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Breaking: Amicus Curiae notes several discrepancies in working of Debt Recovery Tribunals [Read Report of Amicus Curiae]

Earlier, in the month of October, while hearing an SLP filed through Advocate Lakshmi N. Kaimal, challenging the constitutionality of Section 13(5A) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the attention of the Bench of Justices Adarsh Kumar Goel and Uday Umesh Lalit was drawn to the appointment process and the functioning of Debt Recovery Tribunals by Advocate Renjith B. Marar appearing on behalf of the petitioner.

It was contended that the appointment process and functioning as provided under the Recovery of Debts and Bankruptcy Act, 1993 was not as per the observations in the judgments of the Court to uphold the independence of judiciary. The court also requested Senior Advocate Arvind P. Datar to assist the Court as amicus in the matter.

As requested by the Court, Senior Advocate Arvind P. Datar, submitted his report. In the report he notes that appointment, resignation and removal of the members of the Tribunal including the Presiding Officer and Chairperson of the Appellate Tribunal are in contravention of the principles laid down by the Supreme Court.

The Amicus further notes that the power of the Central Government under Rules 4 and 5 of the Debts Recovery Tribunal (Procedure for Investigation of Misbehavior or Incapacity of Presiding Officer) Rules, 2010 can compromise the independence of the Tribunal as the “Central Government will wield a considerable amount of power to remove the Presiding Officer or the Chairperson of the Appellate Tribunal.”

The Amicus further notes that,

“The practice of the DRT of submitting the monthly and yearly reports detailing the number of cases filed, pending and disposed, which even though not specified in the parent Act, clearly compromises the independence of the DRT” as the same may influence the decisions of the Presiding Officer of the Tribunal and “amounts to unwarranted interference by the members of the Executive in the functioning of the DRT.”

The Amicus further submitted a report detailing the regulation of the various tribunals in India.

The Amicus notes that there is a lack of uniformity among the various Tribunals from the Selection Committee to the qualifications, re-appointment and tenure and recommends for uniformity in the same along the lines of the recommendations of the Law Commission of India in its 272nd Report. The report also calls for the setting up of a National Tribunal Commission under the aegis of the Ministry of Law and Justice as a nodal agency.

Taking note of certain tribunals such as the National Green Tribunal, National Consumer Dispute Redressal Commission, Telecom Disputes Settlement Appellate Tribunal etc, bypassing the power of judicial review of the High Court under Article 226/227 of the constitution of India, the Amicus submits that the same is in violation of the precedents laid down in L. Chandra Kumar’s and Madras Bar Association Case and recommends appeals from such tribunals to lie in front of a ‘Division Bench’ of the High Court in whose territorial jurisdiction the cause of action has arisen and not the territorial jurisdiction of the High Court. The Amicus also notes there are several discrepancies in the salary structure as well as the age of retirement.

The Court has now posted the matter to the first week of December.

Read the report of Amicus Curiae on functioning of DRT:

 

Read the report of Amicus Curiae on functioning of Tribunals:

 

Read the Order of the Supreme Court requesting Arvind P. Datar to assist the Court on the matter as amicus:

 

 

Arvind P. Datar’s image from here.

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