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Delay Injustice; The Other Side Of The Coin

On 30 April 2022, the 48th Chief Justice of India, Honorable N. V. Ramana, spoke on various issues of the Indian Judicial system. Considering his bird's eye view from the top of APEX of the Indian Judicial System, I do not hesitate to say that he is a "People's Judge" in his true spirit. CJI speaks on all the four sides of the Indian Judicial System at the Joint Conference of Chief Ministers and Chief Justices of High Courts.

Indeed, the Joint Conference of Chief Ministers and Chief Justices of High Courts is a big platform, and one has to have superior observation and complete knowledge of all commas and full stops of the system.

At the same time, CJI did not miss to emphasize the front and the weaker side of our Judicial System, "Pendency" and "Vacancy."[1] I am here not to speak or comment on the "Executive" side of our Judicial System that manages "Appointments" of Judges and other Judicial and Non-judicial Staff recruitments. But I am here to elaborate on one statement of Honorable CJI N. V. Ramana; "Pendency."

Being an Advocate and officer of the Court, [2] I witnessed many litigants blaming the system for the delay; of course, I also observed that they have their own set of reasons and mostly lack procedural knowledge of the Judicial System. But today I am here not to talk only about the front side of the coin but also about the "Other Side" of the coin.

Let me get to the point straight by asking a simple question; can we blame our judges only for a delay in justice delivery, who work almost 24 X 7 to deliver the justices? How correct is that...? To the best of my knowledge, I have never witnessed any Protest organized by the Judicial Officers during my lifetime.

Have you any...? I guess the answer is NO. By looking at the other side of the coin, I can share several events where citizens of India and various organizations have initiated protests against the Judges of India. And in a replay, they have always maintained the dignity of their post. Though I am not saying that all Judges and allegations against them are baseless, I am not inclined to talk about said allegations or discuss how they acted in return.

I am here to talk about what our Judges are saying by keeping mum and by various orders pronounced in the open courtroom as far as delay in justice delivery is concerned, at the same time keeping in mind their general behaviour at large.

I have always seen them silent, even if they are angry about some radical act or during the hearing of some case where the party is just misusing the entire Judicial System for personal benefits. In every Judgment I read, I have always read one line in somewhere the middle of the Judgment, "Heard Learned Councils." Being an Advocate, I have always believed that there is an unsaid communication between the Bar and the Bench.

If I put my foot in a Judge's shoe, then being a Judge, I should never be pre-decisive, and I have to listen to each side of the part present in the courtroom without any prejudice. At the same time, I have to give them enough opportunity to submit their Affidavit, Re-Joinder, Counter Affidavit, Affidavit by the way of Objection, and 7 - 9 Point Affidavit, etc.

I have witnessed many adjournments taking place during the day-to-day court proceedings. Advocates appeal to the Honorable court to adjourn the matter for the day and provide the next date, which is convenient to the Advocates. Except few intense, I have always seen Judges looking at the calendar and providing the most convenient date again and again before the delivery of the most desired Justices. Here at this junction, I would like to share one of my personal experiences.

I was seated in the first row of the BAR, waiting for my matter to the board. Advocate appearing from the borrower side in the proceedings of Section 14 of SARFAESI Act, 2002; seeking an Adjournment for the day. The Judge said it was the 45th day of listing the matter, and I have a limitation of 60 days. He further adds, tell me what you want to submit to the court on the next date, which you cannot submit today?

The advocate replies I want to apply to transfer the said matter to the upcoming "Lok-Adalat." I was looking at the bottom of Emblem of India, behind the BENCH, the Horse, and the Bull. Tell me honestly, who is in incompetence now!? The BAR or BENCH...!? I may sound against the community while being part of the community. Here, I am elaborately trying to shed some light on the other side of the coin and not the front side, which is always Ga-Ga about everything.

Let me quote a judgment of the Honorable Apex Court and two judgments of the Honorable Gujarat High Court supporting my thought process.

Judgment: 01, In the matter of Union of India and others Versus Pirthwi Singh and others reported in (2018) 16 SCC 363, the Supreme court observed [3]:
"15. To make matters worse, in this appeal, the Union of India has engaged 10 lawyers, including an Additional Solicitor General and a Senior Advocate! This is as per the appearance slip submitted to the Registry of this Court.

