Saturday, June 30, 2012

Sri Chandru vs K.Nagarajan on 12 March, 2012


















Madras High Court
Sri Chandru vs K.Nagarajan on 12 March, 2012
DATED : 12.03.2012
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mrs.JUSTICE S.VIMALA
A.S.NO.277 OF 2008
1.Sri Chandru
2.S.Chitra ... Appellants
Vs.
1.K.Nagarajan
2.N.Logammal
3.Jaysatya
4.N.Prabhu
5.The General Manager,
Canara Bank Main Branch
Salem-1. .... Respondents
Prayer: Appeal Suit filed under Section 96 of Civil Procedure Code against the judgment and decree dated 30.10.2007 made in O.S.No.37 of 2006 on the file of Additional District Court cum Fast Track Court No.I, Erode.
For Appellants : Mr.R.Veeramani
For Respondents : Mr.S.Lakshminarayanan
for
RR.1 to 4
(Legal Aid)
Mr.S.Pandurangan
for
Respondent No.5
J U D G M E N T
R.BANUMATHI,J.
Being aggrieved by the dismissal of their suit for partition O.S.No.37 of 2006, unsuccessful plaintiffs have preferred this appeal. For convenience, the parties are referred as per their array in the Original Suit.
2. The plaintiffs and defendants 3 and 4 are the sons and daughters of defendants 1 and 2. Defendants 1 and 2 have been doing textile business in the name and style of M/s.Sri Ashtalakshmi Tex at Door No.59, Pulikuthi main road, Gugai, Salem. Each of defendants 1 and 2 are the sole proprietors of the said proprietary concerns. Both defendants 1 and 2 have availed financial assistance for their business concerns for which defendants 1 and 2 have mortgaged their properties viz., suit item Nos. 2 to 7 in favour of 5th defendant Bank by creating an equitable mortgage in respect of the said properties. By virtue of creation of equitable mortgage by defendants 1 and 2, 5th defendant Bank is having secured interest in suit Item Nos.2 to 7 properties. The loan accounts of defendants 1 and 2 were not regular as per their repayment schedule stipulated in the loan and security documents. Amount of Rs.10,62,402.31 and Rs.12,87,875.75ps were stated to be due from the defendants 1 and 2. Since the defendants 1 and 2 have failed and neglected to repay the loan amount, 5th defendant Bank had sent demand notice to defendants 1 and 2 under Section 13(2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short, "SARFAESI Act"). The 5th defendant had also taken possession of the properties by exercising its power conferred under Section 13(4) of the Act.
3. At that stage, plaintiffs, who are the son and daughter of defendants 1 and 2, have filed the suit for partition. Case of plaintiffs is that the 1st defendant continued family business of his ancestors. The 2nd defendant mother hailed from a poor family and she has no means or money to purchase the suit items 2 to 6 out of her own money. Suit Item Nos.2 to 6 were purchased from out of the income earned in the family business and purchased in the name of defendants 1 and 2. Though the property had been purchased in the name of 2nd defendant, it had been intended to be purchased for the family and treated as joint family properties and the same had been enjoyed in common. Further case of plaintiffs is that they demanded for partition and separate possession of the suit properties in the year 1995 and several times subsequently and Defendants 1 and 2 were evading. The properties are joint family properties and each of the plaintiffs and defendants 1, 3 and 4 are entitled to 1/5th share each. Stating that defendants 1 and 2 have no right to deal with the shares of the plaintiffs or other members of the joint family, plaintiffs have filed the suit for partition to divide the suit properties into five equal shares and allot one such share to each of the plaintiffs.
4. In the trial Court, defendants 1 to 4 remained exparte. The 5th defendant Bank filed the written statement contending as follows:-
As per Section 34 of SARFAESI Act, Civil Court has no jurisdiction to entertain the suit. If at all the plaintiffs are aggrieved by the action taken by the 5th defendant Bank under Section 13 of SARFAESI Act, the plaintiffs have to prefer an appeal before Debts Recovery Tribunal as contemplated under Section 17 of the Act, where the appeal shall be entertained only after payment of necessary court fees. Only in order to circumvent the statutory provisions, the defendants 1 and 2 have set up the plaintiffs to file the suit before the Civil Court, which is not having the jurisdiction to entertain and try the suit. The Bank further averred that the suit properties items 2 to 7 are self acquired properties of defendants 1 and 2 and that they are absolute owners of the properties and they are having all rights of alienation in respect of the properties. The plaintiffs have good locus standi to question the legality of the mortgage created by defendants 1 and 2 and the equitable mortgage is a valid one. The sole intention of the plaintiffs is to defeat the lawful claim of the 5th defendant.
5. On the above pleadings, in the trial Court, four issues were framed. On behalf of the plaintiffs, the 1st plaintiff was examined as P.W.1 and Exs.A.1 to A.6 were were marked. Onbehalf of the Defendant Bank, the official of Bank was examined as D.W.1 and Exs.B.1 to B.4 were marked.
6. On the question of jurisdiction (Issue No.1), the trial Court held that the suit properties are situated in Attayampatti village; the plaintiffs have not challenged any of the measures taken under Section 13 of the SARFAESI Act and that there is no bar for entertaining the suit. On other issues, the trial Court held that the plaintiffs have not produced any documents to prove their case that the suit properties are the ancestral properties. Referring to Exs.A.1 to A.6 sale deeds, trial Court further held that the suit properties are self acquired properties of defendants 1 and 2. Pointing out that the loan was borrowed by the defendants 1 and 2 for their textile business, the trial Court held that the mortgage is binding upon the plaintiffs and only to avoid paying mortgage debt, the plaintiffs have filed the suit for partition. On those findings, the trial Court dismissed the suit for partition.
7. Being aggrieved by the dismissal of the suit, plaintiffs have preferred this appeal. Learned counsel for appellants/plaintiffs contended that the appellants cannot be deprived of their legitimate share in item No.1 and other properties. It was further submitted that jurisdiction of Debt Recovery Tribunal is restricted only to any of the measures taken under Section 13 of SARFAESI Act and the Debt Recovery Tribunal cannot go into the question of Plaintiffs' shares. It was further submitted that the litigants/ plaintiffs are having genuine grievance of civil nature and have a right to institute the Civil Suit. In so far as the claim of share it was submitted that the 2nd defendant had no independent source of income and therefore all the items of suit properties are to be construed as the joint family properties and defendants 1 and 2 have no right to deal with the shares of the plaintiffs or other members of the family.
