• Appeal against dismissal of writ petition

I Had Applied For a Term Loan Plus Working Capital Loan From A Public Sector Bank As Per Provisions Of ‘Credit Guarantee Scheme For Medium Small Entrepreneurs’ (cgtmse) Bank is entrusted by cgtmse to disburse loan as per specified concessionary terms by cgtmse then in case of default by borrower (myself) the CGtmse takes guarantee to pay 75% of the loan amount. Bank agreed to grant me loan as per CGTMSE terms. Bank granted me term loan. But did not grant working capital and the business could not be started. Bank asked for additional security ( against provisions of CGTMSE) for working capital loan. I submitted security but bank did not grant working capital because I was termed as defaulter then for failing to repay three installments of term loan. Bank informed other lenders that since I have taken term loan from them therefore I cannot borrow from anybody else. My investment of more than 120 lacs is rendered idle and unproductive for last ten years because of lack of working capital. And even the objectives of the CGTMSE ( Public policy of govt of India) have been foiled by deliberate acts of . Bank Bank informed cgtmse that it had disbursed loan as per its terms and claimed guarantee amount from them. Thus the bank has committed offense u/405 punishable as per 409 of IPC. I reported to police commissioner. They did not take cognizance. Then I filed a writ petition citing lalita Kumari Vs U.P.GOVT (AIR 2014 SC 187)AND ASHOK SADARANGANI VS UNION OF INDIA( AIR 2012 SC 1563). Then police informed me that it is a civil matter and therefore no action can be taken by them. I pleaded relying on citation of Ashok Sadagarani that the civil liability is different from criminal one and therefore they should register a FIR. They did not. ( the mention of offence u/420 for obtaining guarantee amount by misrepresentation is left out inadvertently)
The high court refused to give directions to police to register my case on the basis of an OLD Judgment of the Apex Court in Sakiri Vasu vs. State of Uttar Pradesh and Others (2008) SCC 409 relegating the Petitioner to the alternate remedy available in law. 
Meanwhile the DRT without taking the violations of loan agreement and fraud of the bank has issued a recovery certificate to bank for recovering the amount to pay CGTMSE, which bank has obtained by misrepresentation and fraud and thus knowingly aiding the fraud committed by the bank.
Please suggest how to proceed. How to Appeal against the order in writ petition. And how to implicate DRT for knowingly aiding bank in its criminal offenses. (I am unable to afford a reasonable fee for an appropriate advocate therefore I have been pursuing matter as party in person)
Asked 4 years ago in Criminal Law
Religion: Hindu

First answer received in 30 minutes.

Lawyers are available now to answer your questions.

11 Answers

1.Yes,if there is efficacious and alternative remedy is available then the high court doe snotossue prerogative writ.

2.if the Police did not register FIR then you should have filed petition u/s 156(3) CRPC fordirection upon police to register FIR.

3. If the police still sits idle then file writ petiiton agaisnt police inaction. For non registration of FIR the high court does not issue Mandamus.

4. So instead of preferring an appeal I would strongly recommend you to file petition before the CJM under section 156(3) crpc and then writ petition seeking report on progress of investigation.

5. Preferring an appeal in all likelihood is to meet same fate as that of the writ petiiton.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

See the alternative remedy for FIR first is to send a return complaint to SP I.e. by virtue of section 154(3), a written Complaint may be send by Post to the Superintendent of Police or the Commissioner of Police (in Metropolitan areas); If Superintendent of Police or the Commissioner of Police (in Metropolitan areas) if he does not take cognizance then

By 156(3) read with section 190 of Code of Criminal Procedure to a judicial Magistrate/ Metropolitan Magistrate thereby praying that police to register the FIR., investigate the case, file charge-sheet or report.

So you may proceed as high court directed to seek alternate remedy.

You don't need to appeal order.of hc for registring fIR just use.altermarive.remedy file before a magistrate.

Further the DRT order.can be challange before.DRAT on 30 days from date of.recipt.of order. And a stay in recovery can be taken till the appeal is heard by DRAT.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

A writ petition is filed in the High Court or Supreme Court for enforcement of fundamental and statutory rights of a person. In addition, a writ petition can not be filed in a court below the rank of a High Court.

An appeal is a petition in which a party challenges the order passed by a subordinate court before the higher court. In some cases appeal lie directly in the Supreme Court. Like the appeal in TADA cases used to go directly to Supreme Court and not to the High Court.