In other words, the Union of India has created a huge financial liability by engaging so many lawyers for an appeal whose fate can be easily imagined on the basis of existing orders of dismissal in similar cases. Yet the Union of India is increasing its liability and asking the taxpayers to bear an avoidable financial burden for the misadventure. Is any thought being given to this?

16. The real question is: When will the Rip Van Winkleism stop and Union of India wake up to its duties and responsibilities to the justice delivery system?
17. To say the least, this is an extremely unfortunate situation of unnecessary and avoidable burdening of this Court through frivolous litigation which calls for yet another reminder through the imposition of costs on the Union of India while dismissing this appeal.

We hope that someday some sense, if not better sense, will prevail on the Union of India with regard to the formulation of a realistic and meaningful National Litigation Policy and what it calls 'ease of doing business', which can, if faithfully implemented benefit litigants across the country."

Let me go back to the Joint Conference of Chief Ministers and Chief Justices of High Courts and share what CJI N. V. Ramana said in the esteem presence of our Prime Minister, Shri Narendra Modi. "It is a well-acknowledged fact that governments are the biggest litigants, accounting for nearly 50 percent of the cases, the CJI said. And gave illustrations as to how inactions of various wings of the executive forces citizens to approach courts." [4] And the award of "Delay in Justice Delivery" goes to the Judicial System only...!

It is a well-settled fact in India that the interpretation of the statute rests upon the shoulders of the Judiciary and the Judiciary is one of the pillars among the three pillars of Indian Democracy. Chief Justice of India, Honorable N. V. Ramana, while addressing the Joint Conference of Chief Ministers and Chief Justices of High Courts reminded to the Honorable member of the conference that the "State's three organs; Executive, Legislature, and Judiciary, to be mindful of the 'Lakshman Rekha' while discharging their duties". CJI assured Governments that "The Judiciary would never come in the way of governance if it is in the accordance with the law."

It is not only the Union Government of India acting alone against the principles of Jurisprudence while igniting the ego system of being "I am always right." Individuals from small-town like Vadodara have also learned how to turn and twist the Indian Judicial System for personal benefits. Let me bring to your kind attention one of a kind legal matter, which consumed 6684 days of the Indian Judicial System in the delivery of a judgment, which one can easily extract from the evaluation of the first agreement between Appellants and Respondents to the case.

Judgment: 02, In The Matter of Rudraksh Properties Pvt. Ltd Through Chairman Cum Managing - Appellant(S) Versus Trade Wings Limited - Respondent(S) in Letters Patent Appeal No. 305 Of 2011, In Special Civil Application No. 14277 Of 2010 Honorable Gujarat High Court observed that [4]:

2.1 The appellant is a private limited company. The respondent is a public limited company incorporated under the Indian Companies Act, 1956 and having its registered office at Vadodara. The appellant entered into an agreement dated 20.05.1993 under which the respondent as a tenant agreed to hand over vacant possession of the premises occupied by it as tenant situated on the ground floor of 943, Vibhag C, Tika No.8/4 together with an open space of 511 sq. ft. in front of the said premises situated at Alankar Building to the appellant in exchange of new premises to be allotted by the appellant on ownership basis in the new building which was to be constructed by the appellant.

The respondent herein apprehending that the appellant may commit breach of the said agreement preferred a Special Civil Suit No.604 of 1993 in the Court of Civil Judge, Senior Division at Vadodara and prayed for a decree of specific performance. In Special Civil Suit No.604 of 1993, consent terms duly signed by the respective parties were placed on record of the suit and the Civil Court based on the said consent terms proceeded to pass a consent decree.

45. We could have observed many things about the conduct of the appellant but we have refrained ourselves from making any observations. We may only say that the appellant entered into an agreement with the respondent and obtained a consent decree in terms of the settlement. Having taken advantage of the terms of settlement, when time has come for the appellant to discharge his part of the obligation, it appears that the appellant is now resiling from the terms of the consent decree.

Table of Events and Dates
Sr. No Date Event in Brief Remarks
1 20-05-1993 Parties Entered into an Agreement Stage # 1
2 In the year 1993 Tenant preferred Special Civil Suit No. 604/1993 Stage # 2
3 20-08-1997 Special Darkhast No.46 of 1997 Stage # 3
4 03-09-2010 Order passed by the 10th Additional Senior Civil Judge, Vadodara Stage # 4
5 13-01-2011 Judgment and order passed by the learned Single Judge in Special Civil Application No.14277/2010 Stage # 5
6 06-09-2011 Letters Patent Appeal 305 of 2011 in SCA/14277 of 2010 Stage # 6

This matter disclosed the mala-fide intention of an Indian citizen who knows how to twist and turn the Indian Judicial System.

