Monday, August 13, 2007

Indian Courts & Tribunals

First Appeal posted this on 03.08.2007:

Important Websites-Continuation
National Consumer Disputes Redressal Commission
Central Administrative Tribunal
Central Excise & Service Tax Appellate Tribunal
Income Tax Appellate Tribunal
Railway Claims Tribunal
Appellate Tribunal for Electricity

Indian COurts & Tribunals

First Appeal posted this on 03.08.2007:

Click to go to the following websites
A) Supreme Court of India

B) High Courts:
Allahabad HC
Andhra Pradesh HC
Bombay HC
Calcutta HC
Delhi HC
Gauhati HC
Himachal Pradesh HC
J & K HC
Jharkhand HC
Karnataka HC
Kerala HC
Madras HC
Madhya Pradesh HC
Orissa HC
Patna HC
P & H HC
Rajastha HC
Uttranchal HC

Spurios Goods

Yedhulaprakash wrote on 10.08.2007:

I agree with what swetha says to some extent. As a matter of fact I had a personal experience. Recently, on coming to know that a proprietary concern in Nanjangud in Mysore district is manufacturing and selling spurious products affecting the business if one of my clients, who is dealing in an edible product under a registered trade mark, a complaint came to be lodged to the local DSP to take action against offender for falsification of trademarks. It was brought to the notice of the DSP the provisions of Section 115 of the Trade Marks Act, 1999, where under the DSP should obtain the opinion of the Trade Marks Registry about the falsification of trademarks before taking any action of seizure. However, the DSP though is fully empowered to do so, is not keen to register the complaint nor tried to get the mandatory opinion from the TM Registry. On the other hand he insisited for some court directions in this regard. It is really a shame that the police officers do not even bother about the statutory powers vested on them which results in perpetuating the crime.

Spurious Goods

Colshri on 09.08.2007:

Recently AAj Tak had nicely covered about the spurious medicines in the market based on which a no of raids were conducted and some famous duplicators were arrested. It is shocking to know that 33% medicines available in the market is spurious. The problem is not only in medicines but most of the day to day consumere items and food products being used by all of us and our famililes.The various laws to deal with this menace like Copyright, Trademark etc are most ineffective. Kindly suggest what action should be taken by the legal freternity in this regard.
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List of law journals

First Appeal provided the following list on 05.08.2007:

1. Supreme Court of India Caselaw:

2. Supreme Court of India Judgments:

3. Supreme Court Case Finder:

4. The Judgment Information System:

Judiciary and Delay

yehulaprakash wrote an article on 20.07.2007:

If a phenomenal increase in litigation is a sign of an extraordinary growth of awareness among the citizens about their rights, an unreasonable delay in the administration of justice will certainly be seen as constituting an unconscionable denial of justice. However, people often criticize the judiciary for the delay in disposing of the cases. I feel that the accusation is made without the knowledge of the problems faced by the institution. The imperative for clearing the burgeoning judicial backlog, and hence for more judges and Courts needs to be fully understood. It has to be seen that while there are more than 2 crore cases pending in courts all over India, on an average, State Governments were setting apart only 0.78 percent of their annual plan outlay for the judiciary. The demand made by the institution over a period of time to increase the number of courts and the judges strength has fallen in deaf ears of the execute. The Supreme Court of India had repeatedly expressed many times that an independent and efficient judicial system is one of the basic structures of our Constitution and that if sufficient number of judges are not appointed, justice would not be available to the people, thereby undermining the basic structure. It is to be seen that the root cause for delay in dispensation of justice in our country is poor judge-population ratio. There are just about 11 judges per million population in India comparing to 107 in U.S.A, 75 in Canada, 41 in Australia and 51 in the U.K. One has to consider the infrastructural facilities available to Indian Judiciary, compared to the countries aforesaid. Particularly the subordinate courts in India are running in a pathetic condition without any basic infrastructural facilities. One major factor is the delay in filling up of vacancies in many of these courts. I feel that without overhauling the problems on a war footing, the delay in disposing of the backlog of case is indispensable.

Securitisation Act

Shri T.L.Ram Mohan, Senior Advocate wrote an expert artice on Securitisation Act on 08.08.2007: Part II