8. Defendants 1 to 4 have not entered appearance. On behalf of defendants 1 to 4, we have heard Mr.S.Lakshminarayanan, who was appointed as counsel through Legal Aid. We have heard Mr.S.Pandurangan, learned counsel appearing for the 5th defendant Bank.
9. The learned counsel for 5th defendant Bank has submitted that the suit is a collusive suit between the plaintiffs and defendants 1 to 4. In view of the specific bar under Section 34 of SARFAESI Act and Section 18 of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (in short, RDDB Act ), Civil Suit is not maintainable. It was submitted that Section 13(2) notice was issued and possession was also taken and thereafter it was found that the secured property is an agricultural land and therefore the measures taken under Section 13 of SARFAESI Act was withdrawn and 5th defendant Bank had filed its claim before Debt Recovery Tribunal, Madurai in O.A.No.117 of 2008 for recovery of the amount.
10. We have carefully gone through the plaint pleadings, materials on record, impugned judgment and the rival contentions. The following points arise for determination in this appeal:
1. In view of bar under Section 34 of SARFAESI Act, whether the Civil Suit is barred?
2. Whether the suit property is proved to be joint family property and whether the plaintiffs are entitled to the decree for partition in respect of their shares?
3. To what relief, the parties are entitled to?
11. Point No.1:- Demand notices (dated 3.9.2004) Exs.B.3 and B.4 were sent by the 5th defendant Bank under Section 13(2) of the SARFAESI Act to defendants 1 and 2. The 5th defendant had also taken possession of items 2 to 7 properties by virtue of power conferred under Section 13(4) of the Act. After the Bank had taken measures under Section 13 of SARFAESI Act, the plaintiffs filed the suit for partition. In the trial Court, the 5th defendant Bank raised objection that in view of the express bar under Section 34 of the SARFAESI Act, Civil Court has no jurisdiction. The trial Court did not elaborately go into the question regarding maintainability of the suit. In its cryptic findings, the trial Court held that the suit is maintainable on two grounds; (i) suit properties are situated in Erode; (ii) the 2nd plaintiff, defendants 1, 2 and 4 are residing in Erode; and (iii) the plaintiffs are not parties in the SARFAESI proceedings then pending before Debt Recovery Tribunal.
12. Placing reliance upon decisions in (i) INDUSTRIAL INVESTMENT BANK OF INDIA LIMITED VS. MARSHAL'S POWER & TELECOM (I) LTD. AND ANOTHER ((2007) 1 SCC 106); (ii) V.THULASI VS. INDIAN OVERSEAS BANK (2011 (3) CTC 801), in which one of us (R.Banumathi,J.) was a member; and (iii) PUNJAB NATIONAL BANK VS,. J.SAMSATH BEEVI AND 3 OTHERS, (2010(3) CTC 310), learned counsel for 5th defendant Bank would submit that in view of the specific bar under Section 34 of SARFAESI Act and Section 18 of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (in short, RDDB Act ), Civil Suit is not maintainable.
13. In terms of Section 34 of SARFAESI Act, jurisdiction of the Civil Court is barred. Section 34 of the SARFAESI Act reads as under:
34. Civil Court not to have jurisdiction - No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).
14. As per Section 34, the bar of jurisdiction is two fold:
"(i) no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a DRT or the Appellate Tribunal is empowered by or under the Act; (ii) No injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any order conferred under the Act or under the RDDB Act."
15. Under Section 17 of the SARFAESI Act, right of appeal is provided to any person including a borrower. Under the SARFAESI Act, only one appeal has been provided i.e., against measures taken under Section 13(4). A careful reading of Section 13(4) shows that Section 13(4) embodies various modes of recovery of the secured debts of the secured creditor. If any one including the borrower feels aggrieved by the mode of recovery, which a secured creditor may adopt, he has a right to prefer an appeal in terms of Section 13.
16. Placing reliance upon a judgment of single judge of this Court in the case of ARASA KUMAR AND ANOTHER VS. NALLAMMAL AND OTHERS, (2004(4) CTC 261), learned counsel for appellants/plaintiffs contended that bar created under Section 34 is not absolute and is subject to restrictions. It was submitted that parties, who claim the property, which is subject matter of mortgage in favour of Bank, can approach the Civil Court, if their grievance claiming share cannot be redressed by the Tribunal. The learned counsel would further submit that the plaintiffs' claim for partition of joint family property would not fall within the meaning of any of the measures taken under Section 13(4) and therefore the suit is well maintainable.
17. In NAHAR INDUSTRIAL ENTERPRISES LTD. VS. HONG KONG AND SHANGHAI BANKING CORPORATION, 2009 (4) CTC 74 = (2009) 8 SCC 646, the Honourable Supreme Court considered the question of exclusion of jurisdiction and matters pertaining to DRT and the scope of Sections 17 and 18 of RDDB Act. Referring to DHULABHAI VS. STATE OF MADHYA PRADESH, (AIR 1969 SC 78), and other cases, the Supreme Court in the above said judgment held as under: "105. The Civil Court indisputably has the jurisdiction to try a suit. If the suit is vexatious or otherwise not maintainable action can be taken in respect thereof in terms of the Code. But if all suits filed in the Civil Courts, whether inextricably connected with the application filed before the DRT by the banks and financial institutions are transferred, the same would amount to ousting the jurisdiction of the Civil Courts indirectly. Suits filed by the debtor may or may not be counter claims to the claims filed by banks or financial institutions but for that purpose consent of the Plaintiff is necessary.
106. It is furthermore difficult to accept the contentions of the Respondents that the statutory provisions contained in Section 17 and 18 of the DRT Act have ousted the jurisdiction of the civil court as the said provisions clearly state that the jurisdiction of the civil court is barred in relation only to applications from banks and financial institutions for recovery of debts due to such banks and financial institutions. ....
108. Although some arguments have been advanced before us whether having regard to the provisions of Sections 17 and 18 of the Act the civil court jurisdiction is completely ousted, we are of the view that the jurisdiction of the civil court would be ousted only in respect of the matters contained in Section 18 which has a direct co-relation with Section 17 thereof, that is to say that the matter must relate to a debt payable to a bank or a financial institution. The application before the Tribunal would lie only at the instance of the bank or the financial institution for the recovery of its debt. It must further be noted in this respect that had the jurisdiction of the civil courts been barred in respect of counterclaim also, the statute would have said so and Sections 17 and 18 would have been amended to introduce the provision of counterclaim. ....
