Humility, His Hallmark

(By K. Ramakumar, Senior Advocate, High Court of Kerala)
E-mail : ramakumarassociates@gmail.com             Ph.0484-2376428
 

The Bible says,“The more you attain heights, the more humble you should be.”

 We had one Judge among us who practised this noble and wise precept. It was Shri Justice P. G. Ajithkumar. Right from day one of his entry into judicial service as a humble magistrate till the day he demitted a high office, he maintained the excellent quality of humility. The members of the Bar had always been speaking of his gentle, courteous and mild manners. He had proved to the practitioners that respect emanates not from shouting at them,slighting them or lording over them in trivial matters,but from treating them in an affable manner as partners in the noble cause of administering justice.

He was one Judge who never forgot that lawyers represent some of the most unfortunate category of citizens who are drawn into litigation often endless in nature. The Britishers had provided even statutorily that proceedings of the courts are open to the public, which, fortunately, we are still following. Often the hapless litigant is present in court with his heart pounding when his case is taken up, full of anxiety, uncertainty and even despair. Shri Justice Ajithkumar knew this very well, which is why the hallmark of his character humility often helped lawyers to alleviate the sufferings of the poor litigant to some extent. He was not media crazy, but the remarkable trait of his character gained wide circulation among practitioners, litigants and the members of the public.

Shri Justice Ajithkumar demonstrated that being humble is a great virtue, and when combined with a firm, sturdy and principled judicial attitude, it goes a long way in moulding a great Judge. In his own humble manner, he performed his job very well. And even in areas in the field of law, generally considered unfamiliar to him, he had rendered remarkable judgments. What the judiciary needs is such Judges with humility, commitment, and firmness.

A Judge after demitting office, it is common knowledge, will not get the same attention that he received while in office. Practical minded lawyers never care to pamper Judges of the past. Nevertheless, there are some Judges who had behaved well with the Bar who continue to gain attention, regard, respect, love and affection from the members of the Bar even after they lay down their office. Shri Justice Ajithkumar finely fills this bill.

The High Court of Kerala is really losing a fine Judge in the retirement of Shri Justice Ajithkumar. He, however, will continue to get the regard, respect and warmth from the members of the Bar, who all will remember him as a gentleman Judge. May God bless him with good health and happiness.

Adjournment is always the Discretion of the Court and Never the Right of Lawyer

(By A.S. Madhu sudanan, Advocate, Thalassery)
E-mail : asmadhusudanan@gmail.com                                    Mob.: 9846240366

Obtaining an adjournment is an art. Yet the first job that the most novice junior lawyer is entrusted at the office of his senior is to obtain an adjournment. After enrolment I had to obtain several hundred adjournments on behalf of the senior lawyers, I practiced under. And on many occasions the Court was not pleased to grant an adjournment in spite of my vehement prayers which sometimes, led to devastating consequences.

Once I sought an adjournment from a Sub Judge and my excuse was that the senior lawyer holding vakalath was out of station as he had to appear in a brief in Ernakulam at the Kerala High Court. The lawyer on the opposite side was present and ready and a witness was also present on that day for examination. Naturally the Sub Judge was not inclined to grant the adjournment and some other arrangement had to be made for cross examining the witness present on the day. I was left with a notion that the Judge who refused to grant me an adjournment at my request was very prejudiced against me. However this experience also motivated me examine the relevant statutory provisions under which adjournment is granted and to study the same. As and when I went through the said provisions my notion with regard to the Sub Judge disappeared and I came to understand that the adjournment is the discretion of the Court to be exercised on the  well-established principles laid down under the respective procedural laws governing civil and criminal jurisprudence.

I came to understand that under Code of Civil Procedure the provisions relating to adjournment is Order XVII. The said provision has three sub rules but Order XVII Rule 1 is the most important provision relating to the principles upon which the Civil Court is expected to grant adjournment for the day in a civil proceedings. As far as the criminal procedure is concerned the relevant provision is Section 309 of the Code of Criminal Procedure (Section 346 of the BNSS).