A writ petition can be filed directly in the High Court or Supreme Court but in case of an appeal the court of lowest rank has to first decide the issue and only after the decision is taken, the appeal can be filed.

A writ petition can be filed by any party totally unrelated to the issue but in case of an appeal, the right to file an appeal lies only with the person who is a party in the original case. No third person, unless affected by the order of the court, can file an appeal in general.

What is the procedure for filing writ as petitioner in person before a high court.

There are various types of writs that can be filed in the high court under section 226 of the Indian Constitution. Choose the right one before you proceed further.

The following steps should be followed to file a writ petition:

The very first step is ascertaining whether the cause of action is remedial by the issue of a writ.

The aggrieved person needs to file a petition with the help of a lawyer or by himself annexing all the documents necessary, affidavit and the prayer.

This petition will be filed in the filing counter of the respective High Court and a future date for consideration of the matter will be given.

On this date the lawyer or the person himself can plead the matter, the High Court has the power to accept or dismiss the petition.

If the court admits the petition, then a notice is sent to the opposite party and another date of hearing is given by the Court.

On the date of hearing the contents are settled and the Court grants relief as it finds appropriate.

Important points to remember:-

If the petition is dismissed, no fresh petition can be filed on the same cause of action.

It is advisable that the aggrieved party consult a lawyer and let the lawyer file the petition with his expertise.

In case of a Habeas Corpus petition, the petition can be filed by a simple application of the aggrieved.

The procedure for filing a writ application before a high court is rather simple.

You have to apply in a simple format prescribed by the respective high and append the copies of the documents you wish to rely on to substantiate your case.

The high court ordinarily hears you before issue of notice to the opposite parties.

On return of the completed service report on notice, the court hears both the parties and takes a decision on what orders are to be Page on passed. As regards the fees, it is subjective and no yard stick can be prescribed.

Thirdly, you can always seek the support of the alternative disputes resolution for a available.

They even provide free legal defence if you are incapable of appointing a lawyer to present your case.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

No complaint is maintainable against DRT

2) it has not abetted in commission of any criminal offence

3) if you are aggrieved by HC order regarding refusal to direct Police to register FIR file appeal before SC

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

your analysis is not correct

DRT has passed orders after considering evidence on record

if you are aggrieved by order you can appeal before DRAT against order passed by DRT

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

See DRT order shall fall under the judicial adjudication in good faith though the appealt authority may see is as bad in law but such kind of allegations cannot be leveled the DRT have passed said order on application of mind and material on record so you should challange order instead leveling allegation and dragging DRT in the proceeding. Because there was no fir filled no.action.against bank or any document on record.as such you.should refrain from making allegation against drt.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

It will be not as judicial adjudication but still you make appeal to that order before DRAT.

The filing an appeal before DRAT as against an order passed in DRT?

Under sub-section (3) of section 20, of the The Recovery of Debts Due to Banks and Financial Institutions Act, 1993, an Appeal has to be filed within 45 days from the date on which a copy of the order aggrieved has been passed or deemed to have been passed by the Tribunal is received.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

1) I do agree with you that DRT is supporting for Bank's ALL lies comments. Anyhow Sir, you have chance to appeal in DRAT, what order has been passed by DRT.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

Please suggest how to proceed. How to Appeal against the order in writ petition.

You may prefer an appeal against the decision on writ petition, no doubt it may not be maintainable

And how to implicate DRT for knowingly aiding bank in its criminal offenses. (I am unable to afford a reasonable fee for an appropriate advocate therefore I have been pursuing matter as party in person)

By preferring an appeal against DRT before DRAT

T Kalaiselvan
Advocate, Vellore
78107 Answers
1543 Consultations

5.0 on 5.0

since DRT despite being aware that the amount to be recovered is for repayment of amount obtained by committing offence u/405 and misrepresentation and fraud , u/420, therefore the DRT is aiding the offence and fraudulent transaction for causing loss to me , foiling government objectives and unjust enrichment as well.. it cannot termed as judicial adjudication in good faith. would that be correct.

You have misunderstood the provisions in law due which all such types of the society.

What is your advocate telling about this

T Kalaiselvan
Advocate, Vellore
78107 Answers
1543 Consultations

5.0 on 5.0

You have to file SLP in supreme court for the same and take directions in the same

Prashant Nayak
Advocate, Mumbai
27275 Answers
88 Consultations

4.4 on 5.0

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer