Sunday, February 7, 2016

Supreme Court Favour Tenant Affects Banks

Banks’ NPA pains just got worse
--The Indian Express by Indu Bhan


The apex court, in the matter of Vishal N Kalsaira vs Bank of India & Ors, has ruled that tenants cannot be arbitrarily evicted by using the provisions of the Sarfaesi Act as that would amount to stultifying the statutory rights of protection given to the tenant. This ruling given by learned apex court will further add to the pain of banks.

A non-obstante clause (Section 35 of the Act) cannot be used to bulldoze the statutory rights vested on the tenants under the Rent Control Act, the court observed, while holding that the securitisation law will not override various rent control laws enacted by state governments as it will leave tenants to the mercy of landlords.

“There is an interest of the bank in recovering the NPAs on the one hand, and protecting the right of the blameless tenant on the other. The Rent Control Act being a social welfare legislation must be construed as such. A landlord cannot be permitted to do indirectly what he has been barred from doing under the Rent Control Act, more so when the two legislations, that is the Sarfaesi Act and the Rent Control Act, operate in completely different field,” the judgment stated.

The Sarfaesi Act empowers a secured creditor to take possession of the mortgaged property if the borrower fails to pay up after 60 days of the notice for default of loan repayment being served.

Rejecting the contention of the banks that the Sarfaesi Act overrides provisions of the Rent Control Act, the court said that if it were to be accepted, it would render the entire scheme of all rent control laws as “useless and nugatory since tenants would be left in the fear that the landlord may use the tenanted premises as a security interest while taking a loan from a bank and subsequently default on it.”

The top court also directed that enhanced rent by way of a conditional interim order shall be continued to be paid to the respective banks, which is to be adjusted towards debts of the debtors/landlords.


Legal experts, however, feel that the judgment is flawed on many counts as it does not take into consideration the larger public interest. Barring lenders from proceeding under securitisation laws to evict the tenants residing in the tenanted premises which have been offered as collateral securities for loans is going to frustrate loan recovery. When the Sarfaesi Act came into force, the NPA burden stood at R1.1 lakh crore and has increased to R2.67 lakh crore at the end of March 2015 in case of PSU banks.



“With this judgment, the Sarfaesi Act would become unworkable. It is easy for the borrowers to put up bogus tenants, by producing back-dated rent receipts, thereby frustrating the entire intent and purpose of framing the Act.

In case the rights of unregistered/oral tenants were considered necessary to be protected, it should have been subject to certain guiding principles/conditions, so as to make the Sarfaesi Act workable, viz. that a unregistered or oral tenancy would be accepted as valid, only where there are overwhelming documents in possession of such lessees like electricity bills, water bills, voter ID and passport to prove his possession,” Kapur says.



According to another Supreme Court lawyer R Chandrachud, the court has “overlooked the aspect that Sarfaesi Act has a public element involved”, as at the end of the day, the loans come from public money. “It misses the larger point that the landlord by merely leasing its premises does not lose other rights as he continues to be the owner of the property and still retains the right to sell and give the property as a collateral towards loan,” he says.



https://in.finance.yahoo.com/news/verdict-corner-banks-npa-pains-010700051.html

Rs 1.14 lakh crore of bad debts: The great government bank write-off

That is the amount of bad loans waived in last three financial years, more than the write-off in the previous nine

cr
- See more at:

http://indianexpress.com/article/india/india-news-india/bad-loan-financial-year-rti-rbi-bank-loan-raghuram-rajan-bad-loan-financial-year-rti-rbi-bank-loan-raghuram-rajan-1140000000000-bad-debts-the-great-govt-bank-write-off/#sthash.3liXoUDY.dpuf

Sunday, June 7, 2015

Bank Cannot Disclose Customers Data

Bank liable for wrongful disclosure of customer data-Times of India 08 Jun 2015

MUMBAI: A banker is privy to confidential financial information. Hence, he must exercise caution to ensure it does not fall into wrong hands.

Case Study:

Rupa Mahajan Pahwa had a joint savings account with her husband Ajay at Punjab National Bank's Vasant Kunj branch in New Delhi. The account was to be operated by either or survivor. Later, the relationship between Rupa and Ajay soured and they filed for divorce in court.


During court proceedings, Ajay produced a duplicate passbook of her account, and was using it against her. Her inquiries revealed that the bank had handed over a duplicate passbook to a third party at the behest of her husband. An aggrieved Rupa filed a complaint against the bank before the Delhi District Forum. She claimed that her husband had deserted her and their infant daughter, leaving them without any financial support. She was seeking maintenance through the court proceedings. The production of the duplicate passbook in the court by her husband had resulted in revealing all her confidential financial details without her consent. Due to this, she faced humiliation in court, causing her further mental torture and harassment. Besides, it would also drastically affect the amount of maintenance and alimony. She sought a compensation of Rs 7 lakh from the bank.

The district forum observed that the bank had not produced any record to show the identity of the person to whom the passbook had been handed over. The forum concluded that the bank had attempted to manipulate evidence, for which it imposed a penalty of Rs 5,000, payable by the bank to the State Consumer Welfare Legal Aid. The forum also found that Rupa had been subjected to mental agony, harassment and emotional suffering due to the bank's capricious conduct. The bank was directed to pay Rupa a compensation of Rs 1 lakh for the suffering, Rs 30,000 for deficiency in service, and Rs 5,000 as litigation costs.

The bank approached the National Commission in revision. The bank's main contention was that Ajay was a joint account holder. The operating instructions were either or survivor. Ajay had written a letter requesting for a duplicate passbook to be handed over to the bearer of the letter. The bank claimed it could not be fastened with any liability since the duplicate passbook had been issued on the basis of a request .

Rupa, who appeared in person, faulted the bank's reasoning. She pointed out that a duplicate passbook could be issued only when the original is lost or stolen. This criteria was not fulfilled since Ajay's application merely said he was applying for a duplicate as the original was not available with him. Also, the authority to collect the passbook was not given in favour of any specific person, but merely to the bearer of the request letter. Rupa argued that the bank ought to have insisted on an authorization in favour of a specific person, and his signature attested by the account holder, to prevent the passbook from falling into wrong hands.

When confronted with this reasoning, the bank conceded that this was a lapse, but promptly tried to cover it up by arguing that Rs 100 had been debited from the account for issuance of the duplicate passbook, which had been handed over to Ajay's father. The commission observed that there was no authorization in favour of Ajay's father nor was his signature attested in the request letter. In its order of May 28, 2015 delivered by the Bench of Justice D K Jain and Vinay Kumar, the National Commission indicted the bank for trying making a deflective and unconvincing attempt to gloss over a significant lapse. It upheld the state commission's order.

Conclusion:

A bank is liable for failure to safeguard a customer's confidential data.


Consumer wins battle against bank, will receive compensation of 5,000

MARGAO: A consumer has got an order from a district forum against Axis bank to pay him compensation of 5,000 for rejecting his cheque of around 6,000 that was drawn to pay electricity bills.

D J de Souza had approached the district consumer disputes redressal forum, South Goa.

The complainant had issued a cheque in favour of chief electrical engineer for a sum of 6,960 towards the electricity bills. The cheque was drawn on Axis Bank dated June 4, 2014.

According to the complainant, he had to suffer loss due to rejection and had to pay 850 more to the electricity department.

According to the opposite party, the cheques were rejected/returned back to the complainant because of alteration/correction in the cheque.

Forum president, Jayant S Prabhu and members Savita G Kurtarkar and Cynthia Colaco observed, "On close scrutiny of the cheque dated June 4, 2014, we find that there is hardly any alteration carried out by the complainant while issuing the cheque drawn on the chief electrical engineer. According to us, material alteration means the alteration should be such which becomes difficult to read or to interpret the writing done on the instrument. According to us, if the collecting bank can very well read the writings done on the instrument, then there should not be any problem to the clearing bank i.e. the opposite party in clearing the cheque".

The forum held that as the opposite party refused to clear the cheque, the complainant obviously had to suffer and had to pay late payment charges to the electricity department. As such, according to us, there is deficiency in service on the part of the opposite party which eventually left the bill unpaid, the forum said.

The forum stated "The complainant has brought nothing on record to show that he had to pay a sum of 850 as late charges. As such, we are of the opinion that a sum of 5,000 would be adequate to compensate the complainant towards harassment and mental torture."

The complainant would also be entitled towards a sum of 5,000 towards cost of the complaint, the forum directed.

http://timesofindia.indiatimes.com/business/india-business/Bank-liable-for-wrongful-disclosure-of-customer-data/articleshow/47578843.cms

http://timesofindia.indiatimes.com/city/goa/Consumer-wins-battle-against-bank-will-receive-compensation-of-5000/articleshow/47578336.cms



Wednesday, May 13, 2015

Supreme Court Decision

Supreme Court refuses to stop Centre from granting quota to Jats-NDTV-13.05.2015

New Delhi:  The Supreme Court today declined to stay the Centre's decision to grant reservations in government jobs and educational institutions to the Jat community.