117. 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....
118. 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. There is a possibility that the debtor may file preemptive suits and obtain orders of injunction, but the same alone, in our opinion, by itself cannot be held to be a ground to completely oust the jurisdiction of the civil court in the teeth of Section 9 of the Code. Recourse to the other provisions of the Code will have to be resorted to for redressal of his individual grievances.
18. The question of maintainability of civil suit for partition is to be considered in the light of the above decision of the Supreme Court. The suit properties were mortgaged in favour of the Bank. On 3.9.2004, Exs.B.3 and B.4 - Section 13 (2) notices were issued to defendants 1 and 2. The 5th defendant Bank had taken possession of item Nos.2 to 7 exercising its power under Section 13(4) of the Act.
19. As per Section 31, the provisions of SARFAESI Act are not to apply in certain cases. As per Section 31(i), provisions of the Act shall not apply to security interest created in agricultural land. On coming to know that the security interest has been created in agricultural land, the 5th defendant Bank had withdrawn the measures taken under Section 13 of the Act and proceeded to file its claim in O.A.No.117 of 2008 before Debt Recovery Tribunal, Madurai. Section 18 of RDDB Act also contains express bar of ouster of jurisdiction of the Civil Court. It is for enforcement of its secured interest the Bank had taken steps and that right remains in tact even in a suit for partition.
20. Power under Section 34 of SARFAESI Act is not absolute and is subject to restrictions. They are:- (1) that parties who filed suit must be party to liabilities created in favour of secured creditors, (2) disputes between parties could be resolved under provisions of Act itself; (3) if claim made by parties is outside jurisdiction of Debt Recovery Tribunal or Appellate tribunal thereto or any action taken or to be taken under the Act and also under Recovery of Debt due to Banks and Financial Institutions Act, 1993 and disputes raised by parties cannot be adjudicated by Tribunal or Authority created under Act.
21. As per the ratio laid down by the Supreme Court in NAHAR INDUSTRIAL ENTERPRISES LTD. VS. HONG KONG AND SHANGHAI BANKING CORPORATION, 2009 (4) CTC 74 = (2009) 8 SCC 646, recourse to other provisions of the Code will have to be made for redressal of individual grievance. For redressal of individual grievances, they have to approach only Civil Courts. When such Civil suits are filed, Courts are to be cautious about astute drafting of plaint. Courts have a duty to see that whether the plaint allegations are made by trying to bring Civil Suit within the parameters laid down by the Supreme Court in Mardia Chemicals Ltd. vs. Union of India, case (2004(2) CTC 759 (SC) and under the pretext of seeking redressal of individual grievance.
22. Observing that Courts have a greater duty to see that the allegations of fraud are made just for the purpose of maintaining a Civil Suit and categorising such civil suits filed challenging SARFAESI Act in 3 or 4 categories, in Punjab National Bank vs. J.Samsath Beevi, (2010(3) CTC 310)), V.Ramasubramanian,J., held as under:
8. But at the same time, the Court has a duty to see, if such allegations of fraud are thrown, just for the purpose of maintaining a suit and ousting the jurisdiction of the Tribunal and to keep the Banks and Financial Institutions at bay. If by clever drafting, the plaintiff creates an illusion of a cause of action, the Court is duty bound to nip it in the bud. To find out if it is just a case of clever drafting, the Court has to read the plaint, not formally, but in a meaningful manner. So is the dictum of the Apex Court in T.Arivandandam vs. T.V.Satyapal {1977 (4) SCC 467}. It was again reiterated by the Court in I.T.C. Ltd vs. Debts Recovery Appellate Tribunal {1998 (2) SCC 70}, by holding that clever drafting, creating illusions of cause of action are not permitted in law. The ritual of repeating a word or creation of an illusion in the plaint can certainly be unravelled and exposed by the Court while dealing with an application under Order VII, Rule 11(a).
9. A Court is obliged to see if the allegations of fraud and collusion made in the plaint, are themselves a product of "fraud and collusion" between the family members of the borrowers, so as to escape liability and save the secured assets, somehow or the other. In the recent past, there is a sudden spurt in the number of civil cases filed against the actions initiated by Banks and Financial Institutions, either under the 1993 Act or under the SARFAESI Act, 2002. All these cases fall under 3 or 4 categories viz., (i) cases filed by strangers claiming that their properties are brought to sale on the basis of forged documents or certified copies of documents submitted by borrowers to banks (ii) cases filed by guarantors claiming that they never signed letters of guarantee or offered their properties as securities
(iii) cases filed by close relatives of borrowers such as spouses, children, brothers and sisters, claiming that they have a share in the properties mortgaged by the borrowers and that they were never aware of and they never gave consent to the properties being offered as securities and (iv) cases filed by third parties claiming that the properties were sold to them by the borrowers or guarantors by suppressing the creation of the mortgage and that they are bona fide purchasers for value without notice of the encumbrances.
10. It is not very difficult for a seasoned litigant or an intelligent lawyer to draft the plaint in such a manner as to make a secured asset, come within anyone of the above 4 categories, by a clever drafting of the plaint, thereby creating an illusion of fraud, collusion, misrepresentation and the like. Today, with the advancement of technology, the creation of an illusion and the creation of a virtual world are both possible. The moment the civil suit is taken on file, the proceedings before the Debts Recovery Tribunal or under the SARFAESI Act, 2002, gets slowed down. This results in two consequences viz., (i) out of frustration, the banks agree for one time settlements or (ii) third party rights get created by taking advantage of the situation. Therefore, the Courts have a greater responsibility to scan the pleadings and see if the allegations of fraud and collusion made in the plaint are actually a product of fraud and collusion between the borrowers and those making such claims.
