Dear Brothers and Sisters, Salaamun A’laikum. This note is basically the first Issue of ‘Laws Regarding Vested Property’ where I will be dealing with the key provisions of the relevant statutes that concern the list of vested properties and those who got temporary lease of the vested properties from the Government. There are debates going on about the purpose and outcome of the recently passed ‘Vested Property Release (Amendment) Act 2011 (passed on 28th November 2011). In our country we have enormous lands which have been possessed as vested properties and understanding the laws will be of greater importance.
However, for the time being we will focus on the substance of the relevant laws and I welcome every comment and question on this issue. Relevant Statutes: 1) Vested Property Release Act 2001 2) Vested Property Return (Amendment) Act 2002 3) Vested Property Return (Amendment) Act 2011 4) Vested Property Release Rules 2012 Recent Updates on Relevant Statutes: The parliament on 14th June, 2012 has passed a bill ‘Vested Property Release (Amendment) Bill 2012. Slight but significant changes are brought with this bill. To have a summary please visit: Key Provisions and Concise Commentary -List of vested property has to be made section 9(1) and (2) of 2001 Act amended by 4kha of 2011 Act.Schedule KA/KA List:.
Assets in the possession of government. Meaning, the assets mentioned under subsections NIYO(ঞ) and TA(ট) and TO (ত) of section 2 of 2001 act (please note that the subsection TO was added later on by section 2 GA of 2011 Act).Schedule KHA/KHA List:.
Assets under the authority of common people. Meaning, vested assets but has not been included within schedule KA. – Both lists have to be published through the Government Gazette section 9(1) of 2001 Act as amended by section 4KHA of 2011 Act – If not within the gazette of list KA or KHA, then it is not vested property section 9(6) of 2001 Act amended by 4GA of 2011 Act.If if no claim is made for the property after it has been entered into the list of returnable property or a claim is dismissed then the Government will become the owner of the property who can sale or dispose with the property in any way section 26 (1) of 2001 Act amended by section 12 of 2011 Act. Submission at the Courtroom The Stages of Civil Litigation – The relevant ADR (Alternate Dispute Resolution) Under The Code of Civil Procedure (CPC): Mandatory Mediation Process: No mandatory mediation process during the pre-trial stage except in case of family matters under the Muslim Family Law Ordinance 1961 and section 10 of the Family Courts Ordinance, 1985. Optional Mediation Process: Under section 89A of Code of Civil Procedure (CPC): The court may mediate except in the case of a suit under the Artha Ain 1990, after the filing of the written statement, in order to settle the dispute of the suit itself or refer the dispute to engaged pleaders of the parties or in case of no pleader, refer to a mediator from the panel prepared by District Judge under ss 10 of s89A. Optional Arbitration Process: Under section 89B of CPC: Upon application of the parties to settle the dispute through arbitration, at any stage of the proceeding, the Court can allow the withdrawal of the suit and then it will be settled in accordance with Salish Ain 2001.
Artha Rin Adalat Ain 2003
Under the Artha Rin Adalat Ain 2003: Optional Settlement Process: Under section 21(1) of Artha Rin Adalat Ain 2003 the court, if considers necessary, can call for a settlement conference after the filing of written statement. In this case the Court will be the chairman of the settlement conference Section 21(2) of Artha Rin Adalat Ain 2003 Optional Mediation Process: Under section 22(1) of Artha Rin Adalat Ain 2003 the court, if no action for settlement is taken under section 21, after the filing of written statement can send the matters to the parties or their advocates for mediation and meanwhile the proceedings will be stopped. However, if the parties apply to the court for mediation, then it becomes obligatory for the court to send the matter for mediation.End of Part 1 Issue 1. A Sample F I R I.
Through filing a First Information Report (FIR) in case of cognizable offence If an officer-in-charge receives information about any cognizable offence from any of the below four sources then he must record the same and this written record will be treated as FIR and a FIR number or PS (police station) case number will be given. The sources are: a) From an individual informant section 154 of Code of Criminal Procedure (CRPC) b) From any other source such as phone call or by the police themselves or hearsay (section 157 of CRPC) c) From a magistrate who sends an offence already taken in cognizance (cognizable or non-cognizable) to the police station for investigation and report section 155(3) and 156(3) and Regulation 245 of Bengal Police Regulation (PRB) 1943 d) From a magistrate who sends a complaint upon acceptance to a police station for inquiry (section 200 & 202 of CRPC) II. Criminal Case!
Second step: Reporting to the Magistrate In case of FIR: The original copy of the FIR has to be sent to the Magistrate through a police officer within 24 hours (section 157 of CRPC and regulation 246 of PRB 1943 (Volume-1). Upon receiving the FIR the case will be registered as a GR case. In case of CR case: After a case is registered as CR case then no further reporting to the magistrate as the case has been taken into cognizance.
In case of CRP case: After a case is registered as CRP case, then a report has to be given to the magistrate upon inquiry or investigation (see the third stage below). The Magistrate then can take the offence in cognizance if he sees reason for proceeding and the CRP case then turns to CR case. Third Step: Investigation Please note that, in case of a CR case there is no third stage (i.e. Only in case of FIR or CRP case there is investigation by the Police. However, this has to be understood by way of cognizable and non-cognizable offence. In case of cognizable offence: The police can investigate without the order of a Magistrate (section 156 CRPC) In case of non-cognizable offence: Order of a Magistrate is required (section 155 CRPC) Please note the followings: a) Investigation under CRPC: It has to be conducted by an IO (investigation officer) or anyone other than a Magistrate who has been authorised by a Magistrate for this purpose (section 173 CRPC). B) Investigation under Special Powers Act (SPA) 1974: Only an officer not below the rank of sub-inspector (SI) can investigate (section 27 of SPA).