The Top Court expressed its satisfaction with the documents submitted by the Centre in support of its decision to bring the Jats in the OBC list, and posted the matter for further hearing on May 1.

"Prime facie, we are satisfied with the material submitted by the government for providing reservations to Jats," Chief Justice P Sathasivam said.

The Supreme Court had on April 1 directed the Centre to turn over all the files pertaining to its decision to extend OBC quota to the Jats in seven states - Uttar Pradesh, Madhya Pradesh, Gujarat, Rajasthan, Haryana, Himachal Pradesh and Bihar.

In its petition, OBC Reservation Raksha Samiti had appealed to the Supreme Court  to quash the Jat quota announced by the Centre just before the polls,  and also argued that it was contrary to the recommendation of the National Commission for Backward Classes.

A few Jat organisations had, in the interregnum, filed a caveat, contending that  the Court should hear them also before passing any orders.

Quota for Jats is seen as the Congress' attempt to improve its poll prospects in nine states where the community has a strong presence - Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, Rajasthan, Uttar Pradesh, Delhi, Uttarakhand and Bihar. Congress leaders have assessed that over eight crore Jats in these states can be the deciding factor in at least 30 Lok Sabha constituencies.

The National Commission for Backward Classes had opposed a quota for Jats on grounds that the community cannot be classified as "backward" and such a move would deprive more deserving groups of central benefits. The proposal was still cleared at a special cabinet meeting on March 2 and notified on March 4, just a day before the announcement of Lok Sabha polls brought a model code of conduct into effect.
SC says no to politicians’ photos on government ads-The Hindu

The apex court, however, permitted the use of photographs of the President, Prime Minister and CJI in the advertisements.

In a historic judgment holding that taxpayers' money cannot be spent to build "personality cults" of political leaders, the Supreme Court on Wednesday restrained ruling parties from publishing photographs of political leaders or prominent persons in government-funded advertisements.
 
The apex court said such photos divert attention from the policy of the government, unnecessarily associate an individual with a government project and pave the way for cultivating a "personality cult".
As an exception to this general rule, the court held that the photos of only three constitutional authorities - Prime Minister, President and Chief Justice of India - can be used in such ads. But for that too, the personal approval of these three authorities need to be got before publication.
 
The judgment by a bench of justices Ranjan Gogoi and N.V. Ramana came on the basis of a series of recommendations given by its own committee led by noted legal academcian N.S. Madhava Menon on introducing checks on government-funded ads.
The committee was formed in April 2014 on a PIL filed by NGO Common Cause had argued that ruling party leaders and ministers were taking undue advantage at public expenses.
 
The Menon panel had recommended a complete ban on publishing of photos in the ads. It had further said that no ads should be allowed on election eve.
In his verdict, Justice Gogoi modifies the recommendation on four counts.
 
One, instead of a complete ban on publishing of photos of all individuals, it departs to the extent of saying that pictures of PM, President and CJI can be used provided they personally clear it - thus, in a way, making them also accountable for the publication.
Two, the court improvises on the Menon committee recommendations to direct the government to appoint a three-member Ombudsman body of persons with "unimpeachable integrity".
Three, the bench disagrees with the Menon panel's suggestion for a performance audit on such government ads.
Four, the court said there was no need for a curb on government ads on election eve. However, it said such ads should be given with fairness and even dispensation to the media.
 
 

Friday, May 8, 2015

Enforcement Of Security Interest SARFAESI ACT 2002

SARFAESI Act, 2002: Enforcement of security interest-By T. R. Radhakrishnan-Source Lawyers Club
It is observed that the general belief and perception of many of the legal luminaries, Court Judges, Chair persons of DRAT and Presiding Officers of DRT and also the secured creditors and their authorised officers, is that Section 13(2) of SARFAESI Act cannot be challenged and the borrower can challenge only actions initiated by the Authorised Officer under section 13(4) of the said Actand that too under section 17(1) of the Act when the borrower files his Securitisation Application (SA). As per the said Act, the borrower can approach DRT only when the Authorised Officer issues a notice of possession u/s 13(4) of SARFAESI Act.
 
But a perusal of the tenets of the SARFAESI Act shows the following aspects.
 
A secured creditor shall be entitled to exercise all of any of the rights under sub-section (4) of section 13 of SARFAESI Act without the intervention of the court only if the following actions are initiated by the secured creditor / authorised officer.
 
1. Security agreement should be executed between the secured creditor and the borrower.
 
2. Security interest should be created on the secured assets in favour of the secured creditor.
 
3. Debt of the borrower should be classified as Non-Performing Asset (NPA) for which the debt has to be crystallized.
 
4. Secured creditor has to issue a notice u/s 13(2) of SARFAESI Act demanding the dues from the borrower by giving all the details of the dues and securities to be enforced based on the definition of NPA as per RBI norms.
 
5. The borrower is required to make the payment as demanded by the secured creditor within 60 days from the date of the notice.
 
6. The borrower is entitled to make his representation and raise his objections to the notice.
 
7. The authorised officer has to give a reply to the representation made and objections raised by the borrower within 15 days giving valid reasons if he rejects the representation made and objections raised by the borrower.
 
Hence the question of serving of notice u/s 13(4) of the Act comes only when the bank and financial institution undertake the aforesaid actions upon which the borrower can file his Securitization Application (SA).
 
The first pertinent question is, can section 13(2) of SARFAESI Act be challenged? If so, on what grounds can it be challenged? The answer is “yes” if the notice issued u/s 13(2) of SARFAESI Act is not as per the provisions of SARFAESI Act and also if it violates RBI norms for classifying the account as NPA and if the bank and financial institution do not follow the RBI guidelines. In this connection Andhra High Court judgment in the matter of M/s Sravan Dall Mill P. Ltd. Vs. Central Bank of India pronounced on 11th September 2009 is worth recalling. The relevant portion of the said judgment is quoted hereunder. The judgment pertains to two important aspect of SARFAESI Act which as per the said judgmentare “(i) Whether the remedy under Article 226 is available to the petitioner challenging the notice under Section 13(2) of the SARFAESI Act? (ii) Whether the respondent bank has satisfied the requirement of asset classification under the Prudential Norms as framed under Master Circular of the RBI?”
 
2. In normal course we would not have entertained this writ petition inasmuch as no measures under Section 13(4) of the SARFAESI Act have been taken by the first respondent bank but we have heard the writ petition at length after permitting the respondent to file a counter affidavit in view of the fact that the petitioner questions the classification of its account, by the first respondent bank, as a Non-Performing Asset (NPA). The foundation of the writ petition and the basic contention of the petitioner, therefore, is that the declaration of the petitioner's account as NPA is not justifiable and consequently the jurisdictional fact necessary for invocation of Section 13 of the SARFAESI Act is non-existent in this case.”
 
It further states, "14. What was expected by this court was not as to whether the officers of the respondent-bank are aware of the circulars and the judgments, but what had been directed is to consider as to whether the account of the petitioner falls within the said category as defined in the circulars and such consideration should have come out in the form of a speaking consideration i.e., by assigning reasons as observed by the Hon'ble Supreme Court. Even the contents of para 5 does not disclose this aspect of the matter where it only says that the value of the security being more has no bearing towards classification without indicating what else was the method followed for classification.
 
Thought the learned counsel for the respondents attempted to point out the circular of R.B.I., the same does not serve any purpose at this stage since neither the reply dated 25th May, 2005 nor the objection statement filed in this petition would refer to the details in this regard and what is required is not to notice the R.B.I guidelines alone but to indicate from the materials on record that the account in question falls within the guidelines. Only when that is done the respondents would be at liberty to proceed in accordance with law. Hence it requires reconsideration at the hands of the respondents themselves."And again the Hon’ble High Court points out, "37. Next we come to the question as to whether it is on whims and fancies of the financial institutions to classify the assets as non-performing assets, as canvassed before us. We find it not to be so”.
 
The judgment further says, “Thus, from the above, it is clear that the classification of an account as NPA must be in accordance with the directions or guidelines relating to asset classification issued by the RBI. The said aspect of classification of the account as NPA, therefore, assumes any amount of importance and is the first step that is necessary to be satisfied by the creditor bank for invoking the provisions of the SARFAESI Act.
 
It would, therefore, be open for the borrower to invoke the jurisdiction of this Court seeking judicial review of such decision of a creditor declaring his account as NPA, in view of the fact that such classification by itself leads to serious consequences of invocation of the SARFAESI Act against the borrower. Further, Section 13(3)(A) of the SARFAESI Act inserted by amendment consequent upon a decision of the Supreme Court in MARDIA CHEMICALS's case (2 supra) makes the position further clear that mere rejection of objections of the borrower to the notice of the creditor under Section 13(2) of the SARFAESI Act, would not give rise to cause of action to invoke jurisdiction of DRT under Section 17 of the SARFAESI Act, unless measures as envisaged under sub-clause (4) of Section 13 of the SARFAESI Act are taken by the creditor.” The most important aspect of the judgment is, “19. We are, however, not persuaded to accept the said submission of the learned counsel for the respondents for the reason that a serious civil consequence will flow against the borrower, the moment his account is classified as NPA and thereafter, the proceedings are taken demanding entire outstanding amount by issuing a notice under Section 13(2) of the SARFAESI Act.
 
