Valuers’ Idemnity Bond

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Imposition of Indemnity bond, IB, on engineer valuers and drastic reduction of fee for valuations run against the fundamental rights guarenteed under Articles 14,19,21 of the Constitution of India. And it is interesting to note that existing Panel valuers are not intimated individually about the notification by post or by mail. If one is ignorant of the notification he would lose the opportunity to renew his license and then he would have to wait for another 3 to 5 years to get re-empanelled again. (PL visit my other pages on the same subject matter by clicking on the following links)

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In spite of the fact that performance of an Engineer Valuer is reviewed every year by the Banks, and necessary renewal of empanelment of Valuers is effected regularly, several Banks have been in the practice of subjecting existing Empanelled Valuers to the rigors of applying afresh at the intervals of 3 to 5 years. A paper notification would be issued by the respective Banks inviting applications from aspiring candidates for empanelment as Valuers for Immovable Properties for fresh candidates. Then there will be one or two lines which state that existing valuers also must apply again for continuance of their services.

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Anyway the profession of Engineer Valuers is going on as usual. Because rules of empanelment were same. But, problems have started for Valuers of Immovable properties with the introduction of certain new rules for empanelment of Valuers.

Banks are arguing that one who is averse or who do not accept these new conditions of the new rules can opt out and need not apply for empanelment. This argument may be reasonable to the fresh applicants. But application of new rules to the existing valuers is arbitrary, and detrimental to the interests of the existing Valuers of the Bank.

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First fall out of this condition of signing of the Indemnity Bond is that the society would brand engineer valuers community as a Fraudsters gang because Banks are taking Indemnity Bonds from Engineers valuers only not from any other service provides – Chartered Accountants, Advocates, and not from the loan sanctioning authorities – Field Officers of the bank, Branch Managers of the Bank, etc.

Branding Engineer Valuers as fraudsters as claimed in Affidavit submitted by the SBI in Mumbai High Court would have far reaching consequences for the Engineer Valuer community in the society. And there is a danger of Engineer Valuers getting lynched by depositors of the bank for Closing down of a Bank, if any.

Having done LLB I have some knowledge of Legal procedures. Let me tell you that in the legal parlance there is a term which is used while taking up a case by the court. It is PRESUMPTION. For example, a person signs a Promissory note and the Promisor fails to pay the loan taken from the lender then court presumes that the Promisor has taken the money from the Promissee. If the promisor fails to prove otherwise he has to pay the amount as mentioned in the Promissory note.

In the same fashion an Engineer Valuer who sings the Indemnity Bond is PRESUMED to have had benefited monetarily from the loan transaction, otherwise why he would sign the Indemnity Bond voluntarily? So the Valuer is presumed by the court to have an inherent obligation to make good the loss occurred to the Bank due to the failure of the Loanee to repay the loan amounts whatever may be the reason. And thus Engineer Valuer becomes a de facto Guarantor for the Bank against the loan given by the Bank to a person or entity who are in fact third persons for the Engineer Valuers.

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Defensive arguments by engineer valuers, after they were booked, that Engineer has nothing to do with the loan amount and he has only furnished the Market value report by taking a paltry sum of Rs. 2000/- or Rs. 3000/-, as fee, etc won’t help the Valuer in a legal battle. It takes about 5 or 10 years to decide the case by Courts. But there is no guarantee that Engineer Valuer would be exonerated at the end of the case. Because there is Indemnity Bond on the face of the Valuer which binds the Valuer individually and severally. That means in all practicalities Engineer valuer stands as a Guarantor against the loan. It is everyone’s knowledge that Indemnity Bond taken from Engineer valuer is Invalid under law. But that would be said by the court after engineer’s suffering for 10 to 20 years.

Actually there would be so many people who contribute their services to the Bank before a loan is sanctioned and disbursed. To quote a few, Chartered Accountants, Legal Advisors, Bank Officials, Tehsildars who issue Income certificates. Income Tax authorities who issue Income Tax certificates, etc.

Then question arises why Bank is taking Indemnity Bond from Engineer Valuer only leaving the others free. This will lead to another presumption that Engineer Valuers are inherently corrupt and their Valuation reports are unreliable. So once a case is filed against the Engineer Valuer there is no possibility of extricating himself from the charges because of the PRESUMPTION factor.

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So through this process of taking Indemnity bond Banks are making Engineer Valuer a scapegoat deliberately using its fiduciary power.

Then why many a Valuer signed the Indemnity Bond in spite of the fact some High courts have stayed the Implementation of the Indemnity Bond against the Valuers? Simple reason is that the valuers as a common men are dependent on the Valuers profession for their livelihood, some for decades. They cannot take the risk of losing their livelihood all of sudden.

However, there is hope in the horizon, there are signals from the Banks that they may dispense with the Indemnity Bond and the issue would be discussed in the next meeting on policy matters of the Banks.