The appointment of committees to suggest ways and means of bringing legislative and administrative changes has been a feature of democracies the world over. The appointment of a committee is useful to focus the attention on a particular subject and suggest remedies which can be placed before the legislative and executive bodies for implementation. Sometimes, appointment of a committee is a convenient mode of disposal of a burning issue by allowing the tempers to cool while the committee decides on the issues. The Narasimmam Committee and Tiwari Committee constituted by Government of India makes several recommendations. Flowing from its recommendations, the Recovery of Debts Due to Banks and Financial Institutions Act (DRT Act) was introduced in Parliament in 1993. The DRT Act laid down a scheme to enable financial institutions to recover the overdue advances by approaching the tribunals constituted under the Act instead of resorting to time consuming litigations in civil courts. It is very easy to say that the shackles of procedure should be loosened to enable financial institutions to recover their dues because the monies advanced by them are public funds. Unfortunately, banking practices are not as ideal as they ought to be. A constitution bench of Supreme Court of India in Central Bank of India Vs Ravindra, reported in JT 2001 (9) Sc 101 found that corrupt and unhealthy practices have crept into the banking services and there are many instances of obtaining signatures of the borrowers in blank papers and making entries on printed forms without notice to the borrowers. There are also instances of banks not giving credit where it is due and making claim where the same is not sustainable. On a review of the situation the Supreme Court of India while upholding the DRT Act laid down certain guidelines which are to be followed in the adjudication of claims by banks. The Supreme Court of India also laid down that the rate of interest should be according to the guidelines of the Reserve Bank of India and tempered by court taking into account the burden on the borrower. While the banks deal with the funds of the public and therefore entitled to some consideration, the borrowers who are also part of the public deserve equal consideration. The borrowers cannot except in rare cases, fund the business or industry based only on the advances from financial institutions. The borrowers contribute their own funds, the funds of the family members and friends. In many cases, though a bank may not be ruined, members of families are reduced to penury. While unshackling the procedural laws one should not lose sight of justice that is due to a borrower.

Securitisation Act

Shri T.L.Ram Mohan, Senior Advocate wrote on 06.08.2007: Part I
The Securatisation and Reconstruction of Financial Assets and Enforcement of Security Interests Act, 2002 (SARFAESI Act) is another attempt by the Parliament to arm the financial institutions with powers to recover the overdue advances and reduce the non performing assets (NPA). The object, no doubt, is laudable but whether the machinery is fair and effective is the moot point. The SARFAESI Act attempts to vest on the financial institutions the powers vested in a mortgagee under section 69 of the Transfer of Property Act, 1882. It will be useful to extract the provisions of section 69, "69. Power of sale when valid.- (1) A mortgagee, or any person acting on his behalf, shall, subject to the provisions of this section, have power to sell or concur in selling the mortgaged property, or any part thereof, in default of payment of the mortgage-money, without the intervention of the Court, in the following cases and in no others, namely:- (a) where the mortgage is an English mortgage, and neither the mortgagor nor the mortgagee is a Hindu, Muhammadan or Buddhist or a member of any other race, sect, tribe or class from time to time specified in this behalf by the State Government, in the Official Gazette; (b) where a power of sale without the intervention of the Court is expressly conferred on the mortgagee by the mortgage-deed and the mortgagee is the Government; (c) where a power of sale without the intervention of the Court is expressly conferred on the mortgagee by the mortgage-deed and the mortgaged property or any part thereof was, on the date of the execution of the mortgage-deed, situate within the towns of Calcutta, Madras, Bombay, or in any other town or area which the State Government may, by notification in the Official Gazette, specify in this behalf. (2) No such power shall be exercised unless and until-- (a) notice in writing requiring payment of the principal money has been served on the mortgagor, or on one of several mortgagors, and default has been made in payment of the principal money, or of part thereof, for three months after such service; or (b) some interest under the mortgage amounting at least to five hundred rupees is in arrear and unpaid for three months after becoming due. (3) When a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorize the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorized or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power. (4) The money which is received by the mortgagee, arising from the sale, after discharge of prior encumbrances, if any, to which the sale is not made subject, or after payment into Court under section 57 of a sum to meet any prior encumbrance, shall, in the absence of a contract to the contrary, be held by him in trust to be applied by him, first, in payment of all costs, charges and expenses properly incurred by him as incident to the sale or any attempted sale; and, secondly, in discharge of the mortgage-money and costs and other money, if any, due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorised to give receipts for proceeds of sale thereof. (5) Nothing in this section or in section 69A applies to powers conferred before the first day of July, 1882. "
Under the SARFAESI Act, financial institutions are vested with powers to not only sell the mortgaged property but also in appropriate cases take over management of the business of the mortgagor. The powers conferred are wide and appear to be without any prescription of limits for its exercise. Recovery of moneys due to the financial institutions has been the object of prior enactments also. As far as State Financial Corporations are concerned, the recovery of dues prescribed under the State Financial Corporation Act, 1951 has been successfully applied for over half a century. The same cannot be said about the legislation providing for the recovery of monies due to financial institutions which do not fall under the State Financial Corporation Act. The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is a major effort of the Parliament to provide a forum for quick recovery of overdue advances by financial institutions. The financial institutions and the business houses found the provisions to be adequate and useful but unfortunately the said act has not been helpful in the reduction of the non performing assets of financial institutions leading to the passing of the SARFAESI Act. It is necessary to understand and evaluate the provisions of the Debts Recovery Tribunals Act before we proceed to consider the provisions of SARFAESI Act.
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