The appropriate adjudicatory internal mechanism as envisaged by the Supreme Court is not evolved as is evident from the present case. In fact, the only reply which the bank gave to the objections of the petitioner was that 'we would like to bring to you attention that the said account was classified as NPA on 31.05.2006 and bank has every right to take legal steps under the SARFAESI Act to recover its outstanding overdues from the said NPA account' (see reply of the bank dated 01.09.2006).
 
 There is no reference in the said reply as to when and how the account was classified as NPA, particularly, when the petitioner has asserted to the contrary and has sent detailed objections to the very classification of the said account based upon the prudential norms referred to above. The judicial review before this Court is, therefore, certainly available to the borrower in such circumstances. The first question whether the notice issued u/s 13(2) of SARFAESI Act can be challenged is accordingly answered.
 
Regarding the application of section 13(4) of SARFESI Act the judgment says, “21. The Supreme Court in MARDIA CHEMICALS's case (2 supra) in relevant paragraphs 45 and 46 has laid down as follows:
 
"45...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 noncompliance 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 financingwhich 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.
 
It would certainly provide guidance to the secured debtors in general in conducting the affairs in a manner that they may not be found defaulting and being made liable for the unsavory steps contained under sub-section (4) of Section 13. 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 toresort 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..."
 
"46. We are holding that 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 noncompliance 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.”It is apparent from the said sections of the Act that the SARFAESI Act comes into effect only if there is crystallized liability and that the account should be classified as NPA. Therefore, the judgment states, “23.
 
The right of the borrower to have a due consideration of objections is, therefore, an important right of the borrower where the bank is bound to apply its mind and inform the borrower of its reasons as to why and how the account is classified as NPA, particularly, when the borrower raises specific objections in that regard. The reply of the bank must indicate application of mind by the bank that the decision of the bank in classifying the account as NPA was fully in conformity with the prudential norms of RBI. Non-consideration of the said objection by mere statements in the reply that the bank has considered the same cannot be said to be the fulfillment of the obligation of the bank under Sections 13(2) and 13(3)(A) of the SARFAESI Act.” Thus the second question also is clarified well.
 
Yet in another case of Madras High Court in the matter of W.P.No.15272 of 2009, Sheeba Philominal Merlin vs. The Repatriates Co-op Finance Bank on 10 August 2010, the judgment pronounced by the said High Court is worth recalling. The relevant portion is cited here with, “As per the Act, the first step would be to issue notice U/s. 13(2) by the authorised officer who is deemed to be armed with a money decree which attained finality. By the statute the authorised officer, is clothed with powers of trial court and execution court and the code of Civil Procedure which governs the civil proceedings is no more necessary. To put it otherwise, by the Special Act, the authorized officer acts like a Civil Court clothed with powers hitherto exercised by it.”
 
The judgment continues, “The financial institutions, namely the lenders owe a duty to act fairly and in good faith. There has to be a fair dealing between the parties and the financing companies/institutions are not free to ignore performance of their obligation as a party to the contract. They cannot be free from it…………..It is incumbent upon such financial institutions to act fairly and in good faith complying with their part of obligations under the contract. This is also the basic principle of concept of lender's liability. It cannot be a one-sided affair shutting out all possible and reasonable remedies to the other party, namely, borrowers and assume all drastic powers for speedier recovery of NPAs. Possessing more drastic powers calls for exercise of higher degree of good faith and fair play.
 
 The borrowers cannot be left remediless in case they have been wronged against or subjected to unfair treatment violating the terms and conditions of the contract. They can always plead in defense deficiencies on the part of the banks and financial institutions.” Further, the judgment states, “5. The aforesaid Act clothes the authorized officer of the bank with enormous powers to deal with the secured assets to recover the outstanding amounts. Once the power is given, the Courts have held that the same has to be exercised in the way it is to be done and not otherwise. Here is a case where the first respondent/bank, contrary to the Act acted in whimsical and capricious manner and brought the property of the petitioners and sold the same to the fourth respondent in an ill-devised manner which is unknown to law.” But in practice the power vested with the Authorised Officer is abused and misused and it is not being exercised in the way it is to be done and not otherwise by the authorised officer of the bank or financial institution.
 
The verdict further states, “The well-established precepts of public trust and public accountability are fully applicable to the functions which emerge from the public servants or even the persons holding public office.” And the judgment points out further, “82. Principle of public accountability is applicable to such officers/officials with all its vigour. Greater the power to decide higher is the responsibility to be just and fair. The dimensions of administrative law permit judicial intervention in decisions, though of administrative nature, but are ex facie discriminatory. The adverse impact of lack of probity in discharge of public duties can result in varied defects not only in the decision-making process but in the decision as well.
 
Every public officer is accountable for its decision and actions to the public in the larger interest and to the State administration in its governance.” The judgment concludes with the final order, “47. For non-compliance of mandatory provisions of the Act, fraud, lack of fair play, bonafides etc., the entire proceedings initiated by respondent bank in favour of the fourth respondent gets vitiated and is hereby set aside.” And “48. There will be an order of exemplary cost of Rs.50,000/- (Rupees fifty Thousand only) payable by the respondents bank 1 to 3 to the petitioners within 15 days from the date of the receipt of a copy of this order. Consequently, connected M.P.No.1 of 2009 is closed”.
 
Section 17(7) OF SARFAESI Act states, “Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of the application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act,1993 (51 of 1993) and the rules there under.” Further Section 37 of the SARFAESI Act also states, “Application of other laws not barred” in which RDDB Act, 1993 is also included.
 
 Besides, SARFAESI ACT, 2002 states, under section 2- definitions(ha), “ { “Debt” shall have a meaning assigned to it in clause (g) of section 2 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993)}.  Section 2 ((g) of DRT Act, 1993 which defines debt as, “ Debt” means any liability(inclusive of interest) which is claimed as due from any person by a bank or a financial institution or by a consortium of banks or financial institutions during the course of any business activity undertaken by the bank or the bank or financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or assigned , or otherwise, or whether payable under a decree or order of any civil court or any arbitration award or otherwise or under a mortgage and subsisting on, and legally recoverable on, the date of the application.” Such being the definition, it imperative and inevitable to ascertain whether the claim of the bank and financial institution pertains to legally recoverable debtor not for which first of all the debt has to be crystallised.
 
 Unless and until that is done, the bank and the financial institution cannot invoke SARFAESI Act and issue notice u/s 13(2) of the said Act and takefurther action u/s 13(4) of the said Act to take possession of the securities on which security interest has been created by them.The following two aspects are to be considered by the appropriate authorities when the bank and financial institution invoke SARFAESI Act.
 
- The secured creditor / authorised officer must ensure whether the demand made by them under section 13 (2) of SARFAESI Act is for the recovery of legally recoverable debt for which the debt has to be crystallized. Besides, the authorised Officer must also make certain that the representation made and objections raised by the borrower are understood properly by application of mind to the points brought out by the borrower to ascertain without any ambiguity and doubt that he is justified in rejecting the representation and objections of the borrower to realize the legally recoverable dues.
 
- The presiding officer of DRT also should ensure that the bank and the financial institution make certain that they have invoked section 13(4) of SARFAESI Act for the recovery of crystallised and legally recoverable debt only and that they sought the assistance of District Magistrate / Metropolitan Magistrate to take physical possession of the secured assets and that the District Magistrate / Metropolitan Magistrate also extend their assistance only after ascertaining the facts as true and correct as submitted in the affidavit by bank and financial institution for the recovery of legally recoverable debt only.In this connection the following judgment of Madras High Court is worth recalling. “In the matter of V. Noble Kumar vs Standard Chartered Bank, the Madras High Court (DB) vide citation 2011(1) Bankers’ Journal 178 decided on 27.07.10, declared that the proceedings mounted to arbitrary exercise of powers under Sec 14 and therefore the order of the CJM was set aside. The extract of the order is reproduced here below.
 
“19.A perusal of the said order shows that the Chief Judicial Magistrate had merely directed the appointment of a Commissioner for the purpose of taking possession of the schedule mentioned property and to hand over the same to the secured creditor. There is nothing to indicate as to the compliance of the provisions of section 13(2), 13(4) and Rule 8. As there is no reference to the compliance of the provisions by the secured creditor, it must be presumed that no materials were placed before the Chief Judicial Magistrate by the secured creditor in respect of the compliance. Further, the affidavit filed by the bank in support of the petition seeking for vacating interim order, nothing has been stated as to the compliance of the provisions of section1 3(2), 13(4) and particularly Rule 8. It does not also state that even after the advocate commissioner was directed to take possession, the above procedures have been followed. In that view of the matter, the impugned proceedings are unsustainable in the eye of law, as it would amount to arbitrary exercise of the powers conferred under section 14.
 
20. Accordingly, the impugned order of the learned Chief Judicial Magistrate, Chengalpattu, dated 14.12.2009 is set aside. The writ petition is allowed. No costs. Consequently, connected M.Ps. are closed.”
 
