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Is the relief provided to the really aggrieved under SARFAESI Act, 2002 effective
I had the privilege of appearing in some cases under SARFAESI Act, 2002 both for the Banks and also for the debtors/guarantors. No citizen is allowed to say that they will take loan, execute documents and will not repay the loan to the Bank taking advantage of technicalities and the delay the process in Traditional Courts. As such, though the legislature has felt it necessary to enact a special legislation allowing the Banks to speed-up their recovery process and though the issue of Constitutional validity of the Debt Recovery Laws were challenged, the Apex Court has laudably held that the special enactments meant for speedy recovery or recovery of loan by the Banks are valid though certain observations were made pertaining to certain provisions of the Act. However, under the guise of special law, the rights of the ordinary people should not be ignored and the rights of the people/innocent owners are to be protected at any cost.Under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short "SARFAESI Act"), the Bank can proceed with the recovery process and proceed with the property mortgaged as a security without recourse to traditional Civil Courts. Its true that the Bank may not be able to recover the money from the debtor or it may get unreasonably delayed if they have to approach the Civil Courts for recovery and consequential steps. Many know as to what happens in Civil Courts and many know as to how to delay a Civil Case for so many years. Under SARFAESI Act, 2002, the Bank itself determines the amount of debt when there is a default and proceeds with the property mortgaged in accordance with the provisions of the Act and the concerned regulations. The Bank makes a demand for payment, receives the reply if any, addresses the grievance of the debtor if required and if it is not satisfied with the reply, then, accordingly, the Bank proceeds with auctioning the property in accordance with law and thereby quickens the recovery process. Thus, the object of SARFAESI Act is really laudable if the law is implemented in letter and spirit. But, when there is a clear violation of statutory provisions or when the Bank proceeds against a property unreasonably using the provisions of SARFAESI Act, 2002, then, there should be effective remedy available to the innocent owner of the property. It is true that the Act itself provides a relief to the aggrieved to file an appeal challenging the steps taken by the Bank pursuant to the notice issued by the Bank under section 13 (2) of the SARFAESI Act, 2002, however, many feels that the remedy is not effective despite establishing a clear case against the Banks in many cases. It is also seen that the Debt Recovery Tribunal constituted under the Act which deals with the grievance of the aggrieved, passes conditional order many times while granting stay. It is true that in some peculiar cases, a conditional order can be passed, but, it has become routine as I have seen and heard from my colleagues at the Bar. What can an innocent owner do when he is not provided with an effective remedy against the Bank? He may hesitate to approach the High Court directly as many legal practitioners advice the aggrieved to approach Tribunal as it is likely that the High Court may not entertain a Writ Petition directly and in many cases such Writ Petitions are disposed giving liberty to the aggrieved to approach the Tribunal. It is really understandable and in such cases, the Debt Recovery Tribunal should really be effective and should not invite any criticism, but, everyone knows as to what happens in Debt Recovery Tribunals and Appellate Tribunals. Some presiding officers of the Debt Recovery Tribunals may adopt a different and right approach, but, every legal practitioner can tell or guess as to what happens before the Tribunal. There may be cases where the debtors may try to delay the recovery process by filing cases and nobody sympathizes in those cases and those cases to be dealt with very strictly.
It can not be said that the provisions of the special legislation to be implemented in letter and spirit without thinking at the consequences and it can not be said that the ultimate object of the enactment is to be taken into consideration while dealing with the cases challenging the action initiated by the Bank under SARFAESI Act, 2002. For example, with a very laudable object, the Chapter-XVII was introduced in Negotiable Instruments Act, 1881 making the act of dishonour of cheque an ‘offence' though civil remedy is also available for recovery of money. Section 139 of the N.I.Act says that there would be presumption available in favour of the Complainant that the cheque is issued for discharging a legally enforceable debt. Despite such clear wording and special provisions dealing even with the procedure in cheque bouncing cases, the Courts have interpreted the provisions from time to time protecting the rights of the innocent and providing protection to the innocent against motivated harassment using the special law. As such, the rights of the innocent or the innocent owners or the debtors are to be protected under SARFAESI Act, 2002 and the remedy should really be effective and adjudication to be really logical. I have seen a wonderful judgment of a bench of Madras High Court comprising Hon'ble Mr.Justice F.M.Ibrahim Kalifulla & Justice N.Kirubakaran in W.P. No. 15272 of 2009. It was a case where the High Court has taken a serious view of procedural irregularities committed by the Bank using the provisions of SARFAESI Act and provided an instant relief to the aggrieved.