He will report to the special tribunal which is the only body competent for this purpose. C) Maintaining case diary during investigation is mandatory for the investigating officer. D) Any person who is arrested during investigation has to be produced before a Magistrate if investigation cannot be completed within 24 hours of arrest. This is known as ‘forwarding’. In this case police may seek remand for the arrested person for more interrogation. Fourth Step: Final Report/ Charge Sheet For understanding this stage, please note the following: a) Final Report: Upon investigation if no case of the offence is found then the police gives final report. It essentially releases an accused from custody or discharge him on bail as no case of the offence allegedly committed has been found against him (section 173 CPRC, Regulations 275-277 of PRB).
Please note the following:. The magistrate can accept or reject the report. If he rejects the report he may order further investigation by the police (no new PS number is given). He can also order inquiry and examine the complainant and take the offence in cognizance. If he accepts the report then the informant being aggrieved can file a naraji petition. Here the Magistrate upon examining the petitioner/complainant can issue process upon the accused (i.e. Proceeding of a case will start then) or direct inquiry by any other Magistrate Syed Azharul Kabir v Syed Ehsan Kabir, 4 MLR (AD) 343 b) Charge Sheet: Upon investigation if any case of the offence is found then the police gives charge sheet by mentioning the name of those who have been formally charged for the offence.
It essentially recommends for prosecuting the offender (Regulations 272-274 of PRB). C) The final report or charge sheet has to be forwarded to the Magistrate empowered to take cognizance of the offence (section 173 of CRPC).End of Part 1 Issue I. Dear Brothers and Sisters, Salaamun A’laikum. History teaches us a lot. Indeed, it is rewarding for our conscious and consequently for our life in this earth and hereafter if we learn about the ‘Ruthless leaders’, ‘their atrocities/brutalities’ and ‘death’. I have put a list below about some notorious ruthless brutal leaders in history for you to learn about them and their consequence. Please note that this list is neither exclusive nor arranged according to hierarchy of brutality.
Leaders like Firaun, Nimrud, Abu Jahl, Abu Lahb, Musailamah Kazzab, Abdullah Ibn Ubai are surely ferocious and their death too is exemplary for us. Emperor hirohito Brutality/Violence/Savagery/Ferocity: When Japanese involvement in World War II is mentioned, the first thing that comes to our mind is the ‘Rape of Nanking’ a name given to a six week massacre of Chinese civilians by Japanese troops. This six week carnage claimed around 300,000 lives. 20,000 women from age 8 to 70 were raped before being put to death. Pregnant women weren’t even spared. Death: Duodenal Cancer and continuous internal bleeding. Saddam Hussein Identity: The fifth President of Iraq, serving in this capacity from 16 July 1979 until 9 April 2003.
Genghis Khan Brutality/Violence/Savagery/Ferocity: Genghis Khan, leader of the Mongol Empire, was infamous for his ruthless massacres of the defeated populations and he found much pleasure in other’s despair. The following quote which has been ascribed to him is enough to give us an idea of what a terror he must have been: “Happiness lies in conquering one’s enemies, in driving them in front of oneself, in taking their property, in savoring their despair, in outraging their wives and daughters”. Death: Supposedly killed by a princess. Idi Amin Dada Identity: The military dictator and third President of Uganda from 1971 to 1979.
Idi amin dada Brutality/Violence/Savagery/Ferocity: His solution to erase tribalism in Uganda was simple, murder the tribes. Over the years, Ugandans would disappear in the thousands, their mutilated bodies washing up on the shores of Lake Victoria. Besides being a murderer, he was also a cannibal, something which he was actually proud of. His dictatorship, which lasted till 1979, claimed 100,000 to 300,000 lives for which he never showed any remorse.
Death: Kidney failure. Pol Pot Identity: A Cambodian Maoist revolutionary who led the Khmer Rouge3 from 1963 until his death in 1998. From 1963 to 1981. Pol Pot Brutality/Violence/Savagery/Ferocity: former leader of political party ‘Khmer Rouge’ ruled Cambodia as Prime minister from 1976-1979 and in these 3 years his government claimed up to 3 million deaths! Being a communist himself, he wanted a communist future for Cambodia, therefore Buddhist monks, Western-educated intellectuals, educated people in general, people who had contact with Western countries, people who appeared to be intelligent (for example, individuals with glasses), the crippled and lame, and ethnic minorities became victims of his terror. He had special killing fields set up for mass execution of these people. Many also died due to forced labor, starvation and disease.
Death: Allegedly committed suicide. Ivan IV of Russia Identity: The first ruler of Russia to assume the title of Tsar in 1547. Ivan IV Brutality/Violence/Savagery/Ferocity: During his rule he built a wall around the city of Novgorod making its inhabitants prisoners in their own city. He did that because he thought that the chiefs of Novgorod were going to attack Poland.
But his viciousness did not stop here, everyday between 500 to 1000 people were gathered from the city and were tortured and killed infront of him and his son. He was also responsible for the miscarriage of his daughter-in-law, whom he physically abused for dressing up immodestly, and the death of his son, whom he accidentally struck with a pointed staff during the argument that preceded after his daughter-in-law’s miscarriage. Death: Poisoning. Vlad Tepes Identity: Prince of Wallachia, Romania (1431–1476) and three-time Ruler of Wallachia, Romania, ruling mainly from 1456 to 1462.
Vlad tepes Brutality/Violence/Savagery/Ferocity: The famous vampire character ‘Dracula’ was inspired by this evil prince of Wallachia, Romania who found immense pleasure in torturing people. Even though he used all forms of torture like burning, boiling, cutting off the limbs, mutilating sexual organs, driving nails in head and skinning etc, his most popular method or you could say his favorite one was impalement which is why he is also known as ‘Vlad the Impaler’. Death: Assassinated. Adolf Hitler Identity: He was chancellor of Germany from 1933 to 1945 and dictator of Nazi Germany from 1934 to 1945.
