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Citizens very often complain about our legal system and as to how the Courts are functioning in this country. People having experience with Courts will explain in detail as to how our system functions. Unless one is a habitual litigant misusing the Court process knowing the ‘loop-wholes’, citizens are afraid to approach Courts in this country and they compromise their rights and entitlements at times rather going Courts. Every one knows the issues of pendency in Courts, often alleged corruption, deficiency in service at times and problems with the technicalities.
A good legal system represents good governance in the Country. We may say that India is a vibrant democracy and we may further proudly say that Indian society reflects ‘Unity in Diversity’. There are critics of democracy and they show caste politics, purchasing votes in elections, leaders looting billions of public money and criminals getting elected in the elections. Whatever may be the achievements of India and the criticism, the fact remains that India is a complex nation and issues are so complex.
After the constitution of Debt Recovery Tribunals (DRT) and Debt Recovery Appellate Tribunals (DRAT) under The Recovery of Debts due to Banks and Financial Institutions Act, 1993 and after conferring the authority to entertain appeals from the aggrieved persons under section 17 of SARFAESI Act, 2002, Banks have gained an upper-hand in the course of recovery of their dues. It is hard to see a Bank now going to Civil Court or facing a Civil Proceeding in-respect of recovery of their dues.
Under the provisions of ‘Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (‘SARFAESI Act’ in short), the Bank can invoke the process of recovery of money on its own without any adjudicatory process. The Banks can proceed with the enforcement of ‘security’ under the provisions of SARFAESI Act, 2002. If any borrower or any person is aggrieved with the action initiated by the Bank under the provisions of SARFAESI Act, 2002, then, he can approach the Debt Recovery Tribunal (DRT) under section 17 of the Act by paying the prescribed fee.
Company Law Board exercises very important functions under section 397/398 of the Companies Act, 1956 providing relief to the shareholders against ‘oppression and mis-management’ in the Company. When a group of shareholders are oppressed in any company or the company is mis-managed causing loss to the interests of the shareholders, shareholders very frequently exercise the option of approaching the Company Law Board under section 397/398 of the Companies Act, 1956 if they are qualified to do so under section 399.
Banks used to take advantage of the provisions of SARFAESI Act, 2002 earlier in taking possession of the ‘secured asset’ even when the tenant was in possession of the property. Absolutely, there is no difficulty in taking the possession of the ‘secured asset’ using the protection and assistance under Section 14 of the Act if the property was actually in possession of the borrower or the guarantor.
It is always welcome to enable the Banks to recover their dues using the provisions of SARFAESI Act, 2002. It is known that it is very difficult for the Banks to approach Civil Court asking for a decree and getting that decree executed. With the intention of enabling the Banks to reduce their NPAs through faster recovery of dues, ‘The Recovery of Debts Due to Banks and Financial Institutions Act, 1993’ was enacted.
Shareholders qualifying under section 399 of Companies Act, 1956 can approach the Company Law Board under section 397/398 seeking preventive and remedial measures against the oppression and mis-management in the Company. Though, section 397/398 is meant to provide relief to the minority shareholders against the actions of the majority, even the majority can approach under section 397/398 of the Companies Act, 1956 and at times, the majority may not be in actual control of the company or the majority becomes artificial minority.
It would be clueless for the professionals at times in answering the queries of the borrowers facing proceedings under ‘The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002’. If the Bank initiates proceedings under the provisions of SARFAESI Act, 2002, then, in view of section 34, no Civil Court shall have jurisdiction to entertain any suit or legal proceeding in respect of the same subject matter.
No one can defend a willful defaulter and no one can possibly object to the need of providing a special legislation to enable the Banks to recover their dues speedily and thus reduce their ‘Non-performing Assets’. Constitutional validity of ‘The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002’ (in short ‘SARFAESI’) was upheld by the Supreme Court and the Courts have given guidelines from time to time as to how to interpret various provisions of SARFAESI Act, 2002.