The principles that are to be followed by a Court while granting an adjournment is more or less similar in both civil and criminal cases. Before examining the principles enshrined in the said procedural laws it is important to understand while granting adjournments the courts would consider whether grant of such adjournments will jeopardise the right to speedy trial of the opposite party. InMohanlal & Anr. v. State of Punjab (2013 (4) KLT Suppl.20 (SC) = (2013) 12 SCC 519) the Apex Court was pleased to observe “No procedure which does not ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul of Article 21…”

The general principles enshrined in the Order XVII Rule 1 CPC as well as Section 309 Cr.P.C. or 346 BNSS are as follows: -   

    a. Where hearing or evidence has commenced it shall be conducted on a day to day basis until conclusion and adjournment beyond the next day shall be granted only in exceptional circumstances (Lt.Col.S.J. Chaudhary v. State (Delhi Adminis-tration) (1984 KLT OnLine 1217 (SC) = AIR 1984 SC 618).

    b. If a witness is present for examination the Court is within its discretion to refuse to adjourn the matter (Mohd. Khalid v. State of West Bengal ((2002) 7 SCC 334) at paragraph No 55);

    c. During hearing or during conduct of evidence, adjournment shall not be granted at the request of a party unless for reasons which are beyond the control of the party which necessitates an adjournment;

    d. The fact that the pleader is engaged in another court shall not be ground for
adjournment. (P.G.Thampi v. State of Kerala & Ors. (1993 (2) KLT 926)). While hearing a matter listed for evidence if the pleader is absent as he is out of station or if he is engaged in another Court, the Court is well within its right to refuse to grant adjournment.

Where a witness is present in court but the pleader of the opposite party is not present, the Court is well within its right to record the statement of the party and to dispense with the cross examination of the witness present on the day;

The Court has the discretion to employ the above principles to grant adjournments and sometimes to refuse the same also. In fact in a recent case the Supreme Court took notice of the witnesses turning hostile after tendering chief examination when long adjournment is granted for the purpose of cross examination and therefore held that the chief examination and the cross examination must as far as possible be conducted on the same day. Such a procedure was envisaged by the Apex Court for the purpose of preventing the abuse of the process of law by the parties and witnesses (Mukesh Singh v. State of Uttar Pradesh & Anr.). Similarly in Ramon Services (Private) Limited v. Subhash Kapoor (2001 (1) KLT 34 (SC)) it was held that the cases should not be adjourned to help the striking lawyers.

Hence it is apparent that when an adjournment is sought the Court has to examine whether there is sufficient cause for seeking such an adjournment. Especially in listed matter the Court has to examine whether adjournment is sought for reasons beyond the control of the party and his counsel and that the said adjournment is not merely vexatious or an abuse of the process of the Court. The Court, must refuse to grant the adjournment, at the behest of a pleader who is absent or who is not ready to proceed in the given case or at least grant such adjournment only upon payment of cost for the loss caused to the opposite party. However when the Court is convinced that the party is justified in seeking the said adjournment, the Court shall grant the same possibly by compensating the loss caused to the opposite party or the witness present in the Court on the day. Thus adjournment is always the discretion of the Court to be exercised on sound principles laid down in our procedural laws especially Order XVII Rule 1 of the CPC and Section 309 of the Cr.P.C. which is now replaced by Section 346 of BNSS.

Legal Position if Sarfaesi Proceedings are Initiated
Against Agricultural Land

“Help, master help; here’s a fish hangs in the net, like poor man’s right in the law:
it will hardly come out.” (Shakespeare, Pericles of Tyre, Act II, sc.ii)

(By Advocate Aswin Joe Pichappilly)
E-mail : aswinjoepichappillil@gmail.com                                          Mob.: 6282204281