23. Courts have a duty to see whether genuine grounds have been made out to attract the jurisdiction of the Civil Court. No generalisation could be made as to when a Civil Suit is maintainable or when the jurisdiction of the Civil Court is ousted. In the facts and circumstances of each case, it is to be examined whether there is genuine grievance to be redressed in the Civil Court. In V.THULASI VS. INDIAN OVERSEAS BANK, (2011(3) CTC 801), this Court held that the suit is specifically barred under Section 34 of the Act and the plaint is liable to be rejected.
24. In the case on hand, the plaintiffs are son and daughter of the borrowers. Case of plaintiffs is that without their knowledge, the properties were mortgaged. Admittedly, defendants 1 and 2 are carrying on textile business and they have availed financial assistance from the bank only for their textile business. The properties, being the self-acquired properties of the 2nd defendant, were offered as security for availing financial assistance. At the time of taking loan, the plaintiffs, being young age, there would have been no occasion to take their consent for offering the property as securities. It is in this context the Court has to analyse the plaint averments.
25. As pointed out earlier, in the present case, the trial Court did not elaborately go into the question of jurisdiction, but proceeded with the matter on the footing held that the suit is maintainable. Therefore, without elaborating any further, we need to consider the appeal on the footing that the Civil Suit is maintainable.
26. Point No.2:- As pointed out earlier, in 1998, the parents of the plaintiff borrowed the amount from 5th defendant Bank for their textile business and with an intention to create security by way of equitable mortgage,they have deposited the title deeds of the suit properties 2 to 7. Case of plaintiffs is that the suit properties are joint family properties and that their mother - 2nd defendant did not have any independent source of income and that the suit properties Items 2 to 7 were purchased only from out of the income of the joint family.
27. The plaintiffs have not produced any documents to show that the suit properties are their joint family properties. By perusal of the evidence and materials on record, the details of the properties purchased are as under:- Sale Deed/ Settlement deed
Extent and S.No.
Suit Property Item Number
Ex.A.1 dated 28.4.1986 in favour of 2nd Defendant
1400 Sq.ft. (plot No.17) in S.No.22/8
3
Ex.A.2 dated 9.12.1991 in favour of Nityanandam
1400 Sq.ft. in
S.No.39/2C4
5
Ex.A.3 dated 14.9.1992 in favour of 2nd Defendant
1890 Sq.ft in S.No.39/2C4
4
Ex.A.4 dated 12.3.1993 in favour of 2nd defendant
747 = sq.ft. in S.No.25/4
2
Ex.A.5 dated 17.11.1995 in favour of 2nd defendant
2100 Sq.ft. in
S.No.39/2C4
6
Ex.A.6 settlement deed in favour of 1st defendant
4235 sq.ft. in S.Nos.22/2, 22/4 and 22/5 (Plot Nos.10, 11and 12)
7
Exs.A.1 and A.3 to A.5 would clearly show that the properties were purchased by the 2nd defendant. Under Ex.A.6- settlement deed, dated 2.6.1998, the 2nd defendant had settled the property of 4235 sq.ft. in Survey Nos.22/2, 22/4 and 22/5 (Plot Nos.10,11 and 12), which is item No.7 in suit property, in favour of her husband by settlement deed.
28. Case of plaintiffs is that the acquisitions were made from out of the income from ancestral property/joint family property. To prove that the suit properties are joint family properties, the plaintiffs are to adduce evidence as to existence of nucleus. The mere existence of nucleus alone is not enough to hold that the acquisitions were made utilising the income from nucleus. Absolutely, there is no evidence as to the existence of nucleus and what was the income derived from such nucleus. Onbehalf of the plaintiffs, it was submitted that the plaintiffs cannot be deprived of their share in item No.1. By perusal of the description of the suit properties, it is seen that item No.1 is only the house site and house thereon. In the absence of any proof regarding nucleus or the income of the joint family and in the absence of any evidence, the contention of the plaintiffs that the suit properties are the joint acquisitions does not merit acceptance.
29. As discussed earlier, suit properties Item Nos. 2 to 6 are purchased in the name of family member - 2nd defendant. When the properties are purchased in the name of family member of a Hindu family, there is no presumption that those properties are purchased from out of the joint family income. This is all the more so, when no evidence was adduced as to the existence of joint family property and the income derived therefrom. When the properties acquired by the 2nd defendant are the self acquisitions of defendants 1 and 2, the 2nd defendant has also independent power of mortgage, sale or other alienations.
30. Case of plaintiffs is that they demanded partition and separate possession from the year 1995. At the time of filing suit in 2008, the plaintiffs are aged 27 and 32 years respectively i.e., the plaintiffs were born in 1981 and 1975 respectively. While so, it is quite unbelievable that the 1st plaintiff even at the age of 14 and second plaintiff - daughter at the age of 20 would have demanded partition from their parents. There is also no evidence to show under what circumstances the plaintiffs were so compelled to demand for partition at such an young age.
31. Let us assume that the suit properties are the joint family properties. The loan was borrowed by defendants 1 and 2 for their textile business. The 1st defendant, being the father, has power to deal with the properties by creating security by way of equitable mortgage for business/family necessity. The 1st defendant, being the Manager/kartha of the family, represents all the family members in all transactions. When the Bank loan was obtained for the benefit of the family/business purposes, the security created is binding on the plaintiffs and defendants 3 and 4.
32. As held by the trial Court, the suit appears to have been filed only to delay/evade the repayment of the loan amount to the 5th defendant Bank. Upon appreciation of oral and documentary evidence,the trial Court rightly held that the plaintiffs are not entitled to the relief of partition. We do not find any reason warranting interference with the findings of the trial Court.
33. In the result, the appeal is dismissed. However, there is no order as to costs.
(R.B.I., J.) (S.V., J.)
Index: Yes 12.03.2012
Internet: Yes
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To
The Addl. District and Sessions Judge,
-cum- Fast Track Court No.I, Erode.
R.BANUMATHI, J.
and
S.VIMALA,J.
usk
Pre-Delivery
Judgment in
A.S.No.277 of 2008
12.03.2012