Adolf Hitler Brutality/Violence/Savagery/Ferocity: Leader of the Nazis, this German dictator was responsible for the Holocaust during the Second World War in which over 14 million people, including 6 million Jews were put to death through mass gassing, starvation and exhaustion and disease resulting from slave labor. Death squads were also formed to shoot Jews in masses. Besides the Jews, homosexuals, gypsies and hippies were also targeted during the Holocaust. Death: Committed suicide by shooting himself while simultaneously biting into a cyanide capsule. Josef Stalin Identity: The Premier of the Soviet Union from 6 May 1941 to 5 March 1953 and also ‘General Secretary of the Communist Party of the Soviet Union’s Central Committee’ from 1922 until his death in 1953. Joseph Stalin Brutality/Violence/Savagery/Ferocity: Believe it or not. Josef Stalin was actually worse than Hitler, whom until now we thought was the worst leader in history.
Stalin was the General Secretary of the Central Committee of the Communist Party of the Soviet Union from 1922 until his death in 1953, during which Ukraine suffered from a widespread famine. This famine which was caused by political and administrative decision rather than by some economic crisis is considered to be an act of genocide on the part of the government. Moreover, he ordered the execution of anyone who was considered as the enemy of the state. Around 10 to 60 million people lost their lives during his rule. Death: Either assassinated or had stroke. IN THE NAME OF ALLAH, THE ENTIRELY MERCIFUL, THE ESPECIALLY MERCIFUL Dear Brothers and Sisters, Salaamun A’laikum.
This time our Hero is none but the Great ‘Salah Ad Din Al Ayyoobi’ or ‘Saladin’ who bears numerous heroic sub-titles amongst which ‘Hero of the Battle of Hattin’ and ‘Liberator of Jerusalem from Crusaders’ are greatly appreciated. However, Brothers and Sisters, an aim of this series is to ignite the desire of learning about those luminaries, heroes and personalities of Islam who left a great legacy by contributing a lot to the history. So, just get a glimpse of Salah Ad-Deen and try to learn more. Salah Ad Deen Al Ayyoobi (Saladin) Salaahuddeen’s full name in Arabic was Salaah Ad-Deen Yoosuf bin Ayyoob, also called Al-Malik An-Naasir Salaah Ad-Deen Yoosuf I.
He was born in 1137/38 CE in Tikrit, Mesopotamia and died March 4, 1193, in Damascus. He later became the Muslim sultan of Egypt, Syria, Yemen, and Palestine, founder of the Ayyubid dynasty, and one of the most famous of Muslim heroes.
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In wars against the Christian crusaders, he achieved final success with the disciplined capture of Jerusalem (Oct. 2, 1187), ending its 88-year occupation by the Franks. The great Christian counterattack of the Third Crusade was then stalemated by his military genius. Salah Ad Din Salaahuddeen was born into a prominent Kurdish family. On the night of his birth, his father, Najm ad-Deen Ayyoob, gathered his family and moved to Aleppo, entering there the service of ‘Imaad ad-Deen Zanqi bin Al- Sunqur, the powerful Turkish governor in northern Syria. Growing up in Balbek and Damascus, Salaahuddeen was apparently an undistinguished youth, with a great taste for religious studies over military training.
His formal career began when he joined the staff of his uncle Asad ad-Deen Shirkuh, an important military commander under the Ameer Nuruddeen, who was the son and successor of Zanqi. During three military expeditions led by Shirkuh into Egypt to prevent its falling to the Latin-Christian (Frankish rulers of the states established by the First Crusade), a complex, three-way struggle developed between Amalric I, the Latin king of Jerusalem; Shawar, the powerful State Minister of the Egyptian Fatimid caliph; and Shirkuh. After Shirkuh’s death and order of Shawar’s assassination, Salaahuddeen was appointed both commander of the Syrian troops in Egypt and State Minister of the Fatimid Caliphate there in 1169, at the age of 31.
His relatively quick rise to power must be attributed to his own emerging talents. As State Minister of Egypt, he received the title king (Malik), although he was generally known as the sultan. Salaahuddeen’s position was further enhanced when, in 1171, he abolished the weak and unpopular Shiite Fatimid Caliphate, proclaimed a return to Sunni Islam in Egypt, and became the country’s sole ruler. Although he remained for a time, theoretically, a Governor for Nuruddeen, that relationship ended with the Syrian Ameer’s death in 1174. Using the rich agricultural possessions in Egypt as a financial base, Salaahuddeen soon moved into Syria with a small, but strictly disciplined, army to claim the regency on behalf of the young son of his former leader.
Soon, however, he abandoned this claim, and from 1174 until 1186 he zealously pursued a goal of uniting, under his own standard, all the Muslim territories of Syria, northern Mesopotamia, Palestine, and Egypt. This was accomplished by skillful diplomacy backed, when necessary, by the swift and resolute use of military force. Gradually, his reputation grew as a generous and virtuous but firm ruler, devoid of deception, lavishness, and cruelty. In contrast to the bitter dissension and intense rivalry that hampered the Muslims in their resistance to the crusaders, Salaahuddeen’s consistency of purpose induced them to rearm both physically and spiritually. Salaahuddeen’s every act was inspired by an intense and unwavering devotion to the idea of Jihaad against the Christian crusaders.