Just look at the modus operandi of the Appellant he entered into an Agreement with a Tenant to get a Vacant and Peaceful possession of Long Leased Immovable Property. He again signed a "Consent Decree" in the Civil Court of Senior Division and then refused to discharge his obligation and dragged the Respondent to various courts for more than 18 years.

Tell me frankly, whom to blame in this regard? I heard from the corridor of the Vadodara Court Building that even after the order of the Honorable Gujarat High Court, the matter was pending for many months for final execution at Civil Court Vadodara.
Now, last but not least, let's check the attitude of a Nationalised Bank that overruled all the Adjudicating Authority, and finally, land up to pay the cost of INR 5 Lakhs.

Judgment: 03, In The Matter of Punjab National Bank Versus M/s Mithilanchal Industries Pvt. Ltd. in Letters Patent Appeal No. 159 of 2020 In R/Special Civil Application No. 19920 of 2019 Honorable Gujarat High Court Observed that [5]:
  1. We would like to begin by the saying that the biggest problem that confronts the judiciary today is, pendency of cases. The present matter before us, certainly adds to the problem and is a classic example of how such cases contribute to the judicial system getting over-burdened.

    What could have been done 3 years ago by issuance of a fresh notice by merely adding a few words to satisfy the requirement laid down by law, has been delayed unnecessarily and contested in a manner that has left us bewildered. This mind-set of Governmental agencies/undertakings such as the appellant bank, a nationalised Bank before us, to engage in such frivolous, vexatious and impractical litigation demonstrates the gross indifference of the administration towards litigative diligence.
     
  2. The present litigation initiated by the appellant Bank, right from the inception has resulted only in loss of the time of the various judicial forums that have been approached by the appellant Bank and is also a drain on the public exchequer. What perplexes us most, is that in such financial matters, the objective is quick recovery and lowering the possibility of losses. However, by engaging in the present litigation, the attitude adopted by the appellant Bank and its officers has borne results that are against the interests of the Bank and a matter that could have been laid to rest by rational thinking has been unnecessarily dragged for 3 years.

    When such litigation reaches our doorsteps, we feel exasperated by the inaction or rather the wrongful action and by the policy of blindly engaging in litigation before various judicial forums as entities such as the appellant Bank before us are expected to exercise finer sense and sensibility in their litigation policy, as compared to an individual litigant.

7. The Debt Recovery Tribunal vide judgment and order dated 22.06.2017 set aside the demand notice under Section 13(2) of the SARFAESI Act and all consequential proceedings and further directed the Secured Creditor to restore the possession with the liberty to proceed afresh in accordance to law. The finding of the Tribunal was that the notice was not in accordance with the statutory provision provided in Section 13(3) of the SARFAESI Act as it did not contain the details of the amount due and also the correct details of the secured assets.

15. The Debt Recovery Tribunal, the Debt Recovery Appellate Tribunal and the learned Single Judge of this Court concurrently and consistently based upon bare perusal of Section 13(3) of the SARFAESI Act as also the law on the point held against the Secured Creditor. The Secured Creditor instead of correcting its mistake as had been pointed out by the Tribunal, the Appellate Tribunal and the learned Single Judge, has now filed the present appeals and has sought to canvass that it was not necessary for the Secured Creditor to provide the breakup of the outstanding amount and mention of one single figure would be due compliance of the provisions under Section 13(3) of the SARFAESI Act. Further, according to the appellant, Secured Creditor, the details of secured asset are also correct.

18. Although Mr. Parikh in his written submission has given detailed arguments running into 15 pages, but the substance of the arguments is only what is recorded above. Further reliance is placed upon the following decisions by the learned Senior Counsel Mr. Parikh : {7 Judgments QUoted in title} With reference to various case-laws detailed herein above, having gone through each of them we may say with respect that they have no application in the facts and circumstances of the present case and the legal issues relevant for the present proceedings.