Judging a genius - Nani Palkivala




Frontline
Volume 29 - Issue 13 :: Jun. 30-Jul. 13, 2012INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU

V.VENKATESAN

Two legal luminaries try to present Nani Palkhivala’s illustrious legal career in the form of a book.

Nani Ardeshir Palkhivala, who passed away in 2002, was an outstanding lawyer, an expert on taxation, and a diplomat. Not much is known, however, about his humble origins, perseverance against all odds in the early days of his profession, and contribution to the development of law and society. The book under review, authored by two of his eminent admirers, is, no doubt, a hagiography. But that is not a reason for a critical reader not to try to benefit from the book and also ask questions that the authors seem to have missed.

The book, intended to trace his legal journey, is a substantial contribution to the understanding of Palkhivala even though the authors, because of their awe and reverence for their subject, did not seek a balanced assessment of his world view.

Soli J. Sorabjee, former Attorney General of India, was at one time a junior to Palkhivala and assisted him in a number of cases, including the historic Kesavananda Bharati case. Arvind P. Datar, a Senior Advocate of the Madras High Court, is a trustee of the Palkhivala Foundation, Chennai, and a director of the Nani Palkhivala Arbitration Centre, Chennai.

Right at the outset, the authors identify the many paradoxes that dotted Palkhivala’s life: his meteoric rise as an advocate, lack of a privileged family background, absence of a godfather in the legal profession, lack of a degree from Oxford or Cambridge or any foreign university, not being a barrister (as was fashionable at that time), and handicap of a severe stammer in his childhood. How he overcame each of these obstacles must be lessons in self-improvement to any aspiring individual in any walk of life.

The authors set out to explain how Palkhivala reached the pinnacle of success in the legal profession in less than 20 years and sum it up in one word: practice. He worked harder and with greater speed than most of his contemporaries. His talent led him to believe, correctly, that the Income Tax Act lacked good books, and he had the competence, interest and energy to fill the void. What followed was a daily output of writing for four hours, early in his career, ably assisted by his brother, Behram, in the night, irrespective of his busy schedule as a lawyer during the day and the evening. The result, in the form of a book that ran into several editions in subsequent years, propelled him to the front ranks of his profession.

Young Palkhivala joined the chambers of Sir Jamshedji Kanga, like most other successful lawyers of his time (H.M. Seervai and Fali S. Nariman were others). Kanga had been the Advocate-General of the State of Bombay and had returned to private practice, appearing for income tax assessees. Palkhivala’s accounting knowledge and mastery of the income tax laws placed him in good stead in assisting Kanga. Considering that a good senior can make all the difference to the career of a young lawyer, a reader may be left to wonder why the authors do not think Kanga was Palkhivala’s godfather in the profession. Kanga had substantially reduced his practice, because of his age, by the time Palkhivala entered the profession.

Among his lawyering traits which inspired several lawyers, the book mentions two: giving examples in the course of submissions before the court as to what would happen if his point of view was not accepted by the court and showing that the stand taken by the opposing counsel would lead to unintended or absurd consequences. His style was persuasive and he almost never raised his voice or interrupted the other side. His felicity of expression made dry legal arguments very interesting and often left judges spellbound. To these, the authors add two personal qualities which made him different from others: he never indulged in gossip and never criticised people behind their backs.

Palkhivala was born on January 6, 1920. His surname, like many Parsi surnames, was based on the business carried on by his ancestors, who manufactured palkhis, or palanquins. Horse-driven carriages made palkhis redundant, but the family surname survived. Palkhivala’s father ran two laundries, which were renowned for superb quality and customer service. The family was not affluent, and the kind of background associated with easy professional success was missing at home.

Yet, Palkhivala and his two brothers gained by parental affection and interest, which made them claim later in their lives that they studied in school but were educated at home. Palkhivala was determined to get over his childhood stammer. His father made him run on the beach with an almond under his tongue. The authors guess that he, perhaps, took a cue from Demosthenes, who placed pebbles in his mouth and practised shouting at the waves to clear his stammer. They speculate that he may not have been such a great speaker if he had not had the stammer. Great achievements, they say, have often come from men and women who were driven to overcome insurmountable odds.

Palkhivala joined Kanga’s chambers in 1944. Within three years at the Bar, he had an annual income of Rs.60,000, the equivalent of more than Rs.50 lakh today, according to the authors. Within seven years of joining the Bar, he purchased a large flat of about 5,000 square feet at Commonwealth Building on Marine Drive, Bombay (now Mumbai). He lived there until the end of his life. With his increasing involvement with the Tata group of companies, his court appearances became less frequent after the 1970s, but he continued to appear in landmark cases. In his later years, he remarked that he was more interested in causes than in cases.