It was an essential part of his policy to encourage the growth and spread of Muslim religious institutions. He courted its scholars and preachers, founded colleges and mosques for their use, and commissioned them to write edifying works, especially on Jihaad itself. Through moral regeneration, which was a genuine part of his own way of life, he tried to re-create in his own realm some of the same zeal and enthusiasm that had proved so valuable to the first generations of Muslims when, five centuries before, they had conquered half of the known world. Salaahuddeen also succeeded in turning the military balance of power in his favor by uniting and disciplining a great number of unruly forces rather than employing new or improved military techniques. At last in 1187, he was able to throw his full strength into the struggle with equivalent armies to that of the Latin Crusader kingdom. On July 4, 1187, by the permission of Allaah, then by using his own good military sense and by a phenomenal lack of it on the part of his enemy, Salaahuddeen trapped and destroyed, in one blow, an exhausted and thirst-crazed army of crusaders at Hattin, near Tiberias in northern Palestine.
So great were the losses in the ranks of the crusaders in this one battle that the Muslims were quickly able to overrun nearly the entire Kingdom of Jerusalem. Acre, Toron, Beirut, Sidon, Nazareth, Caesarea, Nabulus, Jaffa (Yafo), and Ascalon (Ashqelon) fell within three months.
But Salaahuddeen’s crowning achievement and the most disastrous blow to the whole crusading movement came on Oct. 2, 1187, when Jerusalem, holy to both Muslims and Christians alike, surrendered to Salaahuddeen’s army after 88 years of being in the hands of the Franks. In stark contrast to the city’s conquest by the Christians, when blood flowed freely during the barbaric slaughter of its inhabitants, the Muslim reconquest was marked by the civilised and courteous behaviour of Salaahuddeen and his troops. Castle of Salah Ad Din His sudden success, which in 1189 saw the crusaders reduced to the occupation of only three cities, was, however, marred by his failure to capture Tyre, an almost unconquerable coastal fortress to which the scattered Christian survivors of the recent battles flocked. It was to be the rallying point of the Latin counterattack. Most probably, Salaahuddeen did not anticipate the European reaction to his capture of Jerusalem – an event that deeply shocked the West and to which it responded with a new call for a crusade. In addition to many great nobles and famous knights, this crusade, the third, brought the kings of three countries into the struggle.
The magnitude of the Christian effort and the lasting impression it made on contemporaries gave the name of Salaahuddeen, as their gallant and chivalrous enemy, an added luster that his military victories alone could never confer on him. The Crusade itself was long and exhausting and, despite the obvious, though at times impulsive, military genius of Richard I – the Lion-Heart – it achieved almost nothing. Longa conga disney channel.
Therein lies the greatest – but often unrecognised – achievement of Salaahuddeen. With tired and unwilling feudal levies, committed to fight only a limited season each year, his determined will enabled him to fight the greatest champions of Christendom to a draw.
The crusaders retained little more than a precarious foothold on the Levantine coast, and when King Richard left the Middle East in October 1192, the battle was over. Salaahuddeen withdrew to his capital in Damascus.
Soon, the long campaigning seasons and the endless hours in the saddle caught up with him, and he died. While his relatives were already scrambling for pieces of the empire, his friends found that the most powerful and most generous ruler in the Muslim world had not left enough money to pay for his own burial. Salaahuddeen’s family continued to rule over Egypt and neighboring lands as the Ayyubid dynasty, which succumbed to the Mamlooks in 1250.
At the end, dear brothers and sisters, our glorious history reveals the fact that the footsteps of our pious predecessors, their heroic endeavours leave momentum for us so that we can take lessons from them. Though Muslims are oppressed around the world now but it will not take too long for us to conquer the world and to establish the law of Qur’aan if Heroes like Salah Ad Din who are guided by Qur’aan and Sunnah bring forth the spirit once again from every corner of the world INSHALLAH. Brothers and Sisters, ALLAH has said in the Glorious Quraan: And We wished to do a favour to those who were weak (and oppressed) in the land, and to make them rulers and to make them the inheritors (Surah: Al-Qasas: Verse: 5). INSHALLAH, THE VICTORY WILL BE OURS. Jazakum ALLAHU khair. The End Note: Below are some links for you to know more about Salah Ad Din: 1) 2). ABU ALI IBN SINA (‘AVICENNA’) (980–1037) This time our Hero is Abū ʿAlī al-Ḥusayn ibn ʿAbd Allāh Ibn Sīnā better known as Avicenna in the West.
Ibn Sina’s contribution to philosophy and medicine was immense. He is the father of modern medicine and pioneer of aromatherapy. To this day, his philosophy continues to be influential, while his research in medicine remains standard teaching to a great extent. He was an outstanding philosopher and physician and in the West he was given the title ‘Prince of Physicians’. He influenced Christian scholarship and he had a significant influence on the thought of the great Jewish thinker Moses Maimonides (d. Ibn Sina was born in the small village of Afshanah near Bukhara in Western Uzbekistan.
His father was a commander in the nearby citadel. Bukhara, at the time, was a leading centre of Islamic learning under the Arabs and the Persian Samanid dynasty, and Ibn Sina’s family moved to this city when he was just a young boy. Ibn Sina was a precocious child, having memorised the Qur’an by the age of 10 and as a child was already familiar with many of the great works of Arabic literature. It is known from several authentic sources including Ibn Sina’s autobiography that by the age of 14 he knew more than his teachers and, by the age of 18, he had mastered a number of the sciences, including medicine which he claimed he had found easy. Apparently, at this young age, he had already begun practising his medical knowledge on trusting individuals. One such patient was a Samanid prince whom Ibn Sina succeeded in curing.
As a reward, the prince allowed Ibn Sina ready access to his considerable royal library so that Ibn Sina could pursue his own independent studies in law, medicine and metaphysics. He had something of a photographic memory for he had devoured the whole collection of works within eighteen months. In the course of these years he gained a thorough grasp of Metaphysics with the aid of a commentary by al-Farabi and he wrote his own book on philosophy when he was 21. Ibn Sina’s autobiography, a rare genre in itself at the time, was communicated to a close friend of his when he was 32 years old and offers an interesting insight into the mind of a young genius. As this example of his method of study illustrates: Whenever a perplexing problem confronted me or a middle term in a syllogism escaped me, I would repair to the mosque, there to pray and implore the All-Creator until the hidden was revealed and the difficult eased. Returning home I would at night set a lamp before me and engage in reading and writing. Whenever sleep or fatigue came near overcoming me, I would resort to drink until my strength was fully recovered.