So taking this opportunity for good, we have to represent our grievances properly and precisely to get the anomalies rectified in our favour.

How can we represent our problems unless we know what are our problems and what are the remedies available for us?

This is my sincere effort to bring forth the point that imposition of Indemnity Bond is contradictory to the Constitutional safeguards granted to the Citizens of India.

Three Articles, viz., 14, 19 and 21 of the Constitution of India are mentioned in the petition filed in the Bombay High court. But SBI succeeded in getting the petition quashed by making serious allegations against Engineer Valuers. SBI argued that Indemnity Bond is necessary to check mal functioning of Engineer Valuers. And alleged that Engineer Valuers are whole and sole responsible for the NPAs in all the Banks in India!

However, the petitioners’ at Bombay High Court failure doesn’t mean that these Articles 14, 19 21 are not useful for us. We have to know that simple mentioning of some provisions in a court of law won’t suffice to get justice.

Let us know what happens in a Court if a person files a suit. Let us say a plaint or suit or criminal complaint or a writ petition is filed in a court by the Justice seeker, who is called as a litigant/plaintiff/complainant. Against whom the petition is files are called as Respondents/Accused as the case may be. Then the respondents are given opportunity to submit their objections to the suit. Then ISSUES of contention are framed and the trial is carried based on these ISSUES only. No new issues can be added in between in ordinary circumstances. That may be reason for dismissing interlocutory petitions by the Bombay High Court. And another aspect is that IF the papers which have been submitted as evidences during trial are not marked the court will not consider contents of these documents while giving final judgment. Another most important aspect is that despite all the happenings during trial if the respective counsel fails to raise the points of his concern during Arguments those points would be lost to the air.

So it is very important to note that winning or losing a case depends on the Capabilities and commitment of the Advocate. Not simply based on the law points that are mentioned in the petitions.

So we have to understand that Courts are just Law courts and not Courts of Justice. They are called as simply “Courts of Judicature” to let us know that Courts are there to pronounce Judgments based on Laws of the Land, not based on faith and belief systems or personal and social justice norms. So whoever wants to win a case should lead the case in accordance with the Civil Procedure codes and also as provided for in relevant Laws like Constitution of India and or in our case Indian Contract Act. Etc. And another important thing is that in a Trial Court the documents and witnesses are examined, in the District court legal aspects will be verified. In high courts basic law and constitutional law are verified during appeals. In our cases High courts are acting as trial courts and also verifying the Constitutional aspects vested on it by Article 226 of the constitution of India.

Now let us examine how Indemnity Bond and Lowering of fee structure for the job of valuation contravene Articles 14, 19 and 21 of the Constitution of India. (To know how these issues contravene with Indian Contract act pl click on the following link and read the article)

Article 19 of the Constitution of India

This article deals with the certain fundamental Freedoms granted to the Citizens of India. Among these, freedom to practice any profession and to carry on any Occupation, Trade will be discussed here. Governments often argue that these freedoms are not absolute and Parliament can impose certain restrictions in the interest of the Nation and in the interest of the Public also. But some court judgments pronounced that the law itself cannot be taken away in the name of restrictions.

IN our case the practice of empanelling the existing valuers along with the fresh applicants and asking the existing valuers also to agree for accepting the new norms is against the safeguards provided for in the Constitution of India under Article 19. Because as per the argument of the Bank, if the Existing Engineer valuers feel that the new rules undermine their financial and individual safety they can choose not to apply for continuation of their empanelment.

But fear of sudden loss of income and livelihood, if they opt out, act as compelling force to sign the Bond by the existing Engineer valuers. Banks are taking advantage and making them to stand as guarantors for unrelated people and their businesses virtually making them scapegoats. Telangana High Court commented the law as Draconian.

But signing of the Indemnity Bond jeopardizing their lives under the threat of booking them in case the loan falls bad which is beyond their control. Loan recovery job is vested with the Branch Manager. Actually this is a certain case of making Engineers scapegoats for the fault of others.

And it is the primary duty of the Bank (Branch Manager) to assess the repayment capacity of the prospective loanee and of the business prospects. And title of the Property is certified by the Advocate. Some times respective documents are obtained from Tehsildar or Municipal authorities etc. to check the genuinity of the documents. And whether to accept the Valuation Report from an Engineer or not and to take second Valuation report from another empanelled valuer are several options open to the Branch Manager in case he feels the Valuation Report issued by an Engineer is not proper or the valuation is on higher side. As per Valuation Standards rules in case Bank is not satisfied with the Valuation report it has to send the Valuation report asking the Engineer for explanation within 45 days. Once it is not questioned and the Valuation report accepted Engineer’s responsibility ends there.

