-section (1) of section 

Insertion of new section 18C. 

Right to lodge a caveat.  

18 or section 18B, the secured creditor or any person claiming a right to appear before

the Tribunal or the Court of District Judge or the Appellate Tribunal or the High Court, as the case may be, on the hearing of such application or appeal, may lodge a caveat in respect thereof.

(2) Where a caveat has been lodged under sub-section (1),—

(a) the secured creditor by whom the caveat has been lodged (hereafter in this section referred to as the caveator) shall serve notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been or is expected to be made under sub-section (1);

(b) any person by whom the caveat has been lodged (hereafter in this section referred to as the caveator) shall serve notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been or is expected to be made under sub-section (1).

(3) Where after a caveat has been lodged under sub-section (1), any application or appeal is filed before the Tribunal or the court of District Judge or the Appellate Tribunal or the High Court, as the case may be, the Tribunal or the District Judge or the Appellate Tribunal or the High Court, as the case may be, shall serve a notice of application or appeal filed by the applicant or the appellant on the caveator.

(4) Where a notice of any caveat has been served on the applicant or the Appellant, he shall periodically furnish the caveator with a copy of the application or the appeal made by him and also with copies of any paper or document which has been or may be filed by him in support of the application or the appeal.

(5) Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of the period of ninety days from the date on which it was lodged unless the application or appeal referred to in sub-section (1) has been made before the expiry of the said period.”.  

Our Comments 

This is a welcome provision as it has vindicated our stand about the caveats. Legally knowledgeable borrowers will intelligently use this tool compared with the bankers. The litigation process will result in greater justice to the alert and conscious party. It is needless to mention that the ‘No Debt Due’ situation is a must. Again the small borrowers will have painful process due to lack of knowledge and resources to fight.

Amendment 8. In section 23 of the principal Act, after the proviso, the following proviso shall be of section 23. inserted, namely:— 

“Provided further that the Central Government may, by notification, require registration of all transactions of securitisation, or asset reconstruction or creation of security interest which are subsisting on or before the date of establishment of the Central Registry under sub-section (1) of section 20 within such period and on payment of such fees as may be prescribed.”.

Our Comments 

At the moment there is no impact as the Central Registry has not yet started functioning.

 Insertion of 9. After section 26 of the principal Act, the following section shall be inserted,

new section namely:— 26A. 

Rectification “26A. (1) The Central Government, on being satisfied— by Central Government (a) that the omission to file with the Registrar the particulars of any in matters of transaction of securitisation, asset reconstruction or security interest or registration, modification or satisfaction of such transaction or; the omission or mis-statement modification and of any particular with respect to any such transaction or modification or with satisfaction, respect to any satisfaction or other entry made in pursuance of section 23 or etc. section 24 or section 25 of the principal Act was accidental or due to inadvertence or some other sufficient cause or it is not of a nature to prejudice the position of creditors; or 

(b) that on other grounds, it is just and equitable to grant relief, may, on the application of a secured creditor or securitisation company or reconstruction company or any other person interested on such terms and conditions as it may seem to the Central Government just and expedient, direct that the time for filing of the particulars of the transaction for registration or modification or satisfaction shall be extended or, as the case may require, the omission or mis-statement shall be rectified. 

(2) Where the Central Government extends the time for the registration of transaction of security interest or securitisation or asset reconstruction or modification or satisfaction thereof, the order shall not prejudice any rights acquired in respect of the property concerned or financial asset before the transaction is actually registered.”.

10. For section 30 of the principal Act, the following section shall be substituted, namely:—

“30. (1) No court shall take cognizance of any offence punishable under section 27 in relation to non-compliance with the provisions of section 23, section 24 or section 25 or under section 28 or section 29 or any other provisions of the Act, except upon a complaint in writing made by an officer of the Central Registry or an officer of the Reserve Bank, generally or specially authorised in writing in this behalf by the Central Registrar or, as the case may be, the Reserve Bank. 

(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act 

Our Comments 

Such ideal provisions are not practical. They will result in numerous litigations and headaches to the banks, registrars, courts and the central govt. At the moment there is no impact as the Central Registry has not yet started functioning.

After section 31 of the principal Act, the following section shall be inserted, namely:—

“31A. (1) The Central Government may, by notification in the public interest, direct that any of the provisions of this Act,— 

(a) shall not apply to such class or classes of banks or financial institutions; or

(b) shall apply to the class or classes of banks or financial institutions with such exceptions, modifications and adaptations, as may be specified in the notification. 

(2) A copy of every notification proposed to be issued under sub-section (1), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses.”. 

Our Comments 

This is a usual legal provision.

 

21.12.12 - Importance and Impact of Counter-claim- DRT Solutions Weekly Mail 241st   
 

One of our clients from Orissa got Counter-claim prepared from us but could not file it. The proceedings in DRT, DRAT and High Court resulted in payment of certain deposit. Before fully honouring his full commitment made before the High Court, he came to us nearly after three years. We advised him to file the said counter-claim. We provided him all necessary court judgments and citations. Accordingly the counter-claim was filed and a situation of ‘No Debt Due’ was created. Side by side, he hounoured his commitment about the deposit. When this matter was put up before the High Court, the High Court in its order asked the DRT to decide the counter-claim based on the law and the procedure of law. We advised the said client to hire suitable advocate having knowledge and experience of trials. Whenever, the counter-claim is decided, the said deposit will have to be refunded with interest and damages. Had the said counter-claim would have not been filed, the case would have been closed without any benefit to the borrower on account of the wrong doings committed by the bank. Hence it is reiterated in all the bank litigations, one must file his counter-claim. It can be filed at any stage and at any time. In one case we filed the counter-claim even after 21 years

 

21.12.12 - Purchasing the Assets of Borrowers in Auction conducted by Bank or DRTs- DRT Solutions Weekly Mail 241st 
 

Several persons approach us for guidance and advice for purchasing the assets of the borrowers through the auctions conducted by the banks or DRTs. Our comments are as under:-

(a)           First we tell them that we don’t deal in such matter. Rather we protect the properties of the borrowers so that such properties are not sold.

(b)           Despite above, if they intend to purchase, they must check all the records in banks and DRTs. They should get no objection or confirmation from the borrower/guarantor.

(c)           In many cases, the banks keep the buyers in dark about the legal complications. As a result, the  possession of the property becomes difficult. Hence one should never believe the bank officials and instead should carry out their own independent verifications.

14.12.12 - Bankers complaining against DRTs- DRT Solutions Weekly Mail 240th 

 

Following news item appeared at page 3 of the Economic Times, Mumbai as well as the internet edition :- 

Shortage of staff forces DRTs to put off cases

http://economictimes.indiatimes.com/news/economy/finance/staff-crunch-forces-debt-recovery-tribunals-to-put-off-cases/articleshow/17551652.cms

(DRTs), an important mechanism for loan recovery by banks, are foundering amid charges of lack of professionalism and shortage of staff as bad loans are crippling banks. The disposal of cases has been falling as a few members have to handle enormous amount of claims and the delaying tactics employed by defaulters by going in appeal against every order are defeating the purpose.