Considering that Palkhivala’s meteoric rise in the profession coincided with the final phase of the freedom struggle, which culminated in India gaining independence in 1947 and was followed by nation-building, what impact did it have on Palkhivala’s career graph? The authors may say that the book is not concerned with the issue at all as the focus is here on the cases that he fought in the courts. While such a claim would be perfectly justified, readers may still wonder whether the ambitious Palkhivala, who exploited every opportunity that unfolded to achieve faster professional growth than others, remained insulated from the historical and political events of the day. The inauguration of the new Constitution in 1950 did have an impact, with a sharp rise in the writ petitions before the High Courts and the Supreme Court testing the legal skills of lawyers like Palkhivala.

But the Palkhivala of the 1950s and the 1960s was a much changed man. He had views on almost every issue. On the subject of the Income Tax Act (ITA), Palkhivala, as the book shows, repeatedly protested against the chronic tinkering with the Act and lamented that it had been twisted completely out of shape. The avalanche of amendments only resulted in more litigation, which, according to Palkhivala, reflected tremendous public dissatisfaction with the quality of the law and of fiscal administration.

Relying on Palkhivala’s comments against frequent amendments of the ITA, the authors caution against the proposed Direct Taxes Code, which is likely to replace the ITA, 1961: “The new legislation is only going to make the law more complex, leaving the assessee confused and confounded.”

This is not surprising as one of the authors, Arvind P. Datar, has recently written opinion pieces in the media hailing the Supreme Court’s January 20 judgment quashing the Income Tax Department’s notice demanding tax on capital gains from Vodafone following its acquisition of 67 per cent controlling interest in Hutchison Essar Limited through an overseas transaction involving holding companies. Datar has also been very critical of the government’s move to retrospectively amend the ITA to remove the ambiguity that led to the Supreme Court’s judgment so that a fresh tax demand notice can be issued to Vodafone. The book reveals that Datar owes his intellectual debt to Palkhivala, and had Palkhivala been alive today, both Datar and he would have been on the same page on the Vodafone controversy.

But my interest in Palkhivala’s views on the issue goes beyond the Vodafone matter. I wanted to know how he might have interpreted the Supreme Court’s five-judge judgment in the McDowell case (1985), which critics said favoured the Income Tax Department’s efforts to nail ingenious tax avoidance mechanisms. However, the book disappoints, with even the Table of Cases making no mention of the McDowell case.

The book says that Palkhivala’s involvement in tax cases spanned five decades from 1945 to 1995. He gave his first annual post-Budget public speech in 1957, and continued to be a bitter critic of the avalanche of amendments and chronic tinkering with tax laws. The book has chapters titled “Income Tax Matters” and “Indirect Taxes”. With a little more research, the authors could include Palkhivala’s views on the McDowell case, if at all he had made his views public, in the book’s next edition. Or, perhaps, one could find some discussion of this case in the forthcoming 10th edition of Kanga and Palkhivala’s Law and Practice of Income Tax, being edited by Datar.
AP

Nani Palkhivala. He could make dry legal arguments very interesting and often left judges spellbound. A 1978 photograph.

The book’s merit lies in bringing out many hitherto unknown snippets of information from the legal career of Palkhivala. Some of these will be of considerable interest to any reader.

The Kesavananda Bharati case of 1973 is credited with the Supreme Court’s laying down the principle that Parliament cannot amend the basic structure of the Constitution. The credit, in fact, is due to Palkhivala for ably articulating this view before the first 13-judge Bench. Again, when another Bench, headed by Chief Justice A.N. Ray, began to review the Kesavananda Bharati judgment, it was Palkhivala who made Justice Ray understand the futility of his exercise and dissolve the Bench within three days of its constitution.

Missed opportunity

The book shows that Palkhivala missed a rare opportunity to articulate the basic structure doctrine before the Supreme Court in 1965 in the Sajjan Singh case when two of the five judges of the Constitution Bench – Justices M. Hidayatullah and J.R. Mudholkar – came close to laying down the basic structure doctrine by holding that Parliament could not amend the fundamental rights.

Palkhivala missed his opportunity to argue before the Bench and tilt the balance in favour of the basic structure doctrine because he hated to wait for his turn. When he decided to come to New Delhi to argue the matter, the hearing was over. The result was that the country had to wait for eight more years to get the basic structure doctrine. The authors’ belief that Palkhivala had the ability to tilt by his arguments the balance of the Constitution Bench in 1965 may indeed be correct. Their reverence for Palkhivala stops them from suggesting that his impatience with the court’s norms and procedure could have been a negative trait in itself during the early part of his career.

When the Golak Nath case was heard by the Supreme Court’s 11-judge Bench in 1967, Palkhivala was held up in Geneva where he was arguing for the Union of India in an international dispute. The Golak Nath case was a precursor to the Kesavananda Bharati case insofar as the court laid down that Parliament could not amend the fundamental rights. Because of his prior engagement in Geneva, Palkhivala got only half a day to argue before the Golak Nath Bench, although the case was heard for several days. As a result, although Palkhivala explained the implied limitations on the amending power of Parliament, none of the judges of the Golak Nath Bench took note of his arguments in their judgments.

In the Kesavananda case, the Supreme Court, by a narrow majority of 7:6, held that the power of Parliament was not unlimited and that the amending power could not be used to alter the basic structure or the essential features of the Constitution. The role of Justice H.R. Khanna, who appears to have tilted the scales in favour of the majority in this case, has been the subject of interpretation by scholars. Some scholars hold the view that Justice Khanna did not support the purported majority view in this case.

The authors of the book mention that the majority in this case was not really 7:6. If Justice Khanna’s decision is vivisected carefully, one would find that the verdict is really 6.6:6.4! As the majority had by and large accepted Palkhivala’s arguments in this case, the authors could well have discussed in detail how Palkhivala interpreted the ratio of this judgment.