INTRODUCTION

As per the statutory dictionary in S.2 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002 no definition for the expression “agricultural land” is given. Whether a particular piece of land is agricultural in nature is a question of fact. In Chapter VI, Section 31 of the Act points out in which all matters the act has no application. Section 31(i) of the Act says that the act has no application in“any security interest created in agricultural land”. So then the question arises in which forum the party needs to approach if SARFAESI proceedings are initiated against the agricultural land. Many litigants approach the civil courts and some at Debt Recovery Tribunal (DRT) to restrain SARFAESI proceedings against agricultural land. Section 34 of the SARFAESI Act expressly bars the jurisdiction of civil courts in any matters in which the Debt Recovery Tribunal or the Appellate Tribunal is empowered to act upon. Sections 17, 17-A, deals with the powers of DRT and Section 18 deals with the powers of the Appellate Tribunal. So there arises confusion amongst lawyers and litigants whether to approach DRT or the Civil courts if SARFAESI proceedings are initiated against agricultural land and who has the burden to prove the same.

CIVIL COURTS AND SARFAESI PROCEEDINGS:

As, per Section 31(i) of the Act says that the act has no application in “any security interest created in agricultural land”. Then the question arises what all lands comes within the ambit of an agricultural land. Then most recently the Honourable Supreme Court inIndian Bank v. K. Pappireddiyar₁it is held that:

“9..............Whether a parcel of land is agricultural must be deduced as a matter of fact from the nature of the land, the use to which it was being put on the date of the creation of the security interest and the purpose for which it was set apart.”

Then the question arises in which forum the litigants need to approach if proceedings are initiated against agricultural land. As per section 9 of the Code of Civil Procedure,

S.9 Courts to try all civil suits unless barred.-The court shall (subject to the provisions herein contained) have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

On reading Section 31 (i) of the SARFAESI Act it gives a picture that the act has no operation over agricultural land. So the litigants start approaching the Civil Courts seeking relief to restrain the bank from initiating proceeding against the agricultural land. But the bank questions the jurisdiction of the Civil Court on the strength of Section 34 of the SARFAESI Act,

S.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 be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to the Banks and Financial Institution Act, 1993 (51 of 1993).

During the existence of this confusion amongst litigants and lawyers in which forum the initiation of proceedings against agricultural land has to be challenged the Honourable High Court of Kerala make a clarity in Thara Philip v. Federal Bank Ltd., Wayanad ₂that“the property mortgaged would come under the definition of ‘agricultural land’ coming under Section 31(i) of the SARFAESI Act is a disputed question of fact which is to be adjudicated by the Debts Recovery Tribunal having jurisdiction in the matter. The order passed by the Debts Recovery Tribunal is appealable before the DRAT, which is the final fact-finding authority.”

BURDEN AND PROCEDURE IF SARFAESI PROCEEDINGS ARE INITIATED AGAISNT AGRICULTURAL LAND

The burden of proving the proceedings are initiated against agricultural land is upon the petitioner/borrower itself and the Honourable Supreme Court in K.Sreedhar v. Raus Constructions (P) Ltd.₃ observed thus:

“...............When it was the case on behalf of the borrowers that in view of Section 31(i) of the SARFAESI Act, the properties were agricultural lands, the same were being exempted from the provisions of the SARFAESI Act, the burden was upon the borrower to prove that the secured properties were agricultural lands and actually being used as agricultural lands and/or agricultural activities were going on.”

Then arose the confusion at what stage onwards the proceedings to challenge SURFAESI proceedings needs to begin. Actual challenge begins once the borrower/party receives the demand notice under Section 13(2) of the SARFAESI Act, 2002 for repayment within 60 days of receipt of notice. The borrower has the opportunity to make any representation or to raise any objection under Section 13 (3A) within 15 days of receipt of notice under S.13(2) of the SARFAESI Act.

Section 13(3A) of the SARFAESI Act reads as follows:

S.13 (3A) - If, on receipt of the notice under sub-section (2), the borrower makes any representation or raises any objection, the secured creditor shall consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate[within fifteen days] of receipt of such representation or objection the reasons for non-acceptance of the representation or objection to the borrower:

Provided that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upon the borrower to prefer an application to the Debts Recovery Tribunal under section 17 or the Court of District Judge under Section 17A].