In fact, bankers at a recent meeting with the finance ministry officials have charged that unjustified orders are being passed by some DRT officials in connivance with promoters who want to protect their assets. "We had complained about the unilateral stays that the registrars of the debt recovery tribunals are granting to the borrowers without giving banks a proper hearing,'' said a bank chairman, who did not want to be identified. "The issue was raised by us at a DRT forum where finance ministry officials were also present."

There are at least 33 DRTs and five appellate bodies to deal with cases. Although the mechanism was brought in with a noble aim to decide on the cases within 6 months, the lack of adequate staff and timely replacements have hit their operations. With corruption spreading, some say, even DRTs are not immune to it. "Borrowers are taking advantage of the debt recovery appellate tribunal and appealing against the order issued by the DRTs,'' said advocate Ravi Goenka of Goenka Law Associates  who represents financial institutions like asset reconstruction firm Arcil and OBC.

"According to the law, DRTs have to dispose off cases in six months, but it's taking almost two to three years.'' In 2011-12, of the total amount recovered through the Sarfaesi Act, DRTs and Lok Adalats registered a decline of 8.2% at 14,400 crore, from 15,700 crore a year earlier despite a surge in bad loans.

There is only one member looking after the Western region comprising entire Maharashtra, Gujarat and Goa. For a long time, the post of presiding officer was vacant and presiding officer of the Kolkata bench was looking after the Western region appellate tribunal as additional portfolio. Mumbai-based banks had to go to Kolkata to file a case in most of the cases, said a lawyer representing a bank.

The long duration taken by DRTs to decide on the cases is reflected in the fact that the Oriental Bank of Commerce and Bank of India are still fighting a case to recover dues from former stock broker Ketan Parekh in a case relating to the 2001 securities scandal. He was barred from trading at the Indian stock exchanges till 2017.

During June to December 2012, some important cases involving companies like Som Developers (owing 390 crore to SBI, UBI and other banks), Sterling Biotech  ( 322 crore debt towards a subsidiary of LIC) and Aeroflex ( 181 crore towards SBI) were admitted. "The DRTs were to finish cases in six month. However, they are not able to adhere to the timeline as they have become like a civil court,'' said the legal head of a private sector bank.

Our Comments

(a)   The Tiwari Committee which proposed in 1984 establishment of DRTs recommended that the DRTs’ Judges and Advocates should have specialized knowledge in functioning of banks, financial institutions and industry. The DRTs were constituted in 1993. Till date the original recommendation of Tiwari Committee has yet been implemented. The DRT judges and advocates continue to function in DRTs without the required knowledge of banking, industry and finance. Hence instead of complaining about the DRTs, the banks should organize training programe for the said specialized knowledge. In reality it will also help the borrowers.

(b)   DRT is a trial court. The time of 6 months is too small a period. The civil court normally take 15 to 20 years for a normal trial. In fact the DRTs will take much more time as the procedure is yet to be established and the DRT Advocate and Judges do not have specialized knowledge of banking, industry and finance.

(c)   On account of defective trial in DRT, extra time is required in higher court in appeal etc.

(d)   Despite Supreme Court verdict 15 years back, the control of DRTs is not being transferred from Ministry of Finance to Ministry of Law. As a result, the bank officials are being posted as Judges and Recovery Officers resulting into biased judgments and orders. Such defective judgments and orders create further delay due to appeal, review and revisions.

(e)   The element of corruption in DRTs is more or less same as in other courts or even in banks.

(f)    Instead of complaining about DRTs, the banks should devise a system by which the wrong doings committed by the banks are checked and corrected before filing a case in DRTs. This will drastically reduce the cases being filed in DRTs.

(g)   Competent and trained judges and advocates in DRTs with maximum use of modern technology will alone reduce the time being consumed by the DRTs.

(h)   In this connection, it will be worthwhile to know that all the above problems arose in UK also when Tribunals were established in 1800 and it took 157 years to find a workable solutions through the recommendations of Sir Frank Committee. But our beauracracy does not want to learn from such experience. That is why our country is ranked 78th  among 97 countries in respect of functioning of Judiciary. In 1988, eminent Justice Krishna Iyer said that we are 200 years behind developed countries.

(i)    It is reiterated that businessmen and industrialist facing litigation in DRTs will definitely help in bringing about judicial reforms which will contribute to the improvement of Judiciary as a whole. This is for the simple reason that they compared with the ordinary public litigants in civil courts are much more competent and capable.

20.07.12 - DRTs in Mumbai are staying the Adjudication in respect of Co-operative Banks- DRT Solutions Weekly Mail 219th 

Mr. Bharat Gandhi, DRT Advocate, Mumbai has informed that the DRTs in Mumbai are issuing stay orders in respect of recovery cases filed by the Co-operative cases. Earlier the borrowers had to approach the Supreme Court which was issuing such stays and now he need not approach the Supreme Court

13.07.12 - Receipt of Notice u/s 13(4) is Sufficient to Initiate Action u/s 17 of the Securitisation Act - DRT Solutions Weekly Mail 218th 

After in-depth study and based on the judgments delivered by the Supreme Court and the High Court, we have come to the conclusion that one should initiate action u/s 17 of the Securitisation Act just after receipt of the notice u/s 13(4).

13.07.12 - If Banks depute Recovery Agents, Borrowers should make Video/Audio Record the discussions with the said Agents - DRT Solutions Weekly Mail 218th 

It is observed that the banks are deputing Recovery Agents for various activities. The Borrowers should make arrangements for recording telephone talks with the said Agents. In case the Agents come to spot, all discussions and dealings should be video recorded. At proper time the CDs containing the said audio and video records should be sent to the banks as documents to be used in future if necessary. It is needless to mention that simple gadgets and handicams are available for said audio/video recording. The borrowers should practice in advance to make trial recordings as well as the sample CDs so that the system does not fail when the real need arises.

22.06.12 - Dilemma of Indian Banks  to move from Securitisation to DRT Act due to Slump in Property Market - DRT Solutions Weekly Mail 215th

On account of slump in the property market vide news below, the banks and FIs are in a fix. They have no interest to invoke the Securitisation Act. In many cases, after issue of the legal notice u/s 13(2), the secured creditors are postponing issue of possession notice u/s 13(4). They are now afraid to take possession of the secured assets as there may not be any buyer. They have no option but to file OA under the DRT Act. In that eventuality, they will have to face the counter-claims and hence the recovery cases in the DRTs will be delayed. Further on account of sharp increase in NPAs, there will more number of cases in DRTs.

Sunday, June 17, 2012

Home sales slump by more than 50% in Delhi, Mumbai areas

http://indiahousingbubble.blogspot.in/ 

While MMR reported the sharpest drop of around 58%, NCR slumped 57% from the year earlier. Bangalore witnessed a drop of 18% in sales, the report added.