The pertinent question is what constitutes legally recoverable debt? Where as definition of debt is given, no where the definition of “legally recoverable” is given either in SARFAESI Act or under RDDB Act. Unless the definition of “legally recoverable” is resolved, it will be subjected to various interpretation and definition. (The author has given his interpretation of “legally recoverable debt in one his articles on the subject matter) Hence, it is apparent that section 13(2) can be challenged at any point of time during the process of adjudication or through the representation and objections submitted by the borrower or through his S.A andthe challenge of section 13(4) of SARFAESI Act need not be confined alone to the steps taken by the bank and financial institution under section 13(4) of SARFAESI Act. 
 
 
T.R.Radhakrishnan,
Banking & Management Consultant,
Facilitator: DRT & SARFAESI CASES and CONSUMER FORUM,
H.R.Trainer: Corporates, Colleges & Schools, & Freelance Writer,
 No. 8, Morya Gardens,                 
Kanadia Road,
Indoe.452016 (Madhya Pradesh)

Sunday, April 26, 2015

Jurisdiction OF DRT Against Guarantor

DRT has no jurisdiction to issue Certificate of Recovery against the Guarantor-By Sri Narendra Sharma in Lawyers' Club

(1) It is respectfully submitted that the recovery proceedings against the Guarantor before hon’ble Debts Recovery Tribunal (hereinafter ‘DRT’ or ‘Tribunal’) under section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter ‘the Act’) are absolutely unlawful. DRT has no jurisdiction to proceed against the Guarantor as he has not taken any "debt", which he has to repay.  As per section 4 of the U.S. Statutes of Frauds, 1677 a promise ‘to answer for the debt, default or miscarriage of another person’ is a contract of guarantee. The Guarantor promises to discharge the debtor’s liability if the debtor should fail to do so. The Guarantor’s liability is therefore secondary to that of the principal debtor {Guild & Co. v. Conrad (1894) 2 QB 885, 896}.
 
1.1  Section 2(g) of the Act defines ‘debt' to mean:
 
“any liability (inclusive of interest) which is claimed as due from any person by a bank or a financial institution or by a consortium of banks or financial institutions during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or assigned, or whether payable under a decree or order of any civil Court or any arbitration award or otherwise or under a mortgage and subsisting and legally recoverable on, the date of the application.”
 
Hon’ble Bombay High Court in Centurion Bank Ltd. vs Indian Lead Ltd. And Anr. {(2000) 100 Comp Cas 537 Bom; (1999-3) 101 Bom LR 556; Decided on 20 August, 1999} has, inter alia, held as follows.
 
"19. It has been pointed out that defendant No. 2 is a guarantor against whom the suit is only for recovery of money. The suit against the guarantor is not a suit for recovery of debt but for enforcement of the guarantee." (Emphasis supplied)
 
The readers may please note that, unless stated otherwise, the contents of all the following paragraphs are the relevant extract from the judgment of Hon’ble Supreme Court in Nahar Industrial Enterprises Ltd vs Hongkong & Shanghai Banking Corp. {2009 (2) DRTC 273 (SC); Decided on 29 July, 2009}. (Further, the italics/bold/underline have been supplied by me in all the following paragraphs as per the comparative importance of the content).
  
(2) Hon’ble Supreme Court in Karnataka State Financial Corporation Vs N. Narasimahaiah & Ors {2008 AIR 1797, 2008 (5) SCC 176; Decided on 13/03/2008} has, inter alia, observed as follows.
 
“12. If special provisions are made in derogation to the general right of a citizen, the statute, in our opinion, should receive strict construction. “
 
14. Section 29 of the Act nowhere states that the corporation can proceed against the surety even if some properties are mortgaged or hypothecated by it. The right of the financial corporation in terms of Section 29 of the Act must be exercised only on a defaulting party. There cannot be any default as is envisaged in Section 29 by a surety or a guarantor. The liabilities of a surety or the guarantor to repay the loan of the principal debtor arises only when a default is made by the latter.
 
18. Apart from the defences available to a principal borrower under the provisions of the Indian Contract Act, a surety or a guarantor is entitled to take additional defence. Such additional defence may be taken by the guarantor not only against the corporation but also against the principal debtor. He, in a given situation, would be entitled to show that the contract of guarantee has come to a not. Ordinarily, therefore, when a guarantee is sought to be enforced, the same must be done through a court having appropriate jurisdiction. In the absence of any express provision in the statute, a person being in lawful possession cannot be deprived thereof by reason of default on the part of a principal borrower.” (Emphasis supplied)
 
(3) Therefore, now let us examine whether DRT is a court having appropriate jurisdiction?
  
(4) Section 17 of the Act reads as under:


 
“Section 17 - Jurisdiction, powers and authority of Tribunals.--(1) A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions.”
 
Section 18 bars the jurisdiction of all courts in relation to the matters specified in Section 17 (except of the Supreme Court and of a High Court under Articles 226 and 227 of the Constitution).
 
“18. Bar of Jurisdiction.—On and from the appointed day, no court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court, and a High Court exercising jurisdiction under articles 226 and 227 of the Constitution) in relation to the matters specified in section 17.”

 
4.1 Section 22 provides for the procedure and powers of the Tribunal and Appellate Tribunal, sub-section (1) whereof reads as under: “Section 22 - Procedure and Powers of the Tribunal and the Appellate Tribunal.--(1) The Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Tribunal and the Appellate Tribunal shall have powers to regulate their own procedure including the places at which they shall have their sittings.”
 
4.2  The term ‘jurisdiction’ means the authority to enforce laws or pronounce legal judgments. Proceedings before DRT is sui generis (means ‘of his own kind’ or ‘peculiar to himself’) and totally different from the procedure in a Civil Court.
 
(5) Section 2 (2) of the Code of Civil Procedure, 1908 (hereinafter ‘the Code’) defines a “decree” to mean the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. `Judge' has been defined under Section 2(8) of the Code to mean the presiding officer of a Civil Court. Section 2(14) of  the Code defines an “order” to mean the formal expression of any decision of a Civil Court which is not a decree.
 
(6) Delhi High Court in Cofex Exports Ltd. vs. Canara Bank [AIR 1997 Delhi 355] opined that Debt Recovery Tribunal is not a court but is a Tribunal having been created by a statute vested with a special jurisdiction to try only applications by banks or financial institutions to recover any debt. Although having regard to the provisions contained in clauses (a) to (b) of sub-section (2) of Section 22 of the Act it had all the trappings of a court but it was held not to be a court as such. In relation to the conflict of jurisdiction between the Civil Court and the Tribunal, it was observed:
 
“39. Finality shall attach to the findings arrived at and reached by each of the two within its respective jurisdictional competence. Issues heard and decided by the Tribunal shall operate as res judicata and shall bind the parties in the suit before the civil court by virtue of explanation VIII to S. 11 Civil Procedure Code. However, the civil court shall be free to decide such issues as lie within its jurisdictional competence. If the civil court must decide an issue seized by it and within its competence and if there be an unavoidable conflict between the findings recorded by the civil court and by the Tribunal, the finding of Civil Court would obviously override and supersede the findings recorded by the Tribunal for a court is a court and tribunal is a tribunal; the former adjudicates on trial, the later holds only a summary inquiry guided by principles of natural justice as the Act provides.”
 
(Emphasis supplied)
 
It was, thus, held that the Tribunal is inferior to that of the Civil Court.
 
(7) Civil court is a body established by law for administration of justice. We may notice that a learned Single Judge of the Calcutta High Court in State Bank of India vs Madhumita Construction Pvt Ltd (AIR 2003 Cal. 7) and a Division Bench of the Delhi High Court in Cofex Exports Ltd. vs. Canara Bank [AIR 1997 Delhi 355] have held that the DRT is not a court and it exercises powers of a civil court only in respect of limited matters. Civil Courts are constituted under statutes, like Bengal, Agra and Assam Civil Courts Act, 1887. Pecuniary and territorial jurisdiction of the civil courts are fixed in terms thereof. Jurisdiction to determine subject matter of suit, however, emanates from Section 9 of the Code.

 
7.1 In P. Sarathy v. State Bank of India {2000 (5) SCC 355} Hon’ble Supreme Court has held :-
 
“12. It will be noticed that Section 14 of the Limitation Act does not speak of a “civil court” but speaks only of a “court”. It is not necessary that the court spoken of in Section 14 should be a “civil court”. Any authority or tribunal having the trappings of a court would be a “court” within the meaning of this section.
 
13. ... in order to constitute a court in the strict sense of the term, an essential condition is that the court should have, apart from having some of the  trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement”. (Emphasis supplied)
  
(8)  If the Tribunal was to be treated to be a civil court, the debtor or even a third party must have an independent right to approach it without having to wait for the Bank or Financial Institution to approach it first. The continuance of its counter-claim is entirely dependant on the continuance of the applications filed by the Bank. Before it no declaratory relief can be sought for by the debtor. It is true that claim for damages would be maintainable but the same have been provided by way of extending the right of counter-claim.
 