So in this representation or objection under Section 13 (3A) the party/borrower can also initiate the defence that the proceedings are initiated against agricultural land. On receipt of this representation or objection by the bank (secured creditor) on finding that the objection or representation is not acceptable or tenable needs to send a reply within 15 days to the borrower showcasing the reasons for non-acceptance of the representation or objection to the borrower. After which if the bank move on with Section 13(4) proceedings under the Act, then that can be challenged before the DRT under Section 17 of the Act by filing a Securitization Application (SA).

Section 17 of the SARFAESI Act reads thus:

“17. Application against measures to recover secured debts.-

(1) ……………….

(2) ……………..

(3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management or restoration of possession, of the secured assets to the borrower or other aggrieved person, it may, by order,—

(a) declare the recourse to any one or more measures referred to in sub-section (4) of section 1 taken by the secured creditor as invalid; and

(b) restore the possession of secured assets or management of secured assets to the borrower or such other aggrieved person, who has made an application under sub-section (1), as the case may be; and

(c) pass such other direction as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under sub-section (4) of Section 13.

(4) ………………………….

(5) ………………………..

(6) ………………………..

(7) ……………………….

Sub-section (3) of Section 17 of the SARFAESI Act gives ample power to the Tribunal to interfere with the measures taken by the banks and financial institutionsunder Section 13. Provision for an appeal to challenge the orders passed by the Debts Recovery Tribunal is also provided under Section 18 of the SARFAESI Act. Therefore, the SARFAESI Act is a complete code providing effective and efficacious remedy to any person aggrieved by the proceedings initiated under Section 13.₄

CONCLUSION

The question as to whether the land is agricultural is to be determined by the DRT. If SARFAESI proceedings are initiated against the agricultural land then the duty is cast upon the borrower to prove that the proceedings are initiated against agricultural land. Even though the Act says that the agricultural land are exempted from SARFAESI Act the hurdles to overcome to prove the same is not that easy. For a common man anywhere in Kerala for challenging the SARFAESI proceedings need to approach the DRT, which is located at Ernakulam. So, it is a not an easy task for a poor litigant, to challenge the SARFAESI proceedings even if initiated against agricultural land.

Foot Notes

1.  2018 (3) KLT OnLine 3041 (SC) = 2018 (18) SCC 252, (Para.9), AIR 2018 SC 3540, 2018 (4) KHC 86

2.  2023 (6) KLT 399, 2023 KHC 684, 2023 KHC OnLine 684, (Para 27)

3.  2023 KLT OnLine 1007 (SC) = 2023 SCCOnLine SC 13, 2023 KHC OnLine 6012 (Para 7.3)

4 . 2023 (6) KLT 399, 2023 KHC OnLine 684, Para 15.

Big Lawyers, Tiny Pay :
The Struggle of Junior Lawyers in Kerala

(By Akhil Ben, Advocate, Trivandrum)
E-mail : akhilben854@gmail.com       Mob.: 6282315526

I still remember the day I was enrolled into the Bar — a day brimming with excitement, pride, and a fierce hunger to conquer the legal world. I’m sure it felt the same for every law graduate driven by the passion to make a name for themselves. But there’s one thing from that day that’s stayed with me. During the enrollment ceremony, a well-known advocate stood before the crowd and told the parents, “You must understand that the first five years for any junior advocate is a learning phase, and it’s the parents’ responsibility to support them financially during this time.”

Back then, it sounded like wisdom. Now, it’s clear — it was nothing but the polite, packaged introduction to a system built on exploitation.

Most juniors work from 9.30 a.m. to 8 p.m., handling files, running errands, preparingnotes, sitting through court hearings and waiting endlessly, all for ₹1000 to ₹ 4500 a month. And on some months, nothing at all. The reason? “It’s court vacation.” As if rent, groceries, or basic dignity takes a vacation too.