Sales in NCR dropped to 15,104 units from 35,420 units and it fell to 11,473 units from 27,676 units in MMR.

The two regions saw a residential supply of 107,731 and 89,461, respectively, in the first quarter.

Samir Jasuja, founder and chief executive officer, PropEquity Analytics, said, “In the coming quarters, there would be strong pressure on many micro markets and we expect inventory overhang to increase and absorption could continue to slow down. Mumbai in MMR and Gurgaon in NCR have seen the sharpest falls in absorption.”

“If this trend continues, there could be a price correction of 5-20%, especially in the micro markets of NCR, MMR and Hyderabad,” he added.

Bangalore hasn’t been as badly hit because of demand from genuine homebuyers and end-users, apart from the fewer unsold properties.

Sales in the southern city fell 18% to 7,704 units from 9,410 units.

The other two markets are largely investor driven.
“Generally, investor-driven markets would see downward risks than end-user driven markets,” added Jasuja.

15.06.12 - Before Declaring NPAs, Bankers have Numerous Duties to Perform including Rehabilitation not only Once but Multiple Times - DRT Solutions Weekly Mail 214th  

One of our clients Mr. Mukund Murthy from Mumbai  has sent the following useful information:-

“Before declaring NPAs, Bankers have numerous duties to perform including rehabilitation not only once but multiple times – Important Information for Borrowers and their advocates

Our Associate and Banking Expert has drawn attention to the following important RBI Guidelines and circulars which will be highly useful to Borrowers and their Advocates. These need to be studied and important aspects included in the ‘Representation and Objections’ to notice u/s 13 of the Securitisation Act as well as in the application u/s 17 of the said Act:- 

(a) Even before the prudential norms to declare accounts as NPA was brought by RBI to be implemented from 31st March 2004, RBI issued a circular DBS.CO.OSMOS/B.C./ 4/ 33.04.006 / 2002-2003 dated September 12, 2002 on “Guidelines on preventing slippage of NPA accounts” based on a study on preventing slippage of NPA accounts, addressed to The chairman/ Managing Director/Chief Executive Officer – All Commercial Banks (Excluding RRBs) which means it is applicable to all commercial banks irrespective of whether they are Indian banks or foreign banks or multi state co-operative banks. Since the circular cited now is issued previous to the circular issued for declaration of NPA, the guidelines as prescribed in the aforesaid circular has to be implemented first before declaring an account as NPA. 

(b) RBI Master circular DBOD No.BP.BC.10/21.04.048/ 2004-05 dated July 17, 2004 where in prudential norms are given. As per the said circular of RBI, mere irregularity in the account cannot make it a Non Performing Asset. It depends upon the nature of irregularity.

 (c) RBI circular RPCD.PLNFS.BC.No.31/06.02.31/2005-2006 dated August 19, 2005 highlights the “Policy Package for Stepping up Credit to Small and Medium Enterprises. - Further RBI circular RPCD.SME & NFS.BC.No.9/06.02.31/ 2010-11 dated July 1, 2010 under lending to Micro, Small & Medium Enterprises (MSME) Sector among other things states about  Debt Restructuring Mechanism for Micro Small and Medium Enterprises. 

(d) That as per Government of India policy and RBI guidelines and directives, it is apparent that an account can be classified as NPA only when all the means of making the account performing, which includes repeated rehabilitation fail to produce the desired result, and then and then only, the legal proceedings under Securitization Act 2002 can be invoked and proceedings initiated by issuing the notice u/s 13(2) of the said Act.”

01.06.12 - Amendment of the SA - DRT Solutions Weekly Mail - 212nd

“We are getting several cases where the SA has been prepared but it lacked important portions like many of the wrong doings committed by the lenders and the loss and damages on account of the said wrong doings. We advised our such clients that the SA should be amended at the earliest possible opportunity. If it is not done, the borrower shall be deprived of an important right and his case will become weak and later on curing such weakness will not be possible. There are few judgments of the Supreme Court of India which lay down that “ The Courts should be extremely liberal in granting prayer of amendment of pleadings unless serious injustice or irreparable loss is caused to the other side.”

01.06.12 - Exhaustive Application for Stay before DRT- DRT Solutions Weekly Mail - 212nd  

“Just after receipt of notice u/s 13(4) it will be better to submit SA before DRT with an exhaustive application for stay as early as possible. The SA may have even provision for subsequent amendment. Such action will prevent the lender to approach the Magistrate or direct auction of the secured assets.”

25.05.12 - ‘No Debt Due’ – Stages for Highlighting - DRT Solutions Weekly Mail - 211th

“The banks are out to misuse the coercive provisions of the Securitisation Act. In order to secure favourable response from the Magistrate u/s 14 or from the PO DRTs u/s 17, proper pleadings are to be made to emphasize the situation of ‘No Debt Due’ at the following stages:-

(a)    In the Representation and objections against the notice u/s 13(2), the loss and damages should be pleaded stating that since the said loss and damages are much more than the alleged dues of the bank and hence there is ‘No Debt Due’. Copy be also sent to the Chairman and other higher officials of the bank.

(b)    In the caveat filed before the Magistrate copy of the said Representation and Objections be enclosed emphasizing the said ‘No Debt Due’ situation. Copy of the said caveat be also sent to the Chairman and other higher officials of the bank.

(c)    In the arguments before the Magistrate the said point of ‘No Debt Due’ be emphasized. Also written arguments be submitted.

(d)    Despite above if the Magistrate order is not favourable, review be filed before the Magistrate.

(e)    Just after review, appeal be filed before the DRT.

(f)      Since every stage, sufficient records have been created followed by Review, Appeal and Written Arguments, the Magistrate and PO DRTs will have no option but to grant stay for taking the physical possession.

(g)    Despite above, if desired results are not achieved, one will have sufficient records and documents to file Appeal before DRAT and then subsequently before the High Court and Supreme Court.

18.05.12 - Misconceptions of a DRT Advocate – Action after Notice u/s 13(2) - DRT Solutions Weekly Mail - 210th  

One of our clients arranged a conference call during which he, his DRT Advocate and we interacted, his said advocate proposed certain  actions against which our comments were as under:-

(a)    The bank sent the legal notice u/s 13/2 of the Securitisation Act against which the borrower submitted the Representation and Objections within 60 days.

(b)    The bank did not submit the reply within a week as prescribed u/s 13(3A).

(c)    The bank did not take any further action. It was learnt that the bank officials desired to cancel the first notice and to issue another notice.

(d)    The said DRT Advocate proposed to file SA in the DRT. We told him that the SA can be filed only after bank invokes any action u/s 13(4) or approaches to the Magistrate u/s 14 but not before that.

(e)    The said Advocate proposed to file suit in the civil court. We told him that such action will ultimately not be of any use due to bar of civil court as per Sec 34.