The book regrets Palkhivala’s critical failure to argue in the Habeas Corpus case during the Emergency. In this case, the Supreme Court, by a majority verdict of 4:1, held that no person who had been arrested and detained had the right to move a writ of habeas corpus before a High Court during the Emergency. Palkhivala was overconfident that the Supreme Court would not overrule seven High Courts which had delivered well-reasoned judgments in favour of the citizen’s rights during the Emergency. To him, it was an open-and-shut case, and nothing would be gained by his appearing before the Supreme Court. The result, however, stunned him. The authors believe that he ought to have appeared in the case, given that several persons had been detained without trial. The authors add, though, that it would be presumptuous to imagine that his presence would have made a decisive difference to the case as the judgment was clearly influenced by much that happened outside the courtroom.

One does not find a critical discussion in the book of Palkhivala’s views on the Supreme Court’s judgments in the Mandal case and the Election Commission’s case. In the Mandal case, he argued against reservation on the basis of caste. In the Election Commission case, he contended against the government’s proposal to make it a multi-member commission. History vindicates the Supreme Court’s rulings in both the cases, and it is clear that Palkhivala’s apprehensions were without basis.

The book includes in its appendices Palkhivala’s affidavit in the U.S. District Court, Southern District of New York, in the Bhopal gas tragedy case. In this affidavit, Palkhivala defended Union Carbide Corporation’s motion for dismissal on forum non conveniens grounds and opposed the activists’ plea that the Indian legal system was deficient and inadequate. The U.S. District Court accepted Palkhivala’s affidavit and deprived the survivors of the disaster an opportunity to litigate the case in the U.S. court to claim better compensation than what they could achieve from the Indian Supreme Court. The authors seem to have added this affidavit in the appendices as an afterthought as they did not consider it important enough to be discussed in the book. But it speaks for itself, and readers may well judge for themselves whether Palkhivala had sufficient understanding of tort law.

Look at banking as a chance to help people’ says CIBIL Chairman

Mr M.V. Nair
BL Kochi :June 28,2012



Mr M.V. Nair, chairman, CIBIL, and former CMD, Union Bank of India, has called upon bankers to look at banking as an opportunity to help people.

He said that bankers are people who got an opportunity to make a difference in the lives of several sections like farmers and entrepreneurs, who approach them for various needs. Mr Nair advised the bankers to use the opportunity before them properly.

Mr Nair was speaking at function organised here by the State Forum of Bankers’ Clubs – Kerala to honour him with the Lifetime Achievement Award.

He pointed out that wage negotiations were testing times and he was guided by the perception that payment should be good to attract best talents.

Referring to the global economic slowdown, he said that situation has changed across the world. Banks are over-leveraged; economies are over-leveraged. Leadership may not be confined to national or State level. True leadership at every level of society contributes to the success of the country as a whole, he added.

Mr Shyam Srinivasan, managing director, Federal Bank, and Dr V.A. Joseph, managing director, South Indian Bank, jointly presented the award to Mr Nair.

Mr Mayank Mehta, deputy general manager, Union Bank of India; Mr Abraham Thariyan, executive director, South Indian Bank; Mr L.R.R. Warrier, president, State Forum of Bankers’ Clubs; Mr K.U.Balakrishnan, general secretary, and Mr Peter Sebastian, president, Greater Kochi Bankers’ Club, also spoke.




External debt rose by $39.9 billion in 2011-12


BL:June 30,2012





India’s external debt increased by $39.9 billion to $345.8 billion in 2011-12, according to the Reserve Bank of India.
The increase in debt is due to the considerable increase in commercial borrowings, short-term trade credits and rupee denominated non-resident Indian (NRI) deposits.
Large recourse to borrowings, particularly short-term borrowings, reflect widening financing needs and growing uncertainty in global financial markets as the situation in the Euro Zone continued to be fragile, said the RBI.
In 2010-11, the external debt had increased by $44.9 billion to $305.9 billion as at March-end 2011.
As at March-end 2012, the external debt-GDP ratio increased to 20 per cent, against 17.3 per cent as at March-end 2011. This ratio indicates the country's ability to pay back its debt.
India’s debt service ratio increased to 5.6 per cent in 2011-12 compared with 4.2 per cent in 2010-11. Debt service ratio is the ratio of debt service payments of a country to its export earnings.
In the external debt, the share of commercial borrowings stood at 30.2 per cent as at end-March 2012 followed by short-term debt (22.6 per cent), NRI deposits (16.9 per cent) and multilateral debt (14.6 per cent).
The ratio of short-term debt (residual maturity) to foreign exchange reserves at 50.1 per cent as at end- March 2012 was higher compared to 42.3 per cent as at end-March 2011.
India’s foreign exchange reserves provided a cover of 85.1 per cent to the external debt stock at the end of March 2012 as compared with 99.6 per cent as at end-March 2011. Commercial borrowings increased by $15.8 billion as at end-March 2012 as compared to an increase of $17.8 billion as at end-March 2011. Trade credits (both long-term and short-term) increased by $8 billion as at end-March 2012 as compared to $12.8 billion over the level at end-March 2011.
NRI deposits increased by $6.9 billion to $58.6 billion as at end-March 2012 over the level as at end-March 2011 primarily on account of increase in rupee denominated NRI deposits. This reflects the impact of deregulation of interest rates on these deposits in December 2011.


Poor loan quality, a major worry for public sector banks



BL :Biswa swarup Misra:30 june 2012



Banking busines in 2011-12 compared with 18.3 per cent in 2010-11 as the real GDP growth decelerated from 8.5 per cent to 6.5 per cent.

The growth deceleration, coupled with migration to system driven recognition of non-performing assets (NPAs), has led to the steep rise in bad loans.

The mainstream banking system consists of different categories of banks such as State Bank of India (SBI) and its subsidiaries, nationalised banks(NBs), new private sector banks (NPBs), old private sector banks(OPBs). 

The various categories of banks differ in their ownership structure, business philosophy, geographical presence, customer base, technology adoption, manpower profile and governance practices.