Thereupon back to reading I would go. In case slumber did overtake me, I would go on in my sleep considering what I was considering before. In fact, many a problem was thus solved. Thus I continued until I had mastered the totality of sciences. My comprehension of them then at age 18 attained the limits of human possibility. All that I learned during that period is precisely what I know now (Al-Qifti, Ta’rikh al-Hukama, ed. By Julius Lippert (Leipzig, 1903), p.
Ibn Sīnā wrote on Earth sciences such as geology in The Book of Healing. While discussing the formation of mountains, he explained: Either they are the effects of upheavals of the crust of the earth, such as might occur during a violent earthquake, or they are the effect of water, which, cutting itself a new route, has denuded the valleys, the strata being of different kinds, some soft, some hard It would require a long period of time for all such changes to be accomplished, during which the mountains themselves might be somewhat diminished in size. (Stephen Toulmin and June Goodfield (1965), The Ancestry of Science: The Discovery of Time, p. 64, University of Chicago Press (cf.
'O you who have believed, fear ALLAH as He should be feared and do not die except as Muslims in submission to Him. And hold firmly to the rope of ALLAH all together and do not become divided. And remember the favor of ALLAH upon you - when you were enemies and He brought your hearts together and you became, by His favor, brothers. And you were on the edge of a pit of the Fire, and He saved you from it. Thus does ALLAH make clear to you His verses that you may be guided'.
(Surah: Aal-I-Imraan. Verse: 103-104).
1 nefsearch September 2012 Issue 3 INSOLVENCY IN NEPALI CONTEXT 2 2 nefsearch September 2012 INSOLVENCY IN NEPALI CONTEXT Nepal s first codified law, the Muluki Ain, was put into practice in It took the country a good 150 years after this to establish and enact the Insolvency Act in 2006, a step that is now considered to be a milestone in the process of modernizing commercial law in Nepal. Previously, bits and pieces of the laws that make up the Insolvency Act were scattered throughout various items of legislation. History The concept for the Insolvency Act originally began in 1853 with the establishment of the Personal Bankruptcy Law that stemmed from the Muluki Ain. However, due to flaws present in the act, the process for the new Insolvency Act started in 2002 with the aid of a technical assistance grant from the Asian Development Bank. A major shortcoming in the old regime was that it did not have any provisions for the reorganization of insolvent companies. As a result, companies facing financial difficulties had no alternative to liquidation.
Furthermore, the old law provided no qualifications for liquidators and there was no regulatory authority to supervise the insolvency proceedings. Apart from these major flaws in the old Act, the Judiciary also lacked an Insolvency Administrative Office.
The need for a unit devoted specifically to insolvency matters was soon seen as a major necessity. Today, the Act is based on the principle of one law, two systems and it covers laws for both liquidation and rescue and restructuring. Situation Report Since the inception of the Insolvency Act in 2063 (2006), very few companies have been willing to step forward and begin official insolvency proceedings. It is important to note that the Insolvency Act and its regulations were introduced at different times. The lack of synergy during this process has not helped the current predicament of companies that should be (but aren t) pursuing insolvency proceedings.
Without sufficient data on INSOLVENCY & LIQUIDATION What s the Difference? When a company enters liquidation, it enters a process of termination in which the company s assets are used to discharge it from its liabilities.
Insolvency occurs when an individual or company is unable to meet its financial obligations to its creditors or when a company s liabilities exceed its assets. Insolvency can lead to legal insolvency proceedings, the outcome of which can be restructuring, or liquidation. Insolvency proceedings do not necessitate liquidation. 3 Insolvency in Nepali Context 3 insolvency proceedings, it is difficult for experts and lawmakers to accurately discern solutions to persisting problems. The most prominent company to have begun proceedings is Nepal Development Bank.
The implementation of the Act in this case shows that the Act unsatisfactory. Even if companies do begin insolvency proceedings, their respective situations are bound to be complicated due to different legislations that clearly contradict each other, such as the contradictions between the Insolvency Act and the Banks and Financial Institutions Act (BAFIA). Clearly, conflicts such as these have created hurdles for all parties involved and require a court hearing to clarify which Act supersedes the other. Another major problem in insolvency proceedings is the belief that insolvency is the result of criminal acts by individuals or companies. However, the fact is that filing for insolvency is not necessarily the result of a criminal act. Because insolvency is perceived as a crime in Nepal, many companies that in principle should file for insolvency do not.
Another significant problem lies in the inadequate monitoring of companies by Company Registrar s Office (CRO) as a result many companies that should file for insolvency go unnoticed. These companies prefer to abandon operate rather than file for insolvency. Even though a few companies have filed for insolvency and are undergoing liquidation, the current situation, with respect to insolvency procedures is not ideal. A careful and thorough analysis of the shortcomings in the Insolvency Act is necessary so that a viable solution is found and applied effectively.
The key question we must ask is this: why are insolvent Nepali companies not coming forward to begin insolvency proceedings? Current Challenges The Insolvency Act needs to be refined before it reaches a standard that proves to be both efficient and effective. The push to reform the Act must come from the Nepali business community; unfortunately discussions on insolvency laws are avoided. Insolvency Practioners believe that there are three factors that lead to the insolvency of banks and financial institutions in Nepal - bad management, bad policy and bad luck, with bad management being the primary culprit. In the case of Nepal Development Bank insolvency resulted from an asset-liability mismatch. The main reason for this mismatch is related party lending, where the borrower is connected to the management, leading to fraudulent transactions.