(f)      The said Advocate also proposed to file a writ petition in the High Court. We told him that the High Court will ultimately advise to approach DRT at appropriate time.

(g)    On account of above such misconceptions, we have been advising our clients to go through the relevant legal provisions and discuss the matter with us so that unnecessary and ineffective actions are not indulged in. The borrower should keep in view that all the government policies, RBI Guidelines, banking and general laws and above all the Constitution support business, trade and industries so that there is growth, employment and revenue generation. All these should be pleaded properly and at every time, the borrower should strictly follow the law and the procedure of law. Any shortcut and hurry will ultimately go against him. We are always available for suitable guidance and advice at any stage of litigation. Our web site and weekly mail are continuously updated to provide latest practical knowledge.      

(h)    On account of professional ethics and other obvious reasons, we never disclose name of the clients, advocates, DRTs etc but our aim is that the relevant  knowledge and experience must flow to one and all so that it will be useful to others.    

18.05.12 - Proposal by a DRT Advocate – To file Injunction Suit against Classification of Account into NPA - DRT Solutions Weekly Mail - 210th  

One of well known DRT Advocates proposed filing an Injunction Suit against classification of account into NPA. We advised him not to do so on account of following reasons:-

(a)    The proceedings in the civil court are barred due to Sec 34 of the Securitisation Act and hence the efforts and expenses in the civil court will be wasted.

(b)    The DRT is the most suitable jurisdiction as it is a specialized court for the matters relating in business, industry and finance being dealt under the DRT Act and Securitisation Act.

(c)    The DRTs were formed on recommendation of the Tiwari Committee which in its report published by the RBI in 1984 said that the proposed tribunals (i.e. DRTs) should be manned (i.e. the DRT Advocates and DRT Judges) by persons having expertise in banking, industry and finance. Hence the DRT advocates and judges should undergo a training of at least 100 hours in banking, industry and finance. Such training should be repeated every two years.

(d)    The adjudication in DRTs is guided on the Principles of Natural Justice scope of which is much wider than that in CPC. In fact the CPC is codification of the said Principles of Natural Justice and hence the deficiencies in CPC could be corrected in the DRTs.

(e)    Classification of account into NPA is one of the ingredients to invoke sec 13(2) of the Securitisation Act. Such classification is a very tedious and exhaustive process being based on relevant RBI Guidelines. This could be one of the preliminary issues in the trial of the SA. If proper pleadings are made and thorough trial of the said preliminary issue is carried out, in most of the cases, the bankers will lose.

(f)      Hence in view of above, it will be better to carry out the proposed adjudication in DRTs rather than the civil courts.

 

11.05.12 - Sec 14 of Securitisation Act – Important Observations and Comments - DRT Solutions Weekly Mail - 209th 

On account of legal ignorance, the borrowers and guarantors are highly scared of the physical possession orders for which are obtained by the banks from the Magistrate u/s 14. Our observations and comments are as under:-

(a)    After possession notice u/s 13(4), the borrower is entitled to file application u/s 17 before the DRT within 45 days of receipt and or publication of the said notice in two news papers.

(b)     Hence we have been advising our clients to file caveat with the Magistrate so that opportunity is given to the borrower to participate in the proceedings.

(c)    Further we have been advising our clients, to approach to DRT, the moment they come to know that the bank has approached the Magistrate.

(d)    The Magistrate is bound to take action on the said caveat as well as to extend opportunity for hearing.

(e)    If there are wrong doings by the bank upto the stage of 13(4), the Magistrate is bound to refuse to act u/s 14.

(f)      In case the Magistrate orders for physical possession, his order is appealable u/s 17 before the DRT.

(g)    Keeping all the above aspects and implications in view, we cove all the related aspects when we prepare the objections and representation against the notice u/s 13(2) including the claim for loss and damages. Such pleadings become useful and handy while dealing with the Magistrate as well as the DRT.  

(h)    The gist of the approach is that on account of huge loss and damages due to the wrong doings of the bank, there is ‘No Debt Due’, hence there is no cause for recovery. Until and unless this issue is settled by the DRT, no physical possession can be taken. This will be done only after final order against the SA u/s 17. As per the Supreme Court in the matter of Mardia Chemicals, the said SA is in lieu of a suit. The adjudication of a suit takes time of several years. Since the higher authorities in the bank are also impleaded in the said suit, lot of pressure is created and ultimately, the bank officers have no option but to settle as per the terms desired by the borrower.  

(i)      In above dealings, one should study and keep in view all the related case laws. Even there may be occasions to file Review and Appeal.

04.05.12 - Amendment of SA to include Loss & Damages - DRT Solutions Weekly Mail - 208th

 

We are getting several cases where, the SA does not include various wrong doings committed by the lender as well as the consequent Loss and Damages. Under such facts and circumstances, the SA should be amended as early as possible to include the said wrong doings as well as the said consequent loss and damages. Normally such amendment should be allowed by the DRTs. If there is any hitch, the DRT should be requested to pass suitable order. After examining the content of the said order, subsequent step should be taken to initiate Review and or Appeal. After the amendment is allowed, the situation of ‘No Debt Due’ will be achieved whereby the secured assets can not be touched till the complete SA including the loss and damages are adjucated upon fully.

04.05.12 - Cross examination of Bank Officials in SA - DRT Solutions Weekly Mail - 208th

 

As per the law laid down by the Supreme Court in the matter of Mardia Chemicals, the SA is in lieu of a suit. DRT being akin to a trial court to determine the fact, if is convinced that the controversial facts require oral examination of the parties and their witnesses, has full powers to examine and cross examine the said officials. This will depend on the pleadings, reply by the bank, relevant documents, issues framed and material controversies.

13.04.12 - Public Notice for Sale – during the Adjudication of SA – Arbitrary and Illegal Action- DRT Solutions Weekly Mail - 205th 

Having constituted the DRTs and having enacted the special acts like the DRT Act and the Securitisation Act, the banks thought that they will have quick recovery of their alleged dues. This was a wishful thinking. The DRTs are trial courts and have to function in accordance with the law and procedure of law. The impatience of the bank officials results in violation of the said law and procedure of law. As a result the recovery gets inordinately delayed. We have observed that even in the very initial stage of the SA, the banks are going for making public sale notices of the secured assets. This is highly illegal and arbitrary. Our views are as under:-

(a)    As per the law declared by the Supreme Court of India in the matter of Mardia Chemicals, the SA is in lieu of a suit on account of bar of civil court due to Sec 34 of the Act. Hence all the wrong doings of the bank must be pleaded in the SA including the loss and damages due to the said wrong doings. In almost all the cases, the said loss and damages are much more than the alleged claim of the bank and hence prima facie, there is ‘No Debt Due’, Under such circumstances, no recovery action can be initiated by the bank till the SA is fully adjudicated.

(b)    In view of above, any paper publication for sale of the secured assets before final adjudication of the SA is arbitrary and illegal. 