 How far these differences have influenced the performance of different categories of banks? We consider all the banks in each category except only 8 out of 14 old private banks and examine their performance across five dimensions — business growth, interest margin (NIM), asset quality (GNPA), operating efficiency (Cost to Income ratio) and profitability (RoA).

Business growth: Business growth for all categories of banks remained subdued in 2011-12 over 2010-11. The OPBs had the highest business growth followed by NPBs, NBs and SBI. The business growth was propelled by credit growth for all categories of banks. Thus, all categories of banks were affected by the liquidity shortage in the system.

NIM: NIMs declined in 2011-12 over 2010-11 for all categories of banks except SBI. Except for three banks each in the NB and NPB category, two banks in the OPB category, all other banks have a witnessed a deterioration in their NIMs. NIMs depend on the maturity profile of deposits and the bank’s ability to pass on the increased cost of funds to the borrowers. The fall in the NIM for majority of the banks possibly have been driven by the high cost of deposits in view of the liquidity shortage and inability to pass on the increased cost of funds fully to the borrowers in view of subdued credit growth.

GNPA: While both the NPBs and OPBS improved their asset quality in percentage terms, SBI and the NBs witnessed significant deterioration. However, as the loan portfolio grows, it is possible that the absolute amount of bad assets might increase. As such, the bad assets have to be seen relative to the loan portfolio. In absolute terms, GNPA in 2011-12 increased by 36 per cent for the NBs and SBI, by only 8 per cent for OPBs over 2010-11. For NPBs, GNPAs were maintained in 2011-12 at the same level in 2010-11. Growth of Advances was much higher than growth in GNPAs for all categories of banks except SBI in 2010-11. However, in 2011-12 in addition to SBI, NBs have witnessed a much higher growth in GNPA than growth in advances in 2011-12. As NBs and SBI account for more than 70 per cent of the banking assets of the system, the high levels of NPAs has drawn serious attention from the government and the RBI.

Cost to Income Ratio: Efficiency represented through cost to income takes into account the interplay of a bank’s interest bearing operations, non-interest income and operating expenses. Both the NBs and SBI improved their efficiency in 2011-12, where as NPBs witnessed a marginal decline and OPBs a significant decline. In terms of levels, NBs and SBI have similar cost to income ratios followed by NPBs and OPBs.

While for the SBI, the improvement in cost to income ratio is guided by a sharp rise of 33 per cent in net interest income, for NBs, it is a combination of reasonable growth in other income and containment in operating expenses. For NPBs, despite high growth in NII and other income, it is the increase in operating expenses by 22 per cent, which has pushed up this ratio. For OPBs, it is the subdued growth in other income and relatively higher growth in operating expenses which has kept their cost to income at relatively higher levels.

RoA: The interplay of NIMs, GNPAs and efficiency of operations was reflected in the profitability of different categories of banks. Both NPBs and SBI improved, OPBs maintained and NBs witnessed a decline in ROAs in 2011-12 compared to 2010-11.In terms of levels, NPBs had the highest RoA followed by OPBs, SBI and NBs.

Asset quality and lower operating efficiency have been the chief concerns of for NBs and OPBs respectively in 2011-12. Improving the RoA in a difficult operating environment is a commendable performance for the NPBs in 2011-12. SBI had seen a major blip in its performance in 2010-11. The asset quality further deteriorated in 2011-12.

As such, the improvement in RoA in 2011-12 is attributable to its pricing advantage and partly to the base effect.

 Many of the NBs have migrated to the system recognition of NPAs and have used 2011-12 to consolidate their balance sheets. This was a long pending house cleaning exercise which will add to their strength. If the growth scenario improves, they should be able to reap the benefits of their hard work.

(The author is Associate Dean, Xavier Institute of Management, Bhubaneswar. Views are personal)




Hotel Leela shedding assets to pay debt



BL :niveditag: June 24,2012
Future projects to be funded through sale of non-core properties
MUMBAI, JUNE 24: 
Hotel Leelaventure Ltd is planning to shed some of its properties and be an ‘operator/manager’ in its future expansion projects.
This method, also known as an Asset Light Strategy, is adopted by companies when their debt servicing costs mount and they want to reduce capital expenditure.
Future expansion
Leelaventure has already done this in its properties in Gurgaon and Kovalam. Now, its new properties too would be taken up for Management Contracts.
Mr Vivek Nair, Vice- Chairman and Managing Director, Hotel Leelaventure, told Business Line, “Such projects are planned in Jaipur, Bangalore near the international airport and in Noida, apart from the land banks the company has in Agra facing the Taj Mahal and Lake Ashtamudi, close to its Kovalam Beach Resort.”
With the launch of the Chennai hotel, the Group would have eight operating hotels with 2,222 guestrooms. Last year, the company hived off its Kovalam property for Rs 500 crore. The move managed to bring some respite to the company saddled with a debt of Rs 4,300 crore.
Non-core properties
As part of its fund raising initiatives, Hotel Leelaventure has also identified non-core real estate properties to be sold off.
Mr Nair said, “The Business Park constructed next to the Chennai hotel having a total built-up area of 2.25 lakh sq.ft. will be sold immediately.
The plot of land in Hyderabad is on an outright sale basis, instead of waiting for the joint development with a developer which would entail the company’s share to be received only in the next three to four years.” Other non-core real estate properties identified include the company’s share from the joint development in Pune for a residential complex and the company’s share from the joint development for residential development with Prestige Estates at a two-acre site adjoining its Bangalore hotel.
Both the Pune and Bangalore construction are scheduled to start in the next few months.
Hotel Leelaventure posted a higher net profit of Rs 210 crore for the quarter ended March 31, 2012 on the back of the sale of its Kovalam property.
The account was referred to the Corporate Debt Restructuring (CDR) cell last year. It has outstanding loans of Rs 4,300 crore borrowed from a consortium of 17 bankers.