The Law Relating to Transfer of Shares
The stock market has become the backbone of many economies in the world. Unfortunately, those who are engaged in such markets know little or nothing on the that regulate their trading. One of the very critical areas that every investor must know is the laws that govern the transfer of shares by a company and also individuals. There is a distinction between transfer of shares and the transmission of shares. A transfer is by the act of the member of a company, while transmission occurs byoperation of the law on the death or the bankruptcy of a member.Every shareholder has a right to transfer his or her shares unless otherwise provided in the articles. As per the companies Act, "it is provided that the shares in a company under these Acts shall be capable of being transferred in a manner provided by the regulations of the company. Such regulations of the company may impose restraints upon the right of transfer...."
However, the directors of a company may, in their absolute discretion and without assigning any reason therefore, refuse to register any transfer of share. In such a case, the court may not interfere with the transfer unless one shows that the directors are exercising their discretion improperly.
A forged transfer of shares is a nullity and cannot affect the title of the shareholder whose signature is forged. If the company therefore has registered the forged transfer and removed the true owner of the rights from the register, it can be compelled to replace him.
Why You Should Fight Speeding Ticket Carefully
Most people try to fight speeding ticket fines by all sorts of means: that is a fact. For instance, one major argument is that the police officer did not agree to show the radar reading. Well, there is no law that says he / she has to. Moreover, a radar reading will not necessarily convince you that you were exceeding speed limits; the reading could very well be from another car, and you have no means to tell the difference, not on the spot at least. There is another trick here that may not help you fight speeding ticket penalties: what if you were shown the reading? The officer could very well put this aspect down in the papers with the mention that you “agreed” with the charge.One other argument people bring when they fight speeding ticket penalties is that the police officer was rude to them. Normally speaking, he or she has no right to mistreat you; however, if you didn't watch in the rear mirror and he or she had to follow you for several miles before pulling you over, chances are that he or she will be fuming. Even so, you should be treated decently; yet, if you want to file a complaint it is better not to do it before you appear in court. The details of the day when you were stopped may also help you fight speeding ticket charges more easily.
If the police officer did not write everything in his / her papers, chances are that you will face less difficulties when you fight speeding ticket charges in court. In case there is not much written about your breaking the traffic rules, and you can also get a delay for the court hearing, it is most probable that the officer will not remember the case very well, since they stop dozens of cars every day. Time is therefore working to your advantage.
There are other legal escape doors for people who fight speeding ticket penalties in court. For instance, it is good to know whether the radar was located on private or public property. In case it was on private property your speeding ticket would be legal only if the police officer had a written consent from the owner of the property. Yet, certain laws are not always applicable to police officers that are following suspects, since they are in the performance of their legal duties.
Industrial Waste Water Management
Water is one of the invaluable natural resources and is affected a lot by industrial waste and pollution. Heavy metals and other miscellaneous substances are often passed into the water that is used during manufacturing processes. This water is then discarded and enters the reserves of natural water supplies. As a result of this, the water that we use for our daily needs becomes more and more contaminated and human beings are put more at risk for things such as water-borne diseases and so on. Industries that generate a lot of waste water need to be mindful of the severe impact that this has on the environment.It is also important to remember that even though water may be released into the ground as opposed to a water body, it still has the potential to cause great harm. Contaminated water that enters the ground may eventually lead to the contamination of crops and the de-fertilisation of farm land.
There are however, many processes that can be initiated to combat waste water from entering natural water supplies. Some of these processes include having filtration systems and processes that remove the most harmful substances form the water before it is discarded.
Certificates of Status for Ontario Companies
Ontario Certificates of Status are issued by the Ontario government for Ontario companies. Sometimes these are called Certificates of Good Standing or Certificates of Compliance and all companies registered in all jurisdictions in Canada and for that matter all countries can obtain these certificates when needed. They are called Certificates of Status in Ontario.Certificates of Status are issued when you need to provide some institution or person with confirmation that your Ontario company is in good standing.
When a Certificate of Status is issued it will say on it whether the company is or is not in good standing. Since the Ontario annual return filing is normally done at the same time as the tax returns are filed in a section of the form, if you are behind in filing your tax returns you will also be behind in filing your Ontario annual returns.
The Certificate of Status for an Ontario company will provide the name of the company, the Ontario corporation number issued by the Ministry of Government Services and its status whether it is or is not in good standing.
Ontario companies must file federal tax returns each year and if those returns are not filed for many years the federal government will eventually dissolve the Ontario company. If the registered office address of the Company is current on file you will be provided with warning from them that tax returns are due.
Ontario companies must file Ontario annual returns each year and if those returns are not filed for a number of years the company will be dissolved. You can file your Ontario annual returns separately just to ensure that your record is up-to-date so that you will not be dissolved by the Companies Branch for non-filing if you feel that you need more time in order to file your federal returns.
It is very expensive to revive a company and the Ontario government puts the onus on the companies themselves to follow the statute requirements. It will not remind you that you have not filed your Ontario annual returns. Any reputable Canadian search house will be able to check for you to see that your annual returns have been filed but there is a cost for this. You will need to order what is called an Ontario List of Documents for your company. If it is determined that you need to file annual returns this can be done easily by a legal search house and then a favourable Certificate of Status can be issued.