13.04.12 - Asking for Deposit under ‘No Debt Due’ situation for Staying Disposal Action is Arbitrary and Illegal- DRT Solutions Weekly Mail - 205th 

Under the ‘No Debt Due’ situation described vide item no (1) above, asking for any Deposit for staying disposal action is arbitrary and illegal. Our comments are as under:-

(a)    As per the law declared by the Supreme Court of India in the matter of Mardia Chemicals, the SA is in lieu of a suit. Accordingly the prescribed court fee is paid on the SA.

(b)    Having paid the court fee and under the ‘No Debt Due; situation, if bank initiates any recovery action, the same should be stayed (without any deposit) till said SA is fully decided.

21.03.12 - Illegal auctioning of assets - CMD of Financial Institution, its AGM (Law) and Recovery Officer of DRT-1 Delhi get One Month Jail by High Court Delhi for Contempt – Officers of the Financial Institutions are also fined Rs 3.5 lac and Rs. 1.5 lac to be paid from their pocket – - DRT Solutions Weekly Mail - 202nd 

(a)                Three news items are reproduced in the Weekly Mail 202nd Issue dated 21.03.12 and are self explanatory.

(b)                This weekly mail must be spread to all borrowers, guarantors and their advocates as well as the Industrial Associations.

(c)                This will create a fear among the public servants indulging into illegal disposal of assets by the banks and DRTs.

(d)                This has proved our contentions past several years that in all cases, the Chairman of the bank must be impleaded as a necessary party.

(e)                It is reiterated that our pleadings must be thorough and perfect and we must contest perfectly on all dates.

(f)                  We must always file damages and or counter-claims in all cases for the wrongdoings committed by the banks and Fis.

16.03.12 - Our contention to include ‘Loss and Damages’ (i.e. Counter-claim) in the SA gets support of Court of Law - DRT Solutions Weekly Mail - 201st

Past several years, we have been including ‘Loss and Damages’ in the SA filed by the Borrowers in the DRTs under the Securitisation Act. We held this view on the basis of the 2004 verdict of the Supreme Court of India in the matter of Mardia Chemicals wherein it was held that the application u/s 17 of the Act is  in lieu of a suit.  

Mr. Bharat Gandhi, Advocate, Mumbai recently sent us a copy of DRAT New  Delhi Judgemant reported as 2012(1) Bankers’ Journal 72 in the matter of Vijaya Bank vs B.I. Gupta wherein it is held that counter-claim can be filed in SA u/s 17 of the Securitisation Act. This judgment fully supports our above mentioned contention.

28.02.12 - Magistrate refuses to issue covering order for physical possession of secured assets - DRT Solutions Weekly Mail - 198th 

One of our clients from Nagpur informed that the bank officials illegally took physical possession and sold the secured assets. Subsequently the said erring bank officials approached the Magistrate to issue covering order for physical possession. The said Magistrated refused to issue such order. The borrower should initiate criminal action against the said bank officials as well as file damage suit against them and the bank. 

 

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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

 

Many practical and critical aspects of Securitisation Act are contained in our weekly mails:- The visitors of this web site will be greatly benefited if they desire to know the practical and critical aspects of Securitisation act as under:- 

Our Weekly Mails are DRT 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. 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 6 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.

DRT Solutions Weekly Mail – 72nd Issue dated 18th September ’09

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

(1) Securitisation Act – DRT Trials – Problems faced by Defendant Borrowers and Solutions

We have received several queries on this topic from our clients as well as those visiting our web site. Our views are as under:-

(a)     It is presumed that exhaustive objections, representation and facts have been submitted before the lender under section 13(3-A) of the Securitisation Act ’02.

(b)     It is presumed that the said objections, representation and facts include the claim of loss and damages suffered by the borrower on account of wrong doings of the secured creditor. In some cases where OA has been filed by the said creditor, it is presumed that counter-claim has already been filed. It is presumed that the said loss and damages or the said counter-claim are more than the claim of the said creditor.

(c)     It is presumed that exhaustive appeal has been filed u/s 17 of the said Act. 

(d)     Under the above facts and circumstances, the basis of the arguments will be as under:-

(A)   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.

(B)    The Supreme Court in the matter of Mardia Chemicals (AIR 2004 SC 2371) has declared that the said appeal u/s 17 is akin to a civil suit. Hence it is binding on DRTs to try the said appeal as a civil suit.

(C)    The Supreme Court in the matter of Swaranlata (AIR 1969 SC 1167) has laid down the procedure by which trial of a civil suit is to be conducted. Accordingly the DRTs are legally bound to follow the said procedure.

(D)    As per the Supreme Court in the matter of Commissioner of Central Excise vs Uni Products (I) Ltd  [2009 STPL (Web) 19 SC] decided on 08.09.09. the tribunal (i.e. in our case DRT) is the last authority on facts.

(E)    As per the Supreme Court in the matter of Authorised Officer,  Indian Overseas Bank vs Ashok Saw Mill decided on 16.07.09 has declared that the DRT has full powers set aside the actions taken u/s 13(4) and even status quo ante can be restored by the DRT.

(F)    As per Sec. 22 of the DRT Act 1993, the DRTs and DRATs shall not be bound by the procedure laid down by the CPC 1908 but shall be guided by the principles of natural justice.

(G)   As per the section 34 of the said Act ’02, no civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which a DRT or DRAT is empowered by or under the said Act ’02 to determine. Hence the said appeal u/s 17 is the only suit for adjudication.

(H)    As per the Supreme Court in the matter of ICICI Ltd vs Grapco Industries Ltd. [1999 AIR (SC) 1975], the DRTs can exercise the powers of civil court and even travel beyond the scope of CPC for the purpose of natural justice.

(I)       When all the above provisions of the law declared by the Supreme Court are to be followed by the DRTs and in fact they are bound to do so, the trial of the said appeal u/s 17 should take not less than 15 to 20 years.

(J)     If any PO wants to hurry up, he should be told and explained about the above provisions. Despite this, if he hurries up the matter, application should be made to change of court. If necessary a petition for writ of certiorari may be filed in the High Court for the violations of principles of natural justice as well as the law laid down by the Supreme Court.

(K)    Few of our clients have followed the above provisions and have achieved success.

(L)    If any clarifications are required the matter may be discussed with us on phone or in person.

(2) Banks are  preferring to invoke Securitisation Act

We have observed that the secured creditors are giving more preference to invoke the Securitisation Act rather than the DRT Act. Our comments are as under:-

(a)     In respect of our clients, we have saved many of them by the various steps outlined by us in various weekly mails.

(b)    The most important aspect is perfect pleadings and perfect trial on every date. Another most important aspect is perfect cross-examination.

(c)     If all the legal aspects pointed by us are kept in view and if an experienced trial lawyer is appointed, there is no reason for the borrower (if he has filed a counter-claim or damage suit which are more than the claim of the bank and hence there is ‘No Debt Due’) to win against the secured creditor.