Data from liquidated companies show that 26% suffered from poor supervision and the lack of a regulatory body, 20% had defective bank management, 11% were victims of political influence, and 15% fell to lending and fraud.ii A major shortcoming in the Insolvency Act is the number of contradictions it holds with other acts. There are contradictory three factors that lead to the insolvency of banks and financial institutions in Nepal - bad management, bad policy and bad luck, with bad management being the primary culprit. Clauses in the Banks and Financial Institutions Act (BAFIA) and the Insolvency Act. While BAFIA states that individual depositors will be the first recipients of any payout, the Insolvency Act states that employees and other liabilities will be the first. 2 As there is no supremacy of laws, it results in obvious conflicts partiesand confusion between parties before a court hearing to determine the procedure to be followed.
One of the reasons behind such gaps is the fact that the Act is based on the Insolvency Acts of other countries; it lacks flexibility and practicality required for the Nepali context. Since insolvency is not a readily accepted practice, it is very difficult to point out flaws.
The lack of practice also reveals other problems with the legal document and legal officials who deal with the process of insolvency. Due to a lack of practice, there is a shortage of both liquidators and judges who are trained and equipped to handle insolvency related cases.
Commercial laws are still a budding concept in Nepal and not all the judges in the Judicial System are educated on issues like insolvency and liquidation. Further aggravating this problem is a rule that reshuffles judges in a trial meaning 4 4 nefsearch September 2012 that one insolvency trial can have several judges. This has led to even further confusion and conflict. The success of the Insolvency Act will largely be dependent on how it is implemented.
There are certain positive steps being taken to ensure smoother insolvency procedures; lawyers and judges are being trained and a separate commercial bench has been created too. Still, there are very few companies that have filed for insolvency. This raises the question whether insolvency is unpopular due the stigma attached to it or because the process in itself is a hassle. The legal provision for insolvency is not discretionary and the measure of one-size fits all is creating problems with the liquidation of different types of companies. Another problem is the lack of public awareness. Misinformation creates major misunderstandings and gaps in knowledge. For example, the general public presumes that a bank audit is always bad news and in anticipation, can lead to unnecessary mass bank runs.
What a lot of people do not understand is that an unscheduled bank audit is completely normal and not always a cause for alarm. Additionally, companies fear being blacklisted when they are declared insolvent. Government and Regulator s Perspective Insolvency practitioners in Nepal have been expressing the need to smoothen the process of restructuring of insolvent companies.
Government officials and regulators have expressed similar views, Table 1: Country Profile Average time taken to resolve insolvency (yrs) urging that reforms be made to the current Insolvency Act to avoid future problems. Although the provision for blacklisted is meant to identify frauds and those associated with it, regulators are willing to consider waiving the provision of being blacklisted if companies willingly declare themselves insolvent. Nepal Rastra Bank (NRB) could also encourage troubled financial institutions to merge or be acquired by a stronger one instead of directly liquidating them. Country Profiles Nepal has shown significant improvement in regards to its procedures for insolvencies in the nation, but how exactly does Nepal fare in terms of the South Asian community? The three following country profiles provide a summary of the different procedures used by the respective countries.
Furthermore, there are flaws in their system that the Nepali Act must try to avoid as well as identify beneficial aspects of their laws that the Nepali Act should emulate. Sri Lanka The Sri Lankan procedures for insolvencies are largely similar to that of India 3 Sri Lanka 4 Bangladesh 5 South Asia Cost (% of estate) Recovery Rate (cents on the dollar) Nepal. The same issues recur with respect to financial transparency and bad accounting practices. However, there are a few notable exceptions that could be responsible for explaining Sri Lanka s above average performance in this particular area (in relation to South Asia). Sri Lanka currently ranks 42nd in the world in terms of resolving insolvencies, the time taken to resolve insolvencies is much less than the rest of South Asia, and the recovery rate (cents on the dollar) is much higher. Through reforms in 2007, the Sri Lankan government has sought to introduce a rescue culture into the business environment. They have done this by taking the model of British financial legislation.
7 Under Sri Lankan law, debtors that file for insolvency can go into administration. 8 Administration is a process in which the Board of Directors of the company can appoint an administrator to bring the company s head above water again. This reform has been said to give incentives to rescue companies rather than liquidate them, fostering the aforementioned rescue culture.
India Amongst South Asian countries, India 5 Insolvency in Nepali Context 5 The Nepali Act must do what Sri Lanka did when they passed their Companies Act in By passing this act, Sri Lanka identified a systemic problem and repaired it with a simple, progressive piece of legislation that fit neatly into their culture. And Nepal are the two exceptions where insolvency law reforms have not received the required attention and priority. 9 However, the Indian act has some laws that would benefit the Nepali act. The Indian insolvency act, more commonly known as the Provincial Insolvency Act, has provisions where the court can set aside some property to the insolvent so that he is able to support himself and his family. This means that if a person were to become insolvent, their assets would only be seized insofar that they could still house their family. Also, in order to avoid fraudulent behavior, the Indian court has the power to charge the creditor a fine of INR 1000 (NPR 1600 or USD 19.4) if the court feels that the charged petition was frivolous and false. 10 This fine is made to the debtor as a compensation for the injury caused to him and his company during the trial.
In order to maintain the debtor s security, the act also has a protection order. This is when the debtor, to keep himself clear of chances of imprisonment during the case, can file for a protection order. However, any creditor of his is entitled to appear and oppose the grant for a protection order without sufficient evidence as to why. Bangladesh Compared to the rest of South Asia, Bangladesh has not done well in terms of resolving insolvencies. Data given by the World Bank illustrates that Bangladesh is lagging behind in regional averages in almost every single category.