The government does not refund the money if the Certificate of Status cannot be issued. Basically it will issue a Certificate of Status that indicates the Ontario company is not in compliance and you will then need to file any outstanding returns and order a new Certificate of Status. A Certificate of Status is not cheap so if you know in advance you have not made your filings you should at the least ensure all Ontario annual returns are filed before ordering your Certificate of Status. If you have some outstanding tax returns but have not been dissolved then you will still receive a favourable Certificate of Status as long as your annual returns have been filed with the Ontario Companies Branch. Basically if too many years go by without filing your federal tax returns the Canada Revenue Agency requests the Ontario Companies Branch to dissolve your company.
A Certificate of Status is not an Ontario corporate search. If you are trying to determine information about an Ontario company you should have an Ontario Corporate Profile search done rather than ordering a Certificate of Status.
What Qualifies For A Job Harassment Lawsuit In New York?
Knowing what behaviors can be considered harassment in New York is important in establishing and maintaining a work environment where all employees feel safe. Managers and employers should have the capability to tell illegal harassment from inappropriate (but not unlawful) behavior in order to take the appropriate disciplinary actions quickly without having to go through any other responses that do not fit the offense.Law is defined as undesirable physical or verbal conduct that creates a hostile work environment. When the behavior is directed at a legally protected characteristic, such as gender, age, race, religion or sexual orientation, and adversely affects the normal operations of an employees work and workplace, it can be considered New York harassment. Harassment can describe a wide range of behaviors from abusive language intended to force someone to quit to actual physical violence.
Anyone working in New York can be the target of harassment: male or female, young or old, blue-collar or white-collar, absolutely anyone. The same can be said of the identity of the offender: He or she could be a boss, supervisor, co-employee, vendor, or even a visitor. If seeing someone else being harassed makes you feel your workplace is hostile, you can be considered a victim even though you are not the direct target of the behavior.
Not All Offensive Workplace Behavior Is Job Harassment
For a behavior to be considered harassment it has to:
•Be unwelcome
•Be directed at a protected characteristic or class (such as gender or religion)
•Adversely affect employees' work performance
•Create a hostile work environment
Minor teasing, isolated incidents or even prejudices that do not affect an employees status are not considered harassment as defined by law. Improper actions and behaviors that are not subject to legal action should be addressed by the companies policies on inappropriate behavior. On top of the protection harassment laws afford workers, just and fair company policies that are strictly implemented give employees an increased feeling of safety and security.
What You Should Know About Hipaa and Hipaa Compliance
HIPAA stands for Health Insurance Portability and Accountability Act. It is a federal law enacted in 1996 as an attempt at incremental health care reform and experts consider it to be the most significant health care legislation since Medicare in 1965.HIPAA's intent is to reform the healthcare industry by reducing costs, simplifying administrative processes and burdens, and improving privacy and security of patient's information.
There are two separate and distinct laws that fall under the HIPAA umbrella: HIPAA Privacy and HIPAA Security. HIPAA Privacy relates to the protection and privacy of individuals' protected health information (PHI) while HIPAA security relates to the protection and privacy of individuals' protected health information in electronic form (ePHI). HIPAA Privacy is what most of us think about when we hear the term HIPAA ( HIPAA Awareness Training, Notice of Privacy Practices, Authorization forms, etc )whereas HIPAA Security tends to be more the focus of an organization's IT department because it deals with encryption, electronic security, disaster recovery, etc.
Do you have to worry about HIPAA? There are two main classifications under HIPAA: Covered Entities and Business Associates. Covered Entities are those types of organizations/individuals that deal directly with protected health information and consist of healthcare providers, health insurance providers, and employer sponsored group health plans. Anyone outside of those categories is considered a business associate. Business associates include medical billing companies, medical storage, marketing organizations, software companies, medical device manufacturers, etc.
While the DHHS (Department of Health and Human Services) regulates covered entities, business associates are regulated by the covered entities they work with through a business associate agreement (alternatively called business associate contract).
HIPAA compliance involves two main components: one being HIPAA training of employees and the other implementing processes, procedures, and forms related to HIPAA.
While alot of regulations in HIPAA may seem like common sense, think of them as just providing some level of standardization so an individual and the organizations involved in their care can know what to expect of each other.
HIPAA compliance does not have to be a complicated process and once setup, can be relatively little effort to maintain.