DRT Solutions Weekly Mail – 65th Issue dated 7th August ’09

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

(1) Defence Strategy in respect of Securitisation Act:-

The Banks and FIs are giving preference to invoking Securitisation Act for expeditious recovery of their alleged overdues. Many of our clients have been repeatedly approaching for knowing and understanding overall strategy to be adopted by the borrowers in defence. Our views  are as under:-

(a) The RBI Guidelines in respect of NPA should be studied thoroughly well.

(b) If there is any likelihood of account becoming NPA on account of wrong doings of the bank, one should make necessary preparations to counteract the impending Notice under Securitisation Act. First of all he should study the Securitisation Act with emphasis on Sec. 13 and onwards of the said Act.

(c) It must be understood that as soon as the said Notice is received, the borrower will get 60 days free time during which he must make his representation or objection to the bank.

(d) As per the scheme of the Act, the secured creditors have been vested with powers to take actions mentioned in Sec. 13 of the Act without intervention of the court of law. Thus for such provisions they are required to act just like a court to discharge their functions in a quasy judicial manner under Administrative Law keeping in view the principles of natural justice. The Supreme Court in the matter of Mardia Chemicals has also said that the said proceedings has to be conducted by the ‘Internal Mechanism’ of the secured creditors.

(e) As per Sec. 34 of the Act, no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a DRT or DRAT is empowered by or under this Act to determine and no injunction shall be granted by any court. 

(f) We have repeatedly advised that the counter-claim or damage suit against the lender is the only and ultimate defence.

(g) In view of above facts and circumstances, the borrower must prepare his said representation or objection just like a total defence containing all the wrong doings of the secured creditor as well as the loss and damages suffered and address the same to the authorized officer as if the same is being submitted to the said ‘Internal Mechanism’ (a quasy judicial court)

(h) As per the Act, the secured creditor is required to consider the said representation or objection within 7 days and communicate the reasons for non-acceptance if any. As per the Supreme Court in the matter of Mardia Chemicals, the said consideration should be with due application of mind. Thus the said ‘Internal Mechanism’ or the said quasy judicial Court of the secured creditor must adjudicate the said representation or objection keeping in view the principles of natural justice.

(i) Under the above facts and circumstances and when the loss and damages are much more than the claim of the bank i.e. ‘No Debt Due’ situation, even any action under Sec 13(4) becoming questionable, a solid foundation for defence is laid down.

(j) Further any notice under Sec 13(4) for symbolic possession with paper publication becomes cause of action for filing appeal under Sec 17 before DRT.

(k) As per Sec. 13(10) of the Act where dues of the secured creditor are not fully satisfied with the sale proceeds of the secured assets, the secured creditor may file an application in DRT for recovery of the balance amount.

(l) As per the Supreme Court, the said Appeal under Sec. 17 of the Act is akin to a civil suit. The foundation already laid down in the said representation or objection along with the decision of the said ‘Internal Mechanism’ will now provide complete defence in the said civil suit in form of the action under Sec. 17.

(m) As per Sec 17(3), the DRT is required to examine the facts and circumstances of the case and evidence produced by the parties.  

(n) As per the Sec 17(7) of the Act, the DRT may dispose of the application u/s 17 in accordance with provisions of the DRT Act.  

(o) If all the above is considered together i.e. civil suit as per Mardia, bar of civil court, judicial determination of facts based on evidence and application of principles of natural justice; the proceedings in DRT emerges to take shape of complete proceedings of a suit with procedure based on principles of natural justice. As per the Supreme Court, the procedure under the principles of natural justice can travel beyond the Civil Procedure Court and hence even there are no limitation of CPC, the scheme of the Act is self sufficient, exhaustive and exclusive with the aim to attain complete justice.

(p) All the above aspects are to be pleaded properly by the expert persons having mastery of facts relating to banking, industry and finance and mastery of law of torts, damages, banking, evidence, principles of natural justice. One has to be perfect on every date and in every proceedings. All the material facts need to be judicially determined. All the affidavits submitted by the bank officials be examined thoroughly. Ultimately much will depend on the cross-examination of bank officials which must be conducted by the experts in banking and evidence. It is needless to mention that we have highly trained persons for such cross-examinations.  

(q) We are just carrying on the court system established by the British for their Police Raj with practices and legacies of without any fundamental rights of the citizens, without any separation of powers and no action against the state or state bodies. The banks continue to behave with practices based on security oriented financing with least effect of nationalization and project oriented finance where the payment of interest and repayment of loans is out of profit instead of any security.

(r) In developed countries like USA, the time schedule for suits is 9 months and that too when they have highly developed applications of modern management, latest IT technology, humanly possible workload on judges, specifically trained advocates and judges, public monitored tribunals, unbiased and independent tribunals, highly developed and efficient revival and rehabilitation mechanisms etc.

(s) With passage of time, judicial system in our country also will improve. The borrowers now are getting much better informed and equipped particularly due to growing literature, precedents of bottom courts available for analysis and internet resources. They inturn will empower their advocates which will definitely have snowballing effect on the judges. This is how the law is developing in the bottom courts. Much will depend as to how the cases are pleaded and contested at every point of adjudication at every point of time and ultimately the verdict given by the Supreme Court.

(t) Hence if one is thorough at every point of time, the adjudication in DRTs will take considerable time which not only will make the case strong but the advantages of future developed judicial system will also accrue to such litigants. In this respect again the adjudication of counter-claim or damage suit will prove to be the highest determining factor of ultimate and final defence. As a whole one has to be always careful that until and unless all the material facts are judicially determined, the matter should not be moved to higher courts and if any occasion arises to move to higher courts, it should be confined to such matters only where facts have been judicially determined and decisions on legal issues if any only are required and not otherwise.

(u) The borrowers are entitled for the above exhaustive and perfect approach on account of highest possible powers donated to the creditor for the simple reason as to when the powers are high, the standard of duty is also correspondingly high. The approach has to be more cautious due to obvious smell of partisan and biased approach of the DRTs towards the alleged secured creditors.

(2) Concepts and Law relating to ‘Possession’ and ‘Ownership’ particularly with reference to the Securitisation Act:- 

The borrowers must study the concepts and law relating to ‘Possession’ and ‘Ownership’ particularly with reference to the Securitisation Act. Our views  are as under:-

(a)     Any good book on ‘Jurisprudence’ i.e. Science of Law has separate chapters on ‘Possession’ and ‘Ownership

(b)    Even separate books are available on these two important topics.

(c)     Concept of ‘Possession’ is multi-faceted and multi-dimensional. Possession may be ‘constructive’, ‘permissive’, ‘symbolic’, ‘prescriptive’, and ‘adverse’. In law possession means a capacity of a person having such control on property that he legally enjoy it to the exclusion of others having no better right than himself.

(d)    Possession has also the effect of creating ownership either by obtaining control by the user and possession for a length of time prescribed by law which is technically known as prescription.