The only thing a junior gets in return is a hollow title — “Oh, he/she’s that famous lawyer’s junior.” A name tag that won’t pay bills, won’t feed your family, and certainly won’t keep the lights on for a law graduate from a struggling background. This profession reeks of privilege. It’s tailor-made for those with financially sound parents who can bankroll them for the five years it takes to ‘settle’. Those who can’t ? They get swallowed by the system.

And let’s not even get started on stipends — because those aren’t coming. The real issue is how seniors treat their juniors. Some well-known names in the profession parade around courtrooms with 12 juniors in tow for a basic hearing just to flaunt their following, while paying them next to nothing. And god forbid a junior hints at taking up an independent case — instant shutdown. You’re expected to be loyal, broke, and grateful.

First-generation lawyers have it worse. Parents don’t understand why you complain about the pathetic pay because hey, “your senior is super famous.” You’re told to be patient, to learn, or better yet — quit and let a soulless corporate job drain the life out of you. And while juniors suffocate in cramped, dusty office holes with ancient fans barely spinning and no ventilation, the senior sits comfortably in an air-conditioned room, pocketing fortunes every week.

But hey – your senior’s famous no? This is not mentorship. This is exploitation. Until this mindset changes, this profession will continue to bleed out hardworking, talented lawyers from modest backgrounds, leaving it only for the privileged. And that’s not a profession built on justice — that’s a rigged system.

Comments on Saranga Anil Kumar Aggarval v.
Bhavesh Dirajlal Sheth Reported in 2025 KLT OnLine 1425 (SC)

(By Sajeer H.,Law Officer, Local Self Government Department, Principal Directorate,
                                                                                                   Thiruvananthapuram)
E-mail : advsajeer@gmail.com                                                              Mob.: 9447584730

In the captioned case the Hon’ble Apex court held that“the legislative intent behind the CP Act is to ensure compliance with consumer welfare measures, staying such penalties by the NCLT under Section 96 of the IBC would be contrary to public policy”.This is a significant judgment that brings relief to thousands of homebuyers who have invested their hard-earned money in homes purchased from errant builders and developers.

The facts of the case are that Saranga Anilkumar Aggarwal, (Hereafter called the appellant) engaged in real estate development and has several pending consumer complaints before the National Consumer Disputes Redressal Commission, filed by homebuyers alleging delay in possession, deficiency in service, and breach of contractual obligations. The NCDRC, in its final judgment, allowed the complaints and directed the appellant to complete construction, obtain the requisite occupancy certificate, and hand over possession. But the appellants turned hostile to the order of the National Commission. Hence it initiated steps against the appellants under Section 27 of the erstwhile Consumer Protection Act, 1986.

The appellants approached before the National Company Law Tribunal and moved an application under Section 95 of the Insolvency and Bankruptcy Code.The appellant seeks a stay on the penalty proceedings before the NCDRC, contending that an application under Section 95 of the Insolvency and Bankruptcy Code, 2016 (IBC) has been filed against them, triggering an interim moratorium under Section 96 of the Code.

The Supreme Court has considered as to whether execution proceedings under Section 27 of the Consumer Protection Act can be stayed during an interim moratorium under Section 96 of the IBC.

The Supreme Court has clarified that there is a clear distinction between punitive actions and criminal proceedings. A criminal proceeding is initiated by the State against an accused individual to establish guilt and impose penal consequences. In contrast, punitive actions within the regulatory framework, such as those imposed by the National Consumer Disputes Redressal Commission, are intended to ensure compliance with the law and to deter future violations.

According to Section 27 of the Consumer Protection Act, consumer fora have the authority to impose penalties to ensure adherence to consumer protection standards. These penalties do not arise from any “debt” owed to a creditor; rather, they stem from the failure to comply with the remedial mechanisms established under consumer law. Unlike criminal prosecutions, which require proof of mens rea (the intention to commit a crime), the penalties enforced by the NCDRC are regulatory in nature. Their primary aim is to protect the public interest rather than to punish criminal behavior.