However, the Bangladeshi government has made attempts at reforms. The Artha Rin Adalat Act of 2003 sought to create separate courts for the speedy recovery of loans, but no mention has been made as to whether the Bangladeshi business culture seeks to rescue ailing companies or whether it favors asset recovery through liquidation.
Furthermore, it appears that the creation of separate courts for dealing with insolvency has neither made the process particularly speedy (in relation to the rest of South Asia), nor has it helped the recovery rate. Conclusion Given the three country profiles, Nepal must ask the question: What can we learn from our neighbors?
It is clear that the insolvency laws in India, Bangladesh and Sri Lanka are not perfect, but Nepal must learn what it can from them and adopt it in a framework that will suit the Nepali context. Perhaps the Nepali laws may need provisions, similar to that of the Bangladeshi laws for the creation of separate bankruptcy courts in order to speed up the entire insolvency process. An in-depth analysis should be done with regards to Sri Lanka and why they are faring so much better in this area than all other South Asian countries. The Nepali Act must do what Sri Lanka did when they passed their Companies Act in 2007 where Sri Lanka identified a systemic problem and repaired it with a simple, progressive piece of legislation that fit neatly into their culture. In the process of amending the Nepali system, some thought should be given to adopting some of the better provisions found in Indian insolvencies laws as these two respective national cultures are fairly similar. In order to find out what provisions can be adopted from these respective neighbors, more research is needed to ascertain the positive aspects found in each country s insolvency practices.
We must also be vigilant in researching the areas in which their insolvency laws have failed, so that we do not repeat their mistakes. On the other hand, the principal goal must be failings make the process of insolvency more efficient and molding laws to fit Nepali culture. 6 6 nefsearch September 2012 OUTLOOK The immediate future, with respect to the process of insolvency, in Nepal seems to be full of hurdles and confusions. Reforms have previously been either excruciatingly slow or nonexistent. This has been further exacerbated by the CA s recent failure to ratify a constitution, thus throwing Nepal s political future up in the air. With such political volatility, it is not a great surprise that reforms have not been passed. Owing to these conditions, the legislation (and its implementation and regulation) is inconsistent as well.
In order to combat these failings, swift actions must be taken by the private and public sectors. The process of insolvency can only be made more efficient through progressive reforms of the existing Insolvency Act. In order to make progressive reforms, one must review and update laws constantly; an update once every decade will not suffice. Reforms must be made in legislation and in the Nepali business culture. The following points are aspects of legislation and business culture that must be reformed: needs to be raised in order to help all parties understand the existing legal framework and overcome misunderstandings. Remove the many ambiguities that are currently present.
Practioners in matters of insolvency are paramount to the success of any insolvency laws. To be present at all times. This will help keep rulings on the case consistent and it should also make the process smoother for all parties involved. Company on a routine basis to prevent fraudulent actions and behavior. Furthermore, internal management should also be subjected to random audits.
Process so as to identify companies that need to file for insolvency. Facing insolvency. Essary to identify frauds, should be removed with regards to voluntary declarations of insolvency. It may be a step in the right direction to break the stigma regarding insolvency proceedings.
Updating insolvency laws to fit the contemporary climate of the country. Laws need to be progressive; if they are static, they will simply be ineffective. Even though it has only been tested a few times and there are some positive steps being taken to make the implementation more efficient, the Insolvency Act Nepalmust be progressively updated. A rescue culture, much like the one fostered in a rapidly growing Sri Lanka, must be encouraged. This may help preserve failing businesses and institutions. The rescue of companies can be beneficial for all parties:- the creditors may, in the long-term, regain the value of the amount they lent and debtors could have another shot at prospering.
A solid, progressive and contemporary legal framework for insolvency proceedings is in the best interest of every Nepali, should they land on either side of the procedure. 7 Insolvency in Nepali Context 7 ENDNOTES 1. Bharat Raj Upreti, Latest Trends and Developments in the insolvency law in Nepal (paper presented at the Fifth Forum for Asian Insolvency Reform (FAIR), Beijing, China, April 27-28, 2006).
Ministry of Commerce and Supplies, Government of Nepal, Insolvency Act, 2063 (4th November 2006), English/insolvency-act.pdf. Ease of Doing Business in India, last modified 2012, 4. Ease of Doing Business in Sri Lanka, last modified 2012, 5. Ease of Doing Business in Bangladesh, last modified 2012, doingbusiness.org/data/exploreeconomies/bangladesh#resolving-insolvency. Resolving Insolvency, last modified 2012, data/exploretopics/resolving-insolvency.
Kandiah Neelakandan, Restructuring Companies in Sri Lanka (paper presented at the LAWAISA Conference, New Delhi, India, November 12-14, 2010) The Department of the Registrar of Companies, Government of Sri Lanka, Companies Act, c21be7d8/$FILE/Act%207%20of%202007%20(English).pdf 9. Sumant Batra, Insolvency laws in South Asia: Recent Trends and Developments (paper presented at the Fifth Forum for Asian Insolvency Reform (FAIR), Beijing, China, April 27-28, 2006). Ministry of Corporate Affairs, Government of India, Provincial Insolvency Act, This nefsearch is based on the research and analysis carried out by the nefsearch team. It also incorporates the proceedings of the neftalk Insolvency in Nepali Context, a talk program jointly organized by Nepal Insolvency Practitioners Association (NIPA) and Nepal Economic Forum (NEF) on 02 May NIPA is an association of professionals committed to creating awareness in the field of insolvency. The keynote speakers at the neftalk were Justice Bharat Upreti, Judge, Supreme Court, Bhesh Raj Sharma, Secretary, Ministry of Law and Justice, Maha Prasad Adhikary, Deputy Governor, Nepal Rastra Bank and Narayan Bajaj, Liquidator, Nepal Development Bank and Member, NIPA.