8.1 Debt Recovery Tribunal cannot pass a decree. It can issue only recovery certificates. [See Sections 19(2) and 19(22) of the Act]. The power of the Tribunal to grant interim order is attenuated with circumspection. {See Dataware Design Labs. v. State Bank of India, {[2005] 12 Comp. Cas. 176 (Ker) at 184}.


 
8.2 Concededly in the proceeding before the Debt Recovery Tribunal detailed examination; cross-examinations, provisions of the Evidence Act as also application of other provisions of the Code of Civil Procedure like interrogatories, discoveries of documents and admission need not be gone into. Taking recourse to such proceedings would be an exception. Entire focus of the proceedings before the Debt Recovery Tribunal centers round the legally recoverable dues of the bank.

 
8.3 For the aforementioned purpose, we must bear in mind the distinction between two types of courts, viz., civil courts and the courts trying disputes of civil nature. Only because a court or a tribunal is entitled to determine an issue involving civil nature, the same by itself would not lead to the conclusion that it is a civil court. For the said purpose, as noticed hereinbefore, a legal fiction is required to be created before it would have all attributes of a civil court. The Tribunal could have been treated to be a civil court provided it could pass a decree and it had all the attributes of a civil court including undertaking of a full-fledged trial in terms of the provisions of the Code of Civil Procedure and/or the Evidence Act.
 
8.4  It is now trite law that jurisdiction of a court must be determined having regard to the purpose and object of the Act. If the Parliament, keeping in view the purpose and object thereof thought it fit to create separate tribunal so as to enable the banks and the financial institutions to recover the debts expeditiously wherefor the provisions contained in the Code of Civil Procedure as also the Evidence Act need not necessarily be resorted to, in our opinion, by taking recourse to the doctrine of purposive construction, another jurisdiction cannot be conferred upon it so as to enable this Court to transfer the case from the civil court to a tribunal.
  
(9) CONCLUSION: The Tribunal was constituted with a specific purpose as is evident from its statement of objects. The preamble of the Act also is a pointer to that too. We have also noticed the scheme of the Act. It has a limited jurisdiction. Under the Act, as it originally stood, did not even have any power to entertain a claim of set off or counter-claim. No independent proceedings can be initiated before it by a debtor. A debtor under the common law of contract as also in terms of the loan agreement may have an independent right. No forum has been created for endorsement of that right. Jurisdiction of a civil court as noticed hereinbefore is barred only in respect of the matters which strictly come within the purview of Section 17 thereof and not beyond the same. The Civil Court, therefore, will continue to have jurisdiction. Even in respect of set off or counter-claim, having regard to the provisions of sub-sections (6) to (11) of Section 19 of the Act, it is evident :-
 
a) That the proceedings must be initiated by the bank
 
b) Some species of the remedy as provided therein would be available therefor.
 
c) In terms of sub-section (11) of Section 19, the bank or the financial institution is at liberty to send a borrower out of the forum.
 
d) In terms of the provisions of the Act, thus, the claim of the borrower is excluded and not included.
 
e) In the event the bank withdraws his claim the counter-claim would not survive which may be contrasted with Rule 6 of Order VIII of the Code.
 
f) Sub-section (9) of Section 19 of the Act in relation thereto has a limited application.
 
g) The claim petition by the bank or the financial institution must relate to a lending/borrowing transaction between a bank or the financial institution and the borrower.
 
h) The banks or the financial institutions, thus, have a primacy in respect of the proceedings before the Tribunal.
 
 i) An order of injunction, attachment or appointment of a receiver can be initiated only at the instance of the bank or the financial institution. We, however, do not mean to suggest that a Tribunal having a plenary power, even otherwise would not be entitled to pass an order of injunction or an interim order, although ordinarily expressly it had no statutory power in relation thereto.
 
j) It can issue a certificate only for recovery of its dues. It cannot pass a decree.
 
It was held by hon’ble Supreme Court that the Tribunal, therefore, would not be a Civil Court.
 
(10) In State Bank of India v. Madhumita Construction (Pvt.) Ltd. and others, [AIR 2003 Cal 7], the Calcutta High Court has held:-
 
“13.  The Tribunal constituted under the DRT Act is not a Court. It is a Tribunal having the trappings of a Court. A Tribunal with trappings of Court cannot be equated with a Court as is understood from the expression “Court”. A Court is a body established by law for the administration of justice by Judges or Magistrates. This definition may include a Tribunal as well. Inasmuch as, it is also a body constituted or established by law for administration of justice. But, when it comes to the distinction between Court and Tribunal, then the Court as it understood is different from a Tribunal. The word “Court”, however, has not been defined anywhere in any law.”
 
10.1  In Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd.,[ (2007) 6 SCC 236 ], Supreme Court has held:-
 
“Para 77. In Harinagar Sugar Mills v. Shyam Sundar Jhunjhunwala this Court held: (AIR p. 1680, para 32)
 
By `courts' is meant courts of civil judicature and by `tribunals', those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is  undoubtedly one of the attributes of the State, and is aptly called the judicial power of the State.”

 
10.2  In Supreme Court Legal Aid Committee v. Union of India it was held: (SCC p.745, para 14)
 
 “14. It is common knowledge that a `court' is an agency created by the sovereign for the purpose of administering of justice. It is a place where justice is judicially administered. It is a legal entity.”
 
(11) EXCLUSION OF JURISDICTION MUST BE EXPRESS:
 
It must be remembered that the jurisdiction of a civil court is plenary in nature. Unless the same is ousted, expressly or by necessary implication, it will have jurisdiction to try all types of suits.
 
11.1  In Dwarka Prasad Agarwal v. Ramesh Chander Agarwal, [(2003) 6 SCC 220] five principles were laid down stating :-

 
“22. The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil courts to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of a civil court requires strict interpretation. The court, it is well settled, would normally  lean in favour of construction, which would uphold retention of jurisdiction of the civil court. The burden of proof in this behalf shall be on the party who asserts that the civil court's jurisdiction is ousted. (See Sahebgouda v. Ogeppa, (2003) 6 SCC 151.) Even otherwise, the civil court's jurisdiction is not completely ousted under the Companies Act, 1956.


 
 
11.2    In Nagri Pracharini Sabha v. Vth Addl. Distt. and Sessions Judge, [1991 Supp (2) SCC 36] Supreme Court has held :-


“2. A litigant having a grievance of a civil nature has, independently of any statute, a right to institute a suit in the civil court unless its cognizance is either expressly or impliedly barred. The position is well-settled that exclusion of jurisdiction of the civil court is not to be readily inferred and such exclusion must be either expressly or implied.
 
 
11.3   In Ramesh Chand Ardawatiya v. Anil Panjwani, [(2003) 7 SCC 350] Supreme Court opined :-

 
“19. ..Where there is a special tribunal conferred with jurisdiction or exclusive jurisdiction to try a particular class of cases even then the civil court can entertain a civil suit of that class on availability of a few grounds. An exclusion of jurisdiction of the civil court is not to be readily inferred. (See Dhulabhai v. State of M.P.)
 
11.4 The Act, although, was enacted for a specific purpose but having regard to the exclusion of jurisdiction expressly provided for in Sections 17 and 18 of the Act, it is difficult to hold that a civil court's jurisdiction is completely ousted. Indisputably the banks and the financial institutions for the purpose of enforcement of their claim for a sum below Rs. 10 lakhs would have to file civil suits before the civil courts. It is only for the claims of the banks and the financial institutions above the aforementioned sum that they have to approach the Debt Recovery Tribunal. It is also without any cavil that the banks and the financial institutions, keeping in view the provisions of Sections 17 and 18 of the Act, are necessarily required to file their claim petitions before the Tribunal. The converse is not true.
 
11.5  Debtors can file their claims of set off or counter-claims only when a claim application is filed and not otherwise. Even in a given situation the banks and/or the financial institutions can ask the Tribunal to pass an appropriate order for getting the claims of set-off or the counter claims, determined by a civil court. The Tribunal is not a high powered tribunal. It is a one man Tribunal. Unlike some Special Acts, as for example Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 it does not contain a deeming provision that the Tribunal would be deemed to be a civil court.
 
11.6  The liabilities and rights of the parties have not been created under the Act. Only a new forum has been created. The banks and the financial institutions cannot approach the Tribunal unless the debt has become due. In such a contingency, indisputably a civil suit would lie.
 
(12) Sub-section (3) of Section 22 of the Act raises a legal fiction that the proceeding before the Tribunal or the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 and for all the purposes of Section 196 of the Indian Penal Code, 1860. The very fact that a legal fiction has been created and the Tribunal or the Appellate Tribunal shall be deemed to be a civil court for purposes of Section 195 and Chapter XXVI of the Code of Civil Procedure, 1973, itself suggests that the Parliament did not intend to take away the jurisdiction of the civil court. In any event, the said legal faction has a limited application. Its scope and ambit cannot be extended.
 