21. Mr. Sanjanwala further submitted that the Debt Recovery Tribunal had given opportunity to the Secured Creditor to issue fresh notice in accordance to law as far back as in June, 2017, but the Secured Creditor taking a stringent stand which is untenable in law has been dragging the Borrowers into unnecessary litigation right upto this Court. This being the fourth round, it does not at all appear to be a logical and reasonable action on the part of a nationalized bank, the Secured Creditor.

46. The present case, as highlighted by us in the paragraphs hereinabove, is a classic example how the judicial system is getting clogged with frivolous litigation. The facts and the circumstances that have led to the filing of the present appeal before us, leave us with no choice but to impose exemplary costs on the appellant Secured Creditor. The Hon'ble Supreme Court has stressed in a catena of matters that costs should be in real and compensatory terms and not merely symbolic. We are of the firm opinion that costs act as a deterrent to vexatious, frivolous, impractical and unnecessary litigation. The whole objective behind imposition of costs is that every litigant, especially big public sector entities, like the appellant bank, would have to think twice before engaging in such litigation, as the one before us.

47. The appellant Secured Creditor ought to have at the first instance corrected its mistake by issuing a fresh notice providing the details of the amount payable by the Borrower as also correcting the details of the secured assets rather than continuing to challenge it repeatedly before every possible forum and wasting its time. The litigation is ultimately going to cause suffering to the appellant Bank i.e. Secured Creditor.

50. We accordingly are of the view that this matter requires costs to be imposed upon the appellant Bank which we quantify at Rs.5.00 lakhs per appeal. The amount of costs to be deposited within one month from today with the Registrar General of this Court whereupon the same shall be transmitted to the Gujarat State Legal Service Authority. This amount is to be recovered from the Officers found responsible for carrying on this frivolous litigation.

Sd/-
(VIKRAM NATH, CJ)

Even after such strict words and providing elaborated order, Punjab National Bank requested the Honorable Gujarat High Court to grant some time to deposit INR 5 Lakhs. On 24-12-2020, the CJI of Gujarat High Court allowed the application of Punjab National Bank and provided unlimited time to India's second-largest Public Sector Bank to deposit INR 5 Lakh.

Hats off to the Honorable CJI Vikram Nath for his generous approach.
It seems like Punjab National Bank was not learned its lesson and again approached the Honorable Gujarat High Court with an Application to "Recall" the cost. In his order, the CJI wrote the third word of the first paragraph of the order, "We have heard." Just look at the patience of our Judges. It needs a lot of courage to listen to a person, constantly misusing the system and overruling the precedent again and again.

I believe that our Judges and Judicial System is most flexible and follows the Constitution of India and its true spirit. I have no doubts that our Judicial System is working efficiently as the third pillar of Indian Democracy. Any word against such a humble (Bull) and efficient (Horse) system are as good as contempt for our constitution.

We, a citizen of this great nation, have to take a stand with the Judiciary under any circumstance and protest against Individual/ Organisation/ Company/ PSU/ Union Government, and State Government that tries to challenge or compromise the efficiency of our Judicial System.

We have seen people take a stand for Independence, fighting against Poverty, Craving for Development, Raising their voices for better Education, Medical Reforms, the Information, and Technology Initiative, Telecom Revolution, and whatnot.

Now it is high time to take a stand for our Judiciary and let the world knows that now there are people who want to join hand with those who never try to prove themselves. Before I conclude, I have to quote one line for our Judicial Officers will say that "They very well describe what a thankless job is."

Reference:
  1. https://economictimes.indiatimes.com/news/india/cji-terms-govts-as-biggest-litigants-says-docket-explosion-due-to-executive-legislature/articleshow/91203374.cms
  2. http://www.barcouncilofindia.org/about/professional-standards/rules-on-professional-standards/
  3. Union of India and others vs. Pirthwi Singh and others reported in (2018) 16 SCC 363.
  4. Rudraksh Properties Pvt. Ltd Through Chairman Cum Managing - Appellant(S) Versus Trade Wings Limited - Respondent(S) in Letters Patent Appeal No. 305 Of 2011, In Special Civil Application No. 14277 Of 2010.
  5. Punjab National Bank Versus M/s Mithilanchal Industries Pvt. Ltd. in Letters Patent Appeal No. 159 of 2020 In R/Special Civil Application No. 19920 of 2019.

Written By: Amish J. Dadawala, Advocate
,� B.com LLM

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