8 Issue 4, September 2012 I Publisher: Nepal Economic Forum I P. Box 7025, Krishna Galli, Lalitpur-3, Nepal I Phone: nefsearch team: Akrit Sharma, Shayasta Tuladhar, Shreyansh Malla, Shristi Singh Design: Big Stone Medium.
Disputes are a fact of life. Means Alternative Dispute Resolution, mostly applied to civil cases. When a civil case is instituted in a court of competent jurisdiction, the scenario usually is, that a long time is taken to serve the process, the defendants beat the law and submit their written statement/s after a long delay beyond the permissible statutory period of two months, lawyers and judges do not take any interest in screening out a false and frivolous case at the first hearing of the case under rder! '#' $in fact no such first hearing takes place%, they seldom try to shorten the disputed &uestions of fact and law by application of rders!' ' of the '#' and mostly ignore the elaborate procedure of discovery, interrogatories, notice to produce etc. Contained in those rders, the issues of a case are seldom framed following the 'ode of 'ivil #rocedure, the case takes several years to reach a settlement date and on the date of positive hearing half a do(en or more ready cases are fi)ed for hearing, resulting in the hearing of none.
't delivers formal justice and it is oblivious of the sufferings and woos of litigants, of their waste of money, time and energy and of their engagement in unproductive activities, sometimes for decades.ost of us who are or were in the judiciary and were or are practicing in the +ar think that nothing can be done about it, or, at least, we have no role to play in the matter, either individually or collectively. We are drifting into a stage of aimlessness, inertia, inaction and helplessness.any conscientious judges and lawyers have done what they could under the circumstances, but their sincerity has been drowned into the general morass of malfunctioning of the court system. Alternative Dispute Resolution refers to the means of settling disputes without going through legal procedures.
Artha Rin Adalat Ain 2003 English Version Pdf
hrough ADR settlement of disputes can be done in many formal and informal ways but here ADR emphasis is mainly on the settlement of disputes by local community initiatives. 't is an age-old tradition of society through which disputes are resolved amicably and wh ic h co nc er ne d pa rt ie s ac ce pt. o rm al ly au th or it y do es no t ch al le ng e it. 't is no t ins tit uti onal i(e d, but bot h the com mun ity mem ber s and the dis put ant s acce pt it.
he re are different ways to resolve disputes. ome are resolved formally, others informally, and some are resolved as time passes b y. Alternative dispute resolution system in civil justice delivery system in +angladesh is closing the hostility between the disputing parties and restoration of harmony. 'n this system a high degree of pub lic par tic ipa tio n and co- ord inat ion is badl y nee ded. A gen eral sen se of sat isf act ion develops which helps in enforcement of the decision, when people1s participation is ensured as to tendin g eviden ce, aski ng &uesti ons and makin g opinio ns. hus the reconcilia tion can be eased, which is the funda mental objective of ADR system.
Ortho Rin Adalat Ain 2003 Bd
Or the first time in our legal system the provision with regard to ADR has been introduced by amending the 'ode of 'ivil #rocedure. 'n chapter A/=+ of '#', the ADR system $mediation and arbitration% has been introduced, the two terms?mediation1 and?arbitration1. ection =A lays down that e)cept in a suit under the Art ha Rin Adalat A in, 5@ $Act. No: of 5@% after filing of written statement, if all the contesting parties are in attendance in the court in person or by their respective pleaders, the court many by adjourning the hearing, mediate in. Order to settle the dispute or disputes in the suit or refer the dispute or disputes in the suit to the engaged pleaders of the parties, or the party or parties, where no pleader or pleaders have been engaged, or to a mediator form the panel as may be prepared by the District udge under subse ction 5@, for undertaking effort s for settleme nt throu gh mediat ion. imilarly, the term?settlement conference1 has been used to denote mediation process in the part.
+y he 'ode of 'ivil #rocedure $Amendment% Act, 7@@9 two new sections were incorporated $sect ion =A, =+% in the code. 't empowers the court to solve the matter through mediat ion or conciliation before the beginning of the trial e)cept case under Artha Rin Adalat Ain. Bowever there remain some limitat ions too, it will not e)empt the disputant parties from the appearance before the court. his law is only relating to t he pending cases, he 'ivil #rocedure 'ode $Amendment% Act, 7@@7 has been enacted to introduce Alternative Dispute Resolution $ADR% system for early and consensual disposal of civil suits. ection =A and =+ have been inserted to allow parties to settle their disputes in suits, through mediation or arbit ratio n.
'n the mediation procedur e, the court may take initiat ive to settl e the dispute in the suit by itself or by making reference to independent mediators. 0nder section =+ parties will be allowed to withdraw pending suits and have those settled through arbitration.
he provisions have been made effective from 5st uly 7@@9. ADR system is gaining popularity. his procedure will help to reduce the huge backlogs of civil cases in courts. #ublic confidence in the judiciary will thereby increase. Access to justice will be e)panded. he provisions will also help develop a new culture of consensual settlement of disputes doing away with the e)isting adversarial procedure. 't will help protect and preserve cohesion and fraternity in society.
f the mediator here the advocate or any other person may be hired for mediation. 'n our legal system, money lent by financial institutions/banks to individuals, private limited companies, public limited companies, corporations, partnership firms, societies, co-operatives, proprietorship firms etc. When due for default, is realised through money suits, suits for foreclosure, mortgage by instituting the same to competent civil courts. he civil courts were burdened with other businesses and such suits of banks consumed time for disposing of. he delay caused made the bank sector suffer for non-realisation of dues in time and the bankers gather ed bitte r e)peri ence in reali sing the same. o remove this difficu lty, the governm ent enacted a special piece of legislation named 8he Artha Rin Adalat Ain, 5@3 which had gone.