(e)     In the legal sense, the term ‘ownership’ carries the connotation of right over a thing to the exclusion of all other persons. It implies noninterference by others in the exercise of that right and must be distinguished from mere holding a thing in one’s possession. Normally the ownership implies the right to possess, the right to use, the right to manage, the right to the capital and right to income.

(f)      When these concepts are specifically applied to the matters being dealt with under the Securitisation Act, the actions under Sec 13(4) can only be initiated when there is ‘Debt Due’ and all efforts to ‘Revive and Rehabilitate’ have failed. Further notice for ‘Symbolic Possession’ with advertisement will be the cause of action to approach to DRT by an application (akin to a civil suit) under Sec 17 of the Act. Consequently till the said suit is finally decided, the physical possession and ownership of the alleged secured assets of the borrower can not be disturbed.

 

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.

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

DRTs, DRT solutions, Debts NPA Recovery Tribunal, DRTs matters, DRTs WS, DRTs Legal Opinions, DRTs Arguments, DRTs Documents, Appellate DRTs, Bank litigations, securitisation / securitization, Counter-claims, NPA Recovery, NPAs Settlements, checking of bank accounts and documents, 138 NI Act - Dishonour of Cheques etc., expertize in all these matters past 14 years. Legal BPO and offshore BPO is our new activity for which we have launched new web site www.usindolegal.com

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, 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 focussed attention, you get 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 and filed before expiry of the Notice Period. 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. Even if any attempt is made by the lender to take possession, the property can not be sold. Further steps in the DRT should be as outlined in the next para. 

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 and law of torts. 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.  

Important Extracts from the SC judgment in the matter of Mardia Chemicala

 

(1) Extract from para 33 of the SC judgment, dealing with issues to be decided:-

33. Taking an overall view of the rival contention of the parties, we feel the main questions which broadly fall for consideration by us are :

i)          Whether it is open to challenge the statute on the ground that it was not necessary to enact it in the prevailing  background  particularly when another statute was already in operation?

ii)         Whether provisions as contained under Section 13 and 17 of the Act provide adequate and efficacious mechanism to consider and decide the objections/disputes raised by a borrower against the NPA Recovery, particularly in view of bar to approach the civil court under Section 34 of the Act?

iii)        Whether the remedy available under Section 17 of the Act is illusory for the reason it is available only after the action is taken under Section 13(4) of the Act and the appeal would be entertainable only on deposit of 75% of the claim raised in the notice of demand?

iv)        Whether the terms or existing rights under the contract entered into by two private parties could be amended by the provisions of law providing certain powers in one sided manner in favour of one of the parties to the contract?

v)         Whether provision for sale of the properties without intervention of the court under Section 13 of the Act  is akin to the English mortgage and its effect on the scope of the bar of the jurisdiction of the civil court?

vi)        Whether the provisions under Sections 13 and 17(2)  of the Act are unconstitutional on the basis of the parameters laid down in different decisions of this Court?

vii)       Whether the principle of lender's liability has been  absolutely ignored while enacting the Act and its effect? 

 

(2) Extract from para 34 of the SC judgment, stating that borrowers rights under the constitution can not be ignored:-

34. Liquidity of finances and flow of money is essential for any healthy and growth oriented economy.  But certainly,  what must be kept in mind is that the law should not be in derogation of the rights which are guaranteed to the people under the Constitution.  The procedure should also be fair, reasonable and valid, though it may vary looking to the different situations needed to be tackled and object sought to be achieved.  

 

(3) Extract from para 44 of the SC judgment, stating that borrowers objections, if any about dues or in classification of NPA and or NPA Recovery be expeditiously be resolved:- 

44. Nonetheless dues or disputes regarding classification of NPAs should be considered and resolved by some internal mechanism.  In our view, the above position suggests the safeguards for a borrower, before a secured asset is classified as NPA. If there is any difficulty or any objection pointed out by the borrower by means of some appropriate internal mechanism it must be expeditiously resolved.   

 

(4) Extract from para 45, 46, 47 and 48 of the SC judgment, purpose of 60 days notice and remedies to the borrower to ventilate his grievance:- 

 45. ….we may consider as to what forums or remedies are available to the borrower to ventilate his grievance. The purpose of serving a notice upon the borrower under sub-section (2) of Section 13 of the Act is, that a reply may be submitted by the borrower explaining the reasons as to why measures may or may not be  taken under sub-section (4) of Section 13  in case of non-compliance of notice within 60 days.  The creditor must apply its mind to the objections raised in reply to such notice and an internal mechanism must be particularly evolved to consider such objections raised in the reply to  the notice. There may be some  meaningful consideration of the objections raised rather than to ritually reject them and  proceed to take drastic measures under sub-section (4) of Section 13 of the Act. Once such a duty is envisaged on the part of the creditor it would only be conducive to the principles of fairness on the part of the banks and financial institutions in dealing with their borrowers to apprise them of the reason for not accepting the objections or points raised in reply to the notice served upon them  before proceeding to take measures under sub-section (4) of Section 13.  Such reasons, overruling  the objections of the borrower, must also be communicated to the borrower  by the secured creditor.  It will only be in fulfillment of a requirement of reasonableness and fairness in the dealings of institutional financing which is so important from the point of view of the economy of the country and would serve the purpose in the growth of a healthy economy……. At the same time, more importantly we must make it clear unequivocally that communication of the reasons not accepting the objections taken by the secured borrower may not be taken to give  an occasion to resort to such proceedings which are not permissible under the provisions of the Act.  But communication of reasons not to accept the objections of the borrower, would certainly be for the purpose of his knowledge which would be a step forward towards his right to know as to why his objections have not been accepted by the   secured creditor who intends to resort to harsh steps of taking over the management/business of  viz. secured assets without intervention of the court.  Such  a  person in respect of whom steps under Section 13(4) of the Act are likely to be taken cannot be denied the  right to know the reason of non- acceptance and of his objections.    It is true, as per the provisions under the Act, he may not be  entitled to challenge the reasons communicated or the likely action of  the secured creditor at that point of  time unless his right to approach the Debts Recovery Tribunal as provided under Section 17 of the Act matures on any measure having been taken  under sub-section (4) of Section 13 of the Act. 

46. ….it is necessary to communicate the reasons for not accepting the objections raised by the borrower in reply to notice under Section 13(2) of the Act more particularly for the reason that normally in the event of non-compliance with notice, the party giving notice approaches the court to seek redressal but in the present case, in view of Section 13 (1) of the Act the creditor is empowered to enforce the security himself without intervention of the Court. Therefore, it goes with logic and reason that he may be checked to communicate the reason for not accepting the objections,  if raised and before he takes the measures like taking over possession of the secured assets etc.  