12.1 Supreme Court accepted that disposal of a civil suit takes a long time. But indisputably remedy of summary and speedy trial by itself would not be sufficient to oust the jurisdiction of the civil court. Had the intention of the Parliament been so, it could have expressly said so. Casus omissus, as is well known, cannot be supplied.
 
 


(13)  VESTED RIGHT OF APPEAL: When a person files a civil suit his right to prosecute the same in terms of the provisions of the Code as also his right of appeal by way of first appeal; second appeal etc. are preserved. Such rights cannot be curtailed, far less taken away except by reason of an express provision contained in the statute. Such a provision in the statute must be express or must be found out by necessary implication.
 

 
13.1 The Code not only contains procedural provisions but also substantive rights ; right of appeal is one of them. A forum of appeal is determined in terms of the provisions of the Code having regard to the pecuniary jurisdiction of the Court as may be notified by the appropriate Government from time to time. A suitor has the right to maintain a first appeal. A second appeal also is maintainable before a High Court, subject of course to the effect that questions of law must be there for the court's consideration. For the said purpose no pre-deposit is required to be made, as is necessary in terms of the Act, that 75% of the awarded amount is required to be deposited, subject of course, to an order to the contrary, which may be passed by the Debt Recovery Appellate Tribunal. Such a right of conditional appeal, in our opinion, curtails party's right to maintain an appeal as a matter of right.
 
13.2  In the event, however, if a civil suit is transferred to the Debt Recovery Tribunal, the plaintiff would be deprived of his right in relation to the procedural mechanism as contained in the Code as also the Evidence Act. His right of appeal would also stand curtailed. While exercising the power of transfer, the High Court and this Court would thus be curtailing the right of a suitor indirectly which could not be done directly. It clearly establishes the Parliamentary intent that only civil suits are subject matter of inter State transfer from one civil court to another civil court. If such a power is exercised, all the rights of the plaintiff remain intact, no right is taken away and no right is diluted.
 
(14) What agreements are contracts


 
Section 10 of the Indian Contract Act, 1872 provides that - An agreement between two or more parties becomes a contract when the following conditions are satisfied:
 
(1) …xxx…    
(2) ……xxx………….
(3) The parties’ consent is free.
(4) ……..xxx………..
 
14.1 “Free consent” defined

 
“Consent is said to be free when it is not caused by:


 
(1) ………xxx……………
(2) undue influence, as defined in Section 16, or
(3) ……xxx…...
(4) ………xxx…………...
(5) ……xxx………………

 
Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake.”
 
(15) “Undue Influence”           
 
Section 16 of the Contract Act provides that-
 
“(1) A contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
 
(2) ………xxx…………….
 
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of other.” (Emphasis supplied)
 
15.1  “Section 19-A. Power to set aside contract induced by undue influence.—When consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused.”
 
15.2 Position of dominance necessary for presumption to arise
 
The Privy Council in Raghunath Prasad v Sarju Prasad AIR 1924 PC 60 pointed out the conditions for presumption to arise. Referring to sub-section (3) of Section 16, which provides for presumption of undue influence, Lord SHAW observed as follows:
 
“By this sub-section three matters are dealt with. In the first place, the relations between the parities to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage has been reached, viz., the issue whether the contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of onus probandi. The burden of proving that the contract was not induced by the undue influence is to lie upon the person who was in a position to dominate the will of the other.
 
Error is almost sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered  is the relations of these parties. Were they such as to put one in a position to dominate the will of the other?” (Emphasis supplied)
           
15.3 Inequality of bargaining power
 
The presumption of undue influence may also arise from the fact that there is such an inequality of bargaining power between the parties that one can cause economic duress to the other. The decision of the Court of Appeal in Lloyds Bank v. Bundy (1975) 1 QB 326. is a remarkable illustration of the concept of inequality of bargaining power.

 
A  contractor borrowed a sum of money from a bank. He could not pay back in time. The banker pressed for payment or for security. He suggested that his father might mortgage the family’s only residential house. The bank officer visited the father and obtained his signatures upon readymade papers. The contractor still could not pay and the banker sought to enforce the mortgage which might have meant throwing out of the family from its only residence. Accordingly, Mr Bundy relied upon the unfair character of the mortgage. He was allowed to set aside the mortgage.
 
15.4   Judicial intervention for rescuing parties from unreasonable terms
 
In Central Inland Water Transport Corpn vs. Brojo Nath Ganguly (1986 3 SCC 156, 206)  the Supreme Court has noted that the word “unconscionable” means something as shows no regard for conscience and which is irreconcilable with what is right or reasonable. The matter before the court was a service contract. A clause in the contract empowered the employer (a Govt. undertaking) to remove an employee by three months’ notice or pay in lieu. The employee, who contested the validity of this clause, was removed by handing him over a three months’ pay packet. The Supreme Court regarded the clause to be constitutionally as well as contractually void. The court added that any term which is so unfair and unreasonable as to shock the conscience of the court would be opposed to public policy therefore also void under section 23 of the Contract Act. The contract was not based upon a real consent. It was rather an imposition upon a needy person. The term was unconstitutional because it was so absolute that any officer could be made a target irrespective of his conduct, good or bad.  (Emphasis supplied)
 
15.5  Commenting upon this expanding power of the court to relieve a party from the consequences of his own contract, a learned writer J H Baker has said that “freedom of contract turns out to be a misleading guide when so many contracts are not free in the economic sense. The notion of contract as private legislation appears less attractive when legislation is always drawn up one-sidedly. Judges are empowered to read in terms which are not there, or read out terms which are there. They are to impose reasonableness. Whatever is not reasonable is not law. If the parties have agreed to something unreasonable, they should be treated as if they have not agreed at all and released”. (Emphasis supplied) (J. H. Baker, From Sanctity of Contract to Reasonable Expectation, Current Legal Problems 1979).
 
15.6   Serious terms of a contract must be specifically brought to the notice of the parties


 
The Bombay High Court in Road Transport Corpn Vs. Kirloskar Bros Ltd ( AIR 1981 Bom 299 ) said that it is for the carrier to plead and prove that the print on the receipt was brought to the notice of the consignor and that he had agreed to and accepted the same. The Court held that it is necessary that serious terms of a contract must be specifically brought to the notice of the parties whose rights are sought to be curtailed. In Oriental Fire and General Ins Co Vs. New Suraj Transport Co (AIR 1985 All 136) the consignment note was not even signed by the booking party or his agent, the Allahabad High Court held that the consignor was not bound by a printed term about the exclusive jurisdiction. The Court said that something more must be done than merely printing the terms on consignment documents. (Emphasis supplied)
 
15.7 In Road Transport Organisation of India vs. Barunai Powerloom Weaver’s Coop Society Ltd ( 1994 84 Cal LT 174 ) the Calcutta High Court held that the law requires that before making a person bound by any such term ( a clause in a consignment note as to exclusive jurisdiction ) it must be proved that the same was brought to the knowledge of the consignor in such a way that it should seem to be the result of a mutual assent. In Grandhi Pitchaiah Venkatraju & Co vs. Palukuri Jagannadham & Co ( AIR 1975 AP 32 ) where a consignment way bill contained the words “subject to Calcutta jurisdiction”,  the Andhra Pradesh High Court ignored it since it was not one to which the plaintiff assented.  Following these principles in East India Transport Agency vs. National Insurance Co ( AIR 1991 AP 53 FB ) the Andhra Pradesh High Court came to the conclusion that a term as to the place of suit was not binding on the insurer who had paid out the consignee and who was  then suing the carrier for the negligent loss of the goods unless it could be proved that the insurer too was made or was otherwise aware of the terms. 
 
15.8 The law plays in this respect the role of a parent. It has been opined by the learned author Anthony T Kronman, in Paternalism and the Law of Contracts, (1988) 32 Yale Law Journal 763 “A person who would give away too much of his own liberty must be protected from himself, no matter how rational his decision or compelling the circumstances.” (J. H. Baker, From Sanctity of Contract to Reasonable Expectation, Current Legal Problems 1979).
 
Therefore, it is desirable that the Courts should take cognizance of the legal gimmick being played by the Banks in drafting their documents regarding personal guarantee agreement and if the Guarantor has agreed to something unreasonable, he should be treated as if he has not agreed at all and released.
 
(16) Contract of Guarantee - Scheme of Indian Contract Act, 1872
 
Sections 139, 140 and 141 of the Indian Contract Act, 1872 provide as follows.
  
139. Discharge of surety by creditor’s act or omission impairing surety’s eventual remedy.—If the creditor does any act which is inconsistent with the rights of the surety, or omits to do any act which his duty to the surety requires him to do, and the eventual remedy of the surety himself against the principal debtor is thereby impaired, the surety is discharged.
 
140. Rights of surety on payment or performance.—Where a guaranteed debt has become due, or default of the principal debtor to perform a guaranteed duty has taken place, the surety, upon payment or performance of all that he is liable for, is invested with all the rights which the creditor had against the principal debtor.
 
141. Surety’s right to benefit of creditor’s securities.—A surety is entitled to the benefit of every security which the creditor has against the  principal debtor at the time when the contract of suretyship is entered into, whether the surety knows of the existence of such security or not; and if the creditor loses, or without the consent of the surety, parts with such security, the surety is discharged to the extent of the value of the security.
 