It is important to differentiate between the moratorium applicable to corporate debtors under Section 14 of the Insolvency and Bankruptcy Code (IBC) and the interim moratorium for individuals and personal guarantors under Section 96 of the IBC. The moratorium under Section 14 is broader in scope, halting all proceedings against the corporate debtor, including execution and enforcement actions. In contrast, Section 96 is more limited, as it only stays “legal actions or proceedings concerning any debt.”

While corporate insolvency proceedings aim for a comprehensive resolution of a company’s liabilities, individual insolvency proceedings focus primarily on restructuring personal debts and providing relief to the debtor. It is important to respect the legislative intent to limit the scope of the interim moratorium under Section 96, as imposing a blanket stay on all regulatory penalties could undermine the objectives of consumer protection laws.

The moratorium established under Section 96 of the Insolvency and Bankruptcy Code (IBC) is designed to offer temporary relief to debtors by halting specific legal actions against them during the resolution process. However, this protection is not absolute and does not apply to all types of debts. The primary intention of the moratorium is to preserve the debtor’s assets for an efficient resolution process and to prevent creditors from taking unilateral actions that could undermine the objectives of insolvency proceedings. It is important to note that the statutory framework of the IBC specifies that the protection provided by the moratorium does not extend to all liabilities, particularly those classified as “excluded debts” under Section 79(15) of the IBC.

Section 96 of the Insolvency and Bankruptcy Code (IBC) does not apply to criminal proceedings under Section 27 of the Consumer Protection Act (CP Act).

Unlike civil recovery proceedings, which focus on enforcing debts, Section 27 of the CP Act serves a penal function by ensuring compliance with consumer rights and deterring non-compliance with forum orders. Regulatory and penal proceedings are distinct from civil claims and should not be halted due to insolvency moratoriums. Since Section 27 of the CP Act specifically prescribes imprisonment as a penalty for non-compliance, it cannot merely be regarded as a debt recovery mechanism and thus falls outside the scope of the IBC moratorium.

It is unfortunate that many individuals have been defrauded by unscrupulous builders and developers who have refused to hand over properties to homebuyers, even after accepting their hard-earned money. These homebuyers are often forced to approach consumer courts to enforce their rights. After a lengthy legal battle, they may finally receive a favorable ruling. However, during the execution of this ruling, builders frequently seek relief from the National Company Law Tribunal, which has the power to issue a stay on all further proceedings in various courts and tribunals. This blanket order subjects the vulnerable homebuyers to even more prolonged litigation.

Homebuyers, who have already endured significant delays and financial hardships, would be further deprived of relief. The legislative intent behind consumer protection laws is to safeguard the interests of consumers and ensure accountability from service providers. Allowing stays on regulatory penalties under the pretence of insolvency proceedings would undermine the very purpose of the Consumer Protection Act and encourage errant developers to evade their liabilities through such proceedings. Many homebuyers invest their life savings in purchasing residential units, putting them in a precarious situation due to delays in possession and breaches of contractual obligations. Staying penalties that act as a deterrent against unfair practices would render consumer protection mechanisms ineffective and erode trust in the regulatory framework.

The Apex Court in Pioneer Urban Land and Infrastructure Limited v. Union of India & Ors., reported in (2019 (3) KLT OnLine 3035 (SC) = (2019) 8 SCC 416) held that “RERA is to be read harmoniously with the code, as amended by the Amendment Act. It is only in the event of conflict that the Code will prevail over RERA. Remedies that are given to allottees of flat/apartments being in a position to avail of remedies under the Consumer Protection Act, 1986 RERA as well as the triggering of the Code”

 In Imperia’s Structures Ltd v. Anil Patni & Anr. reported in 2020 KLT OnLine 1120 (SC) a three-Judge Bench of the Apex Court held that “ it has consistently been held by this court that the remedies available under the provisions of the Consumer Protection Act are additional remedies over and above the other remedies including those made available under any special statutes and that availability of an alternate remedy is no bar in entertaining a complaint under the CP Act.

Hence, the judgment in Saranga Anil Kumar Aggarwal v. Bhuvanesh Dirajlal Sheth of the Apex Court has to prove its commitment to upholding the law and protecting the rights of the weak and downtrodden.