Friday, December 22, 2017

DOMINUS LITIS : NECESSARY PARTY / PROPER PARTY TO SUIT

Dominus Litis :  General Rule related to impleading in a suit is that the petitioner in a petition being dominus litis ( master of suit ) may chose the persons against whom he wishes to litigate and can not be compelled to sue a person against whom he does not seek any relief.  A person who is not a party has no right to get impleaded against the wishes of the Petitioner.  Necessary party or property party as prescribed in Order 1, Rule 10 of the Civil Procedure Code are impleaded in the suits.  Necessary Party is such without whom no order can be effectively made.  Property Party is that in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of the issues involved in the proceedings.  (State of Assam Vs  Union Of India  2010 10 SCC 408 which has been reaffirmed in Vidur Impex Traders Private limited Vs Tosh Apartments Private Limited reported in 2010 8 SCC 384]

Thursday, October 26, 2017

CAUSE OF ACTION - CPC ORDER 7 RULE 11

2015 (5) ctc -45  : Tim Boyd International President Vs Kesiraju Krishna Phani - CPC Order 7 Rule 11 - Cause of Action is bundle of facts including some acts done by defendant which if traversed, it would be necessary for plaintiff to prove in order to sustain relief sought by him.

Monday, May 29, 2017

THE INSOLVENCY AND BANKRUPTCY CODE, 2016

I.            Object of the Act:
An act to consolidate and amend laws relating to reorganization and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner.
The Act deals with insolvency of the following persons:
·         Corporate Persons i.e companies
·         Partnership Firms
·         Individuals

BENAMI TRANSACTIONS (PROHIBITION) AMENDMENT ACT, 2016

NOTE ON Benami Transactions Prohibition Act:
  • Object of the Act: The Benami Transactions (Prohibition) Amendment Act, 2016 (The Act) prescribes administrative and legal procedure to curb domestic black money.  The Act prohibits benami transactions and provides for attachment and confiscation of benami properties besides prescribing prosecution of persons involved in benami transactions leading to imprisonment up to seven years.

Saturday, May 2, 2015

LIABILITY OF BANK IN BORROWER'S FAILURE TO RENEW INSURANCE POLICY

In Central Bank of India V Jagbir Singh CIVIL APPEAL NO. 3645 OF 2015 (Arising out of S.L.P. (Civil) 2343 of 2014 Hon'ble SC held that the Creditor Bank is not liable to pay compensation for non-renewal of insurance policy after referring the following law laid down by the SC:
In Pradeep Kumar Jain v. Citi Bank and another, Hon’ble SC while discussing Section 146 of Motor Vehicles Act, 1988 held as under: - 1 (1999) 6 SCC 361

Friday, February 6, 2015

REGISTRATION OF CHARGES UNDER THE COMPANIES ACT, 2013

REGISTRATION OF CHARGES UNDER THE COMPANIES ACT, 2013
Chapter VI of the Companies Act, 2013, containing section 77 to 87 deals with registration of charges in the ROC. The said provisions replace the sections 124 to 145 of Chapter V of the Companies Act, 1956. As per the new provision section 77 of the Companies Act 2013, every company creating a charge on its property or assets has to register the particulars of charge signed by the Company and charge holder together with instruments with in thirty days of its creation.  As per clause (3) of Section 77 of Companies Act 2013, no charge created by a company shall be taken into account by the liquidator unless it is duly registered.   

Thursday, February 5, 2015

ENFORCEMENT OF SECURITY INTEREST UNDER SARFAESI, ACT 2002
(Section 13 to 19 of the Act)

I.  Demand Notice under section 13(2) of SARFAESI ACT

(i)                 Requirement for initiation of Demand Notice
(a)    Account should have been classified as NPA
(b)    Documents should not be time barred (Section 36)
(c)    Above 1 lac ceiling (Section 31)
(d)   Total outstanding should be above 20% of total sanction (Section 31)
(e)    Secured Asset should not be agriculture land (Section 31)

(ii)               Important Contents of 13(2) Notice
A)    Advance details
B)    NPA date
C)    As on date dues payable
D)    Details of  Secured asset intended to be enforced

(iii)             Service of Demand Notice
Transmitting or delivering the 13(2) Demand Notice
to borrower including  Guarantors
at  (i) his Residence or
    (ii) place of business or
(iii)             place works for gain
Through
(i)                 Registered Post
(ii)               Speed Post  conspicuous
(iii)              Courier
(iv)              Email
(v)               Fax

(iv)             List of  Records to be preserved
1.       Copy of the 13(2) notice sent to all the borrowers including guarantors
2.      Postal receipts
3.      Acknowledgement card or returned cover or print out of status of delivery

 Substituted Service

4.      Affixture Photo of 13(2) at outer door or any conspicuous part of the building where borrower resides or his work place
5.      Paper publication (Both Tamil and English)
                                                  

  
II.   Reply to Representation or objection raised in response to the 13(2) notice
       (Reply should be with in fifteen days from receipt of the notice)     



III. Possession under section 13(4) of SARFAESI:

(1)  Requirement for initiation of possession notice
            (a)  Notice under Section 13(2) should have completed AND found to be in order.
            (b)  Sixty days should have completed from the date of notice
           
(2) Procedure of taking possession (Rule 8 (1) & (2) of Security Enforcement Rules, 2002)
      1. Delivering the possession notice to the borrower
      2. Affixing the Possession notice on the outer door or any other conspicuous place of the secured asset
      3.  Publishing the possession notice in two dailies having sufficient circulation  
           (English & Vernacular) within seven days after taking possession.

(3) List of Records to be preserved
1.      13(4) Affixture Photograph with authorized officer
2.      Postal receipts
3.      Acknowledgement card or personal acknowledgement on the copy of the possession notice or postal delivery status print out
4.      Copy of the paper publications (Vernacular and English)

(4) Remedies available to the borrowers (Section 17)
      Borrower or Guarantor or any other person (Tenant or person who is disputing title ) may approach the DRT against the possession notice by filing SA under Section 17 of SARFAESI Act within 45 days from the date of possession.

IIIa.  Physical Possession (Section 14)
(i)                 Filing an application before Chief Materopolitan Magistrate or District Magistrate to assist Authorised Officer to take physical possession of the property.

(2)   Application should be filed before CMM if the property situated within CMM jurisdiction otherwise to be filed before District Magistrate ie The Collector of concern District.




---------------------------------------------------------------------------------------