(17)It is undisputed that, firstly, there is such an inequality of bargaining power between the Bank and the Guarantor that the Bank can cause economic duress to the Borrower and/or Guarantor; secondly, the personal guarantee agreement is always drawn up one-sidedly, not limited to, but including the mischievous forced waiver of certain provisions of the Contract Act; thirdly it results in inference that the personal guarantee agreement is not based upon a real consent, it is rather an imposition upon a needy person, hence the Court would regard it as opposed to public policy, therefore void under section 23 of the Contract Act; fourthly,  therefore the presumption of undue influence is bound to arise between the Bank and the Guarantor while executing the personal guarantee agreement.
 
17.1 The consent of the Guarantor having obtained by undue influence by the Bank, the personal guarantee agreement is voidable at the option of the Guarantor under section 19-A of the Indian Contract Act, 1872.

 
17.2   Section 16 of the Contract Act provides-


 
a. vide Sub-section (1) A contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.      
 
b. Vide Sub-section (3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of other.”
 
c. Therefore, the Guarantor is entitled to submit before DRT that the personal guarantee agreement is not based upon a real consent, but was induced by undue influence by the Bank.
 
17.3 Further, the Guarantor can claim discharge under Sections 139 and can also claim his other rights under Sections 140 and 141 of the Indian Contract Act, 1872. However, admittedly no declaratory relief can be granted by the Tribunal to the Guarantor, because as detailed above, DRT is not a court having appropriate jurisdiction. By necessary implication, the logical conclusion is that the Tribunal shall have no jurisdiction to proceed for enforcement of the guarantee against the Guarantor.
 
(18) Section 22 of the Act provides that the Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908, therefore, DRT is not obliged to undertake a full-fledged trial in terms of the provisions of the Code of Civil Procedure and/or the Evidence Act. Therefore, the Guarantor would be deprived of his right in relation to the procedural mechanism as contained in the Code as also the Evidence Act. Further, before the Tribunal no declaratory relief can be sought for by the Guarantor.

 
18.1In Dhulabhai v. State of M.P.[ (1968) 3 SCR 662 ] a five judge Constitution Bench of hon’ble Supreme Court has opined:-
 
 
“The result of this inquiry into the diverse views expressed in this Court may be stated as follows:
 
 “(1)  Where  the statute gives a finality  to the orders of the special tribunals the  Civil Court’s  jurisdiction  must  be  held  to be excluded if  there is adequate remedy to do what  the Civil Courts would normally do in  a  suit….”  

 
However, as detailed above, in the scheme of the Act there is no adequate remedy to do what  the Civil Courts would normally do in  a  suit, hence DRT is not a court having appropriate jurisdiction, consequently DRT has no jurisdiction to proceed for enforcement of the guarantee against the Guarantor (END).
 
Note: The views expressed are my personal and a view point only.
  
Author:
Narendra Sharma
Consultant (Business Laws)
 
1.  It is submitted that the recovery proceedings against the Guarantor before hon’ble Debts Recovery Tribunal (hereinafter ‘DRT’ or ‘Tribunal’) under section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter ‘DRT Act’) are absolutely without jurisdiction. As per BLACK’s Law Dictionary, Ninth Edition, at page 1389, “recovery” means the regaining or restoration of something lost or taken away. It follows that the DRT has no jurisdiction to proceed against the Guarantor as he has not taken any "debt", which he has to repay.  As per section 4 of the U.S. Statutes of Frauds, 1677 a promise ‘to answer for the debt, default or miscarriage of another person’ is a contract of guarantee. The Guarantor promises to discharge the debtor’s liability if the debtor should fail to do so. The Guarantor’s liability is therefore secondary to that of the principal debtor {Guild & Co. v. Conrad (1894) 2 QB 885, 896}.
 
1.1   Section 2(g) of the Act defines ‘debt' to mean:
 
“any liability (inclusive of interest) which is claimed as due from any person by a bank or a financial institution or by a consortium of banks or financial institutions during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or assigned, or whether payable under a decree or order of any civil Court or any arbitration award or otherwise or under a mortgage and subsisting and legally recoverable on, the date of the application.”
 
Hon’ble Bombay High Court in Centurion Bank Ltd. vs Indian Lead Ltd. And Anr. {(2000) 100 Comp Cas 537 Bom; (1999-3) 101 Bom LR 556; Decided on 20 August, 1999} has, inter alia, held as follows.
 
"19. It has been pointed out that defendant No. 2 is a guarantor against whom the suit is only for recovery of money. The suit against the guarantor is not a suit for recovery of debt but for enforcement of the guarantee." (emphasis supplied)
 
As per BLACK’s Law Dictionary, Ninth Edition, at page 608, “enforcement” means the act or process of compelling compliance with a law, mandate, command, decree or agreement.
 
DRT DOES NOT HAVE  ANY  INHERENT  POWERS  AND  IT  IS CLEAR THAT SECTION 19(25)  CONFERS  LIMITED  POWERS
 
2. Hon’ble Supreme Court in Standard Chartered Bank V. Dharminder Bhohi and others {(2013) 15 SCC 341; Decided on 13.09.2013} has, inter alia, observed as follows.
 
27. The tribunal does not have  any  inherent  powers  and  it  is limpid that Section 19(25)  confers  limited  powers.   In this context, we may refer to a three-Judge Bench decision in  Upper  Doab  Sugar  Mills  Ltd.  v.  Shahdara  (DelhiSaharanpur Light Rly. Co. Ltd.[ (AIR 1963 SC 217] wherein it has been held that when the tribunal has not  been  conferred  with  the jurisdiction to direct for refund, it cannot do  so. The  said principle has been followed  in  Union  of  India  v. Orient Paper and Industries Limited[(2009) 16 SCC 286]. (emphasis supplied)
 
28. In Union of India v.  R.  Gandhi,  President,  Madras  Bar Association [(2010) 11 SCC 1], the Constitution Bench, after referring to the opinion of Hidayatullah, J. in Harinagar Sugar  Mills Ltd. v. Shyam Sunder Jhunjhunwala [AIR 1961 SC 1669],  the  pronouncements in   Jaswant  Sugar  Mills  Ltd.  v.  Lakshmi Chand [AIR 1963 SC 677], Associated Cement Companies Ltd. v.  P.N.  Sharma [AIR 1965 SC 1595]  and Kihoto Hollohan v. Zachillhu [1992 Supp (2) SCC 651], ruled thus: -
 
“45. Though both courts and tribunals  exercise  judicial  power and  discharge  similar  functions,  there  are  certain   well- recognised differences between courts and tribunals. They are:
 
(i) Courts are established by the State and  are  entrusted with the State’s inherent judicial power for administration of justice in general. Tribunals are established  under  a statute to adjudicate upon disputes arising under the  said statute, or disputes of a specified nature. Therefore,  all courts are tribunals. But all tribunals are not courts.
 
(ii)…………..x………..x…………….x…………..x

(iii) While  courts  are  governed  by  detailed  statutory procedural rules, in particular the Code of Civil Procedure  and the Evidence Act, requiring an elaborate  procedure  in decision making, tribunals  generally  regulate  their  own procedure applying the provisions  of  the  Code  of  Civil Procedure only where it  is  required,  and  without  being restricted by the strict rules of the Evidence Act.”
(emphasis supplied)
                         
30.  Section 34 of the RDB Act  provides  that  the  said  Act  would  have overriding effect.  We have referred to the  aforesaid  provisions  to singularly highlight  that  the  sacrosanct  purpose  with  which  the tribunals have been established is to  put  the  controversy  to  rest between the banks and the  borrowers  and  any  third  party  who  has acquired any interest.   They  have  been  conferred  jurisdiction  by special legislations to exercise a particular power  in  a  particular manner as provided under the Act.  It cannot  assume  the  role  of  a  court of different nature which really can grant “liberty to  initiate  any action against the bank”.  It is only required to decide  the  lis that comes within its own domain.  If it  does  not  fall  within  its sphere of jurisdiction it is required to say so.   Taking  note  of  a submission made at the  behest  of  the  auction  purchaser  and  then proceed to say that he is at liberty to file any  action  against  the bank for any omission committed by it has no  sanction  of  law. The said observation is wholly bereft of jurisdiction, and indubitably  is totally unwarranted in the obtaining factual  matrix.” (emphasis supplied)
 
Thus, in September, 2013, hon’ble Supreme Court held that DRT and DRAT do not have  any  inherent  powers  and  it  is clear that Section 19(25) of DRT Act confers  limited  powers on the Tribunals and Appellate Tribunals.   A three-Judge Bench of hon’ble Supreme Court in Upper  Doab  Sugar  Mills  Ltd.  v. Shahdara (Delhi) Saharanpur Light Rly. Co. Ltd.[ (AIR 1963 SC 217] held thatwhen the tribunal has not  been  conferred  with  the jurisdiction to direct for refund, it cannot do  so.The said principle has been followed  in  Union  of  India  v. Orient Paper and Industries Limited [(2009) 16 SCC 286]. It is submitted that by necessary implication the Tribunals and Appellate Tribunals have no jurisdiction to lift the corporate veil in the case of a company being a borrower.
 