47. This will also be in keeping with the concept of right to know and lender's liability of fairness to keep the borrower informed particularly the developments immediately before taking  measures under sub-section (4) of Section 13 of the Act.  It will also cater the cause of transparency and not secrecy and shall be conducive in building an atmosphere of confidence and healthy commercial practice.  Such a duty, in the circumstances of the case and the provisions is inherent under Section 13(2) of the Act.  

48. The next safeguard available to a secured borrower within the framework of the Act is to approach the Debts Recovery Tribunal under Section 17 of the Act.  Such a right accrues only after measures are taken under sub-section (1) of Section 13 of the Act.   

(5) Extract from para 64 of the SC judgment, holding illegal the 75% deposit along with submission before Debts Recovery Tribunal :- 

64. The condition of pre-deposit in the present case is bad rendering the remedy illusory on the grounds that (i) it is imposed while approaching the adjudicating authority of the first instance, not in appeal,  (ii)there is no determination of the amount due as yet (iii) the secured assets or its management with transferable interest is already taken over and under control of the secured creditor (iv) no special reason for double security in respect of an amount yet to be determined and settled (v) 75% of the amount claimed by no means would be a meager amount (vi) it will leave the borrower in a position where it would not be possible for him to raise any funds to make deposit of 75% of the undetermined demand.  Such conditions are not alone onerous and oppressive but also unreasonable and arbitrary.  Therefore, in our view, sub-section (2) of Section 17 of the Act is unreasonable, arbitrary and violative of Article 14 of the Constitution

 

(6) Extract from para 68 of the SC judgment, stating that writs does not lie against Private Banks, Co-operative banks, Foreign Banks etc. :- 

68. ...So far remedy under Article 226 of the Constitution of India is concerned, the submission is that it may not always be available since the dispute may be only between two private parties, the banking companies, co-operative Banks or financial institutions, foreign banks, some of them  may not be authorities within the meaning of Article 12 of the Constitution of India against whom a writ petition could be maintainable...

 

(1) The High Court Gujrat asked Mardia Chemicals to 'To file counter-claim against ICICI bank in DRTs' vide page 6 of the Economic Times dated 13.03.03. 

Our Comments:- This is legal validation of our stand which we have emphasizing on this web site past several months.

claim must be framed and kept ready so that as soon as the notice is received, the counter-claim is filed within 60 days. Please study this web site and in case of any difficulty or clarification contact us on our off. cum res. phones +91-731-4049358, Mobile- 930-2103689 or through e-mail at our ID ramkishandrt@gmail.com

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Contact Information :- Phones (India):- Mobile- +91-969-1103689, Off. & Res. +91-731-4049358,

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

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

(2) We have created a separate web site www.usindolegal.com which deals exclusively with our US joint venture enterprise for activities like BPO, legal BPO, DRT etc. This site has started appearing in the search results of Google, Mamma, Alexa and Yahoo.

Application of Law of Torts in claiming Damages from Municipal Corporations for demolition of structures, closure of shops etc:- In many parts of the country, the Municipal Corporations are demolishing structures like shops and houses which existed for number of years. The shops existing for number of years are proposed to be shut down. The affected persons should claim Damages under the Law of Torts, which would be substantial. It is learnt that in Delhi itself about 5 lac shops are to be closed down and about 25 lac persons would be out of jobs. All these persons should file damage suits in the civil court. Since the damages would be substantial, the suits may be filed as Indigent Persons. Since the damages would attract interest, the usual delay by the civil courts will not affect the final outcome. The affected shop owners may discuss the details with us on phone.

Our Articles for Borrowers and Guarantors:- Our articles on DRT matters have been published in the Financial Express. The All India Manufacturers Organisation in its famous web site www.aimoindia.org has reproduced copies of our four articles. These original articles can be searched in the archive of the Financial Express in its web site www.financialexpress.com Two of these articles have been reproduced in other pages of this web site. 

Useful link www.WorldVideoBusiness.com :- WorldVideoBusiness-WVB® is a business to business e-marketplace source of international trade leads, and tender opportunities from companies and government organizations around the globe.

About Us in Brief :-  (1) We specialize in DRT (Debt Recovery Tribunal) and NCLT (National Company Law Tribunal) matters. As a whole you may approach us for all DRT Problems and Solutions as well as matters connected with ARCIL i.e. Asset Reconstruction Company (India) Limited,  We have a Joint Venture with an America based law firm for various activities like BPO, legal BPO and DRT. The details of the said American firm and the joint venture may be seen at the page - Our US Joint Venture with Anand Ahuja Associates or in www.usindolegal.com (2) For your all problems including those in DRT, please phone us or send e-mail. Please give your contact details along with your problems in brief. As a whole you may approach us for all DRT Problems and Solutions.  (2) With our Legal Opinion, you need not worry about the Securitisation Act or other DRT matters or NCLT. Please visit the page Products & Services and Frequently Asked Questions (3) On account of our expertise in the Law of Torts and Banking and experience past 15 years, we can help you to submit suitable defence with winning strategy in DRT cases, Securitisation Act, Guarantors' defence etc.  (4) We need only copies of all available documents  to render our expert 'Legal Opinion' which will be quite useful and valuable to you particularly in DRT i.e. Debt recovery Tribunal. (5) We have also handled assignments for preparation of damage claims against Electricity Boards, Insurance Companies, Municipal Corporations etc. all on the basis of the Law of Torts.  (6) The DRT counterclaims is to be prepared well in advance so that it could be raised at proper time in DRT or other forum to safeguard the securities and assets. (7) Several DRT counterclaims drafted by us are being handled by different advocates at DRT Mumbai, DRT Delhi, DRT Jabalpur etc. Thus DRT advocates are available in these cities. Cases in other Debt Recovery Tribunals are under process. (8) This site is updated monthly mostly on every first Monday of the month or for urgent release on any day with latest material. (9) For further details about us, please visit the page About Us-DRT Solutions As a whole you may approach us for all DRT Problems and Solutions. We hail from the place to which Maharishi Mahesh Yogi and Acharya Rajnish belong and hence this site is dedicated to them.

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

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

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

                                           (3) Shri Hira Ratan Manek (HRM) for his pioneering work on Solar healing vide his web site www.solarhealing.com and forum at www.lifemysteries.com                                    

We regularly practice TM and SCI of Maharishi Mahesh Yogi. We also regularly practice Hath Yoga including Pranayam based on Baba Ramdev Ji  Maharaj. We daily watch his global TV program on Astha Channel from 05:30 AM to 8AM and 8PM to 9PM Indian Standards Time. On Sanskar channel, we daily view the discourse of Pradumn Maharaj from 4 AM to 5:30 AM. Many chronic diseases such as Cancer, Parkinsons' disease, Polio, Asthma, Hypertension, diabetes etc. have been cured by the said method of Pranayam which can be learnt even by watching his program on TV. Since 30th March '06, we have started practicing Sun Gazing as prescribed by HRM.

                                    (3) Shri Satyanarayan Morya alias 'Babaji' for his praiseworthy service to our nation. Please visit his site www.artistbaba.com 

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