10 Questions to ask Before Starting Your C-SOX Compliance Project
As industrial technology continues to grow and benefit our lives, it important to simultaneously recognise and remedy the impact that the technology in question has on the environment. Any process that leads to the creation of a product or a service also generates a certain amount of by-products and industrial waste. Oftentimes, this industrial waste is terribly harmful for the environment and leads to a rise in pollution levels and health hazards. As such, most nations have issued a strict set of laws pertaining to the generation and management of industrial waste. This has been done in order to ensure that the sanctity of the environment and the earth is maintained for all the future generations to come. The penalties for not conforming to these laws are very harsh and could even result in the closure of your business or organisation.Therefore, it is critical to ensure that these laws are followed to the letter and all the processes associated with your company are in compliance with regulatory norms. Complying with environmental norms will also help your organisation to develop a good eco-friendly image and result in a positive perception amongstthe general public.
How to Beat a Speeding Ticket
When caught red-handed for breaking the law in traffic, who wouldn't like to get without any penalty at all? There are a few things you can try in order to get away without a fine, but there are no rules to teach you how to beat a speeding ticket for instance. There are a few dos and don'ts that you should consider before the officer signs and sends the report; first of all you need to work at the attitude: don't get angry or sarcastic, keep your voice calm and be as nice as you can.Show the officer that you are a nice person to deal with, make a good impression, different from what he / she may expect from a “supposed criminal”. Depending on the officer's reactions to your behavior you may follow your instinct in order to know how to beat a speeding ticket. Sometimes a few nice words and a total submission to the authority will do to get you out of the crisis with a clean record.
When you are stopped by the police more than once, you almost get to follow a pattern about how to beat a speeding ticket; nevertheless, tricks don't always work, sometimes you may have to pay the penalty and be more careful next time. Or you can support your case in court and plead “not guilty”; there have been plenty of cases when people managed to get away without a fine after convincing the judge of the truthfulness of their case.
Ask the officer some questions about the way the radar caught you. Do not insist if he / she refuses to show you the radar record. The best thing to do after getting a fine is not to learn how to beat a speeding ticket but how to stay out of trouble for the future. Going to court over and over again just to plead “not guilty” especially when you are definitely guilty is a waste of time.
There are people who would make very daring moves in order to win in the attempt to escape a fine. In their case the question is not how to beat a speeding ticket but how to avoid getting a criminal record. Some will try to get delays, and use the time to convince either the officer or the prosecutor of their innocence or atoning circumstances. Some people would even go to the extent of writing to the mayor or bringing the case into public debate
The Importance of the Whistleblower Mechanism
Corporate governance in China is improving. One of the drivers behind this is a new government regulation called the Basic Standard for Enterprise Internal Control (aka China SOX or C-SOX). China SOX is primarily a risk management regulation that aims to improve internal control and prevent corporate fraud. One of the less-discussed areas of the C-SOX regulation is the requirement that companies in China must set up whistleblower mechanisms for fraud alert.This is quite a new concept in corporate China (which has been rocked by corporate scandals too numerous to count), so I will outline some key requirements and considerations for getting it right. The purpose of a whistleblower mechanism to alert the company to risks, fraud or corruption and it is an important part of a enterprise risk management framework. Employees can report misdeeds, suspicious activities or fraud to management.
A fraud reporting mechanism to protect whistleblowers must have the following attributes to be effective:
-Anonymous reporting. For employees to feel safe in bringing suspicious, illegal, corrupt or overly-risky information to company management, they must be able to do so anonymously. The process will not be effective if employees have to identify themselves to make a report.
-Multiple avenues of reporting. Employees should be able to “blow the whistle” by telephone, email or web form. Companies should outsource the telephone service to a third-party provider so has a detailed script to cover with anyone who calls the fraud hotline. Email should also go to an external mailbox and be encrypted to remove information about the sender. Finally, a online web form should allow for anonymous reporting (these are usually linked from a company’s intranet or are on a private website).
-No recourse. Even if the whistleblower is identified (publicly or privately) the company should have a strong policy of no recourse or repercussions against the individual. This helps to create a culture of openness and transparency (which are the main drivers of China SOX). If employees feel that their career or personal safety may be compromised by bringing information to management, they will not do so and the company (and its stakeholders) will suffer as a result.
-Action taken. Importantly, companies adopting China SOX must take action for all reports of misdeeds or corruption that come in. This includes a thorough investigation, dealing with the problem, and making sure controls are in place to prevent any future issues.
This requirement in China SOX mirrors similar whistleblower protection laws in the United States and other countries. These are now widely implemented in most organizations and have been effective in both deterring and dealing with corporate misconduct.
In conclusion, I would like to point out that reasonable suspicion of misconduct is a good reason for someone to “blow the whistle.” However, abuse of the fraud reporting mechanism (i.e. personal vendettas or reporting without and evidence) should be treated strictly and strongly discouraged. Companies that are trying to be compliant with the Basic Standard for Enterprise Internal Control should therefore conduct broad training and education campaigns to support enterprise risk management, fraud awareness and the intended uses of the whistleblower mechanism
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