Further, a Constitution Bench of Supreme Court in Union of India v.  R.  Gandhi,  President,  Madras  Bar Association [(2010) 11 SCC 1], ruled that Courts are established by the State and  are  entrusted with the State’s inherent judicial power for administration of justice in general. Tribunals are  established  under  a statute to adjudicate upon disputes arising under the  said statute, or disputes of a specified nature. While  courts  are  governed  by  detailed  statutory procedural rules, tribunals  generally  regulate  their  own procedure.
                         
Hence, hon’ble Supreme Court in Standard Chartered Bank (supra) concluded that Section 34 of the DRT Act  provides  that  the  said  Act  would  have overriding effect.  Thus, the  sacrosanct  purpose  with  which  the tribunals have been established is to  put  the  controversy  to  rest between the banks and the  borrowers  and  any  third  party  who  has acquired any interest. They have  been  conferred  jurisdiction  by special legislations to exercise a particular power  in  a  particular manner as provided under the Act.  It cannot  assume  the  role  of  a  court of different nature.  It is only required to decide  the  lis that comes within its own domain. If it does  not  fall  within  its sphere of jurisdiction it is required to say so. It is pertinent to note here that hon’ble Supreme Court observed that the Tribunals and Appellate Tribunals have been established to put the controversy  to  rest between the banks and the  borrowers, however, there is no reference to guarantors. It is settled law that the terms ‘borrowers’ and ‘guarantors’ convey altogether different legal persons.
 
A TRIBUNAL CAN HAVE NO MORE JURISDICTION THAN WHAT IT IS GIVEN BY THE ACT WHICH BRINGS IT INTO EXISTENCES
 
3. A three judge bench of hon’ble Supreme Court in Upper Doab Sugar Mills Ltd. Vs. Shahdara (Delhi) Saharanpur light Railway Company Ltd. {1963 AIR 217; 1963 SCR (2) 333; Decided on 23/04/1962}, while dealing with the issue of the jurisdiction of the Railway Rates Tribunal, has held that when the tribunal has not been conferred with the jurisdiction to direct for refund, it cannot do so and, inter alia, observed as follows.
 
“The Tribunal can have no more jurisdiction than what it is given by the Act which brings it into existences; and if on a proper construction of the words of the statute we find that the Tribunal was not given any such jurisdiction we cannot clothe it with that jurisdiction on any consideration of convenience or equity or justice.
 
What the Tribunal has to do after a complaint is made is mentioned in s. 41 (1) itself. It is said there that the Tribunal shall hear and decide the complaint. The complaint being that something is unreasonable all that the Tribunal has to decide is whether that thing is unreasonable or not.
 
A finding that it is unreasonable does not involve any consideration or decision of what would flow from the finding. In other words, in making the complaint the complainant can ask only for a declaration that the rate or charge is unreasonable and it is only this declaratory relief which the Tribunal has been authorised to give.
 
There is no provision that the Tribunal can also give a consequential relief.
 
The only other thing which the Tribunal is authorised to do in connection with the complaint is to fix "such rate or charge as it consider reasonable". In the absence of anything to indicate to the contrary it is reasonable to think that this fixation can only be prospective, that is, the Tribunal in making this order fixing the reasonable rate or charge will mention a future date for this to come .into operation. Even if it was assumed for the sake of argument that the Tribunal can fix these rates from the date of the complaint that would not give the Tribunal any power to order refund.” (emphasis supplied)
 
Thus, a three judge bench of hon’ble Supreme Court in Upper Doab Sugar Mills (supra) has observed that in making the complaint the complainant can ask only for a declaration that the rate or charge is unreasonable and it is only this declaratory relief which the Railway Rates Tribunal has been authorised to give. There is no provision that the Railway Rates Tribunal can also give a consequential relief. By necessary implication, it may be safely concluded that, prima facie, the subject matter of enforcement of guarantee is not within the jurisdiction of DRT, because there is no provision in DRT Act that the DRT can also give a declaratory relief. Further, hon’ble Supreme Court in Nahar Industrial Enterprises Ltd vs Hongkong & Shanghai Banking Corp. {2009 (8) SCC 646; 2009 (2) DRTC 273 (SC); Decided on 29 July, 2009} has also observed that before DRT no declaratory relief can be sought for by the debtor.
 
DRT AND DRAT HAS NO POWER TO CONFISCATE THE PASSPORTS OR CANNOT DIRECT TO SURRENDER THE PASSPORTS
 
4. Recently, the Debts Recovery Appellate Tribunal, Mumbai in Varun Industries Ltd & Ors Vs Indian Bank {2015 (1) DRTC 303 (DRAT, Mum.); Decided on 21.01.2015) has, inter alia, held as follows.
 
“6. From the perusal of the order, this Court has to say that DRT and DRAT has no power to confiscate the passports or cannot direct to surrender the passports and to pass the impugned order.”
 
Thus, Debts Recovery Appellate Tribunal, Mumbai in Varun Industries Ltd & Ors Vs Indian Bank(supra) has held that DRT and DRAT has no power to confiscate the passports or cannot direct to surrender the passports, and therefore, set aside the order passed by the DRT-I, Mumbai to this effect.
 
NOTHING IS WITHIN THE JURISDICTION OF AN INFERIOR COURT UNLESS IT IS EXPRESSLY SHOWN ON THE FACE OF THE PROCEEDINGS THAT THE PARTICULAR MATTER IS WITHIN THE COGNIZANCE OF THE PARTICULAR COURT.
 
 5. A nine-Judge Constitution Bench of Supreme Court, in Naresh Sridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, has observed as under:-
 
“60. ….. in the case of a superior Court of Record, it is for the Court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior court is entitled to determine for itself questions about its own jurisdiction. That is why this Court did not accede to the proposition that in passing the order for interim bail, the High Court can be said to have exceeded its jurisdiction with the result that the order in question was null and void. In support of this view, this Court cited a passage from Halsbury's Laws of England where it is observed that:-
 
“prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court." (Halsbury's Laws of England, Vol. 9, p. 349).”
 
As detailed in my another Article (see Note-1 below), hon’ble Supreme Court in Karnataka State Financial Corporation Vs N. Narasimahaiah & Ors {2008 AIR 1797, 2008 (5) SCC 176; Decided on 13/03/2008} has observed that ordinarily, when a guarantee is sought to be enforced, the same must be done through a court having appropriate jurisdiction. Vide Halsbury's Laws of England (Vol. 9, p. 349), by necessary implication, it may be safely concluded that prima facie, the subject matter of enforcement of guarantee is not within the jurisdiction of DRT, being an inferior court, unless it is expressly shown on the face of the proceedings that the same is within the cognizance of the DRT.
 
COURTS TO ENSURE  THAT  LEGAL  PROCEEDINGS ARE NOT USED AS A DEVICE FOR HARASSMENT, EVEN OF AN  APPARENT  TRANSGRESSOR OF THE LAW
 
6. A three judge bench of hon’ble Supreme Court in Dashrath Rupsingh Rathod  V. State of Maharashtra & Anr.  {(2014) 9 SCC 129; Decided on 01.08.2014} has, inter alia, observed as follows.
 
“Courts are enjoined to interpret  the  law  so  as  to eradicate ambiguity or nebulousness, andto ensure  that  legal  proceedings are not used as a device for harassment, even of  an  apparent  transgressor of the law. Law’s endeavour is to bring the culprit to book and to  provide  succour for the aggrieved  party but  not  to  harass  the  former  through vexatious proceedings. Therefore, precision and exactitude are necessary especially where the location of a litigation is concerned. “(emphasis supplied)
 
Thus, Hon’ble Supreme Court held that Courts are to ensure  that  legal  proceedings are not used as a device for harassment, even of  an  apparent  transgressor of the law. Law’s endeavour is to bring the culprit to book and to  provide  succour for the aggrieved  party but  not  to  harass  the  former  through vexatious proceedings. Therefore, precision and exactitude are necessary especially where the location of a litigation is concerned.
 
Hence, hon’ble Supreme Court in Standard Chartered Bank (supra) has observed that the Tribunals and Appellate Tribunals have been established to put the controversy  to  rest between the ‘banks’ and the  ‘borrowers’, however, there is no reference to guarantors. It is settled law that the terms ‘borrowers’ and ‘guarantors’ convey altogether different legal persons. However, as detailed above, in the scheme of DRT Act, either in section 2(g) or in section 19 there is no reference to guarantors at all, consequently DRT has no jurisdiction to proceed for enforcement of the guarantee against the Guarantors. (END).
 
Note-1: For a detailed study of this concept the readers may refer to my another Article ‘DRT has no jurisdiction to issue Certificate of Recovery against the Guarantor’ at 
 
Note-2: The views expressed are my personal and a view point only.
 
Author:
Narendra Sharma
Consultant (Business Laws)
(Mobile-9229574214),