But this Indemnity Bond is binding the Engineer forcing him to act as a guarantor in perpetuity against failure of loan recovery by the Bank officials, against the sanction of loan to wrong persons and for wrong purposes, against the failure of accountants in the assessment of the business prospects, against the failure of Legal advisor to find faults with the title of the property, against the loanee ‘s businees failures and so on. This is all for the sin of taking a fee of Rs. 2500/- for issuing a Valuation Report by the Engineer.

And actually the Branch Manager counter signs the Valuation report of Engineer Valuer endorsing the Market value at the end of the Valuation Report. Then and there itself responsibility of the Engineer valuer ends. But this Indemnity Bond considers the Engineer valuer as Guarantor in perpetuity.

Forcing Engineer valuer to agree for inappropriate and illegal Indemnity Bond imposed under the threat of losing the profession is against the fundamental rights guaranteed under Article 19 of the Constitution of India.

Article 21

Article 21, according to this article, “No person shall be deprived of his life or personal liberty except according to procedure established by law”.

So it is very important for us to know meanings of the words ‘LIFE’ and ‘PERSONAL LIBERTY’ in legal terms.

And there may be restrictions to this right but in accordance of the Law. And the law should not be arbitrary and oppressive.

Supreme court in one case decided that “Right to Life includes Right to live with Dignity”. So that ‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing. It does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to live with human dignity, right to livelihood, right to health, right to pollution free air, etc.

In our case Indemnity Bond dissuades Engineers from continuing in the Job of Valuer with dignity, and if Engineer Valuer fails to accept the condition of signing IB, he will lose his profession and as a consequence he will lose his livelihood. So Indemnity Bond runs against the Article 21 of the Constitution of India.

Banks through their affidavit in Bombay high court were trying to through all the blame on Engineer Valuers alone in order to justify the imposition of the draconian law of Indemnity Bond. They have shown one example in which a Valuer allegedly gave exaggerated Market value. It is absurd to ask all engineer valuers across India to sign Indemnity Bond by citing a single example of inflated valuation. Recently crores of money is discovered by Anti Corruption sleuths at a house of State Govt Treasury official. Should Govt ask all Treasury officials to attend police station every week and place their signatures?

Regarding the overvaluation incident cited in the Affidavit submitted by the Bank in Bombay HIgh Court it is later found that the Valuation report furnished by the Valuer was not meant for SBI and it is also not in the SBI format. And later it is claimed by the Engineer valuer that he was given clean chit by the Court. Whatever may be the truth, giving higher valuations by Valuers in condemnable. Banks should verify the authenticity of the Valuation before accepting such Valuations. And actually as per procedure Branch Manager accepts the Valuation report before sanctioning the Loan. Some other important aspects also will be verified by Branch Manager like financial credibility of the prospective loanee, his income, socio economic status etc. Hence, blaming Engineers and making them scapegoats, through Indemnity bond, to cover up the lapses in the Bank is illegal and malafide.

And branding and vilifying the Engineer valuers by this way will erode the dignity of the Engineer Valuers in the eyes of the society. Why we study engineering with great hardships. To lead a dignified life. This kind accusations by the Banks defeat the very purpose of Engineers’ striving for a good and dignified life. Hence, this is against the Article 21 of the Constitution of India.

Right to Reputation

Supreme Court of India in the case of Kiran Bedi & Ors vs Committee of Inquiry & Anr on 4 January, 1989 held that “good reputation was an element of personal security and was protected by the Constitution, equally with the right to the enjoyment of life, liberty, and property. The court affirmed that the right to enjoyment of private reputation was of ancient origin and was necessary to a human being in the society.”

And in the case of State Of Maharashtra vs Public Concern For Governance … on 4 January, 2007, Supreme Court of Indiaheld that good reputation was an element of personal security and was protected by the constitution, equally with the right to the enjoyment of life, liberty, and property.

It has been held that this right equally covers the reputation of a person during and after his death. Thus, any wrong action of the state or agencies that sullies the reputation of a virtuous person would certainly come under the scope of Art. 21.

Vilification of Engineer valuers in this way and making his life miserable for no fault of his is against the rights guaranteed especially the Right to live with Dignity and Right to preserve one’s reputation under Article 21 invariably.

And another angle is right to Privacy. This attitude of vilification of Engineer valuers in the society contradicts the right to privacy granted through the Article 21 of the Constitution of India.

In R. Rajagopal vs State Of T.N on 7 October, 1994, The right to privacy of citizens was dealt with by the Supreme Court in the following terms:

“(1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a ‘right to be let alone’. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the above matters without his consent – whether truthful or otherwise and whether laudatory or critical.

Filing of the Affidavit accusing all the Engineer valuers community as a fraudulent people erodes the good reputation and also the privacy of the person.

And in the beginning of the discussion on Articles 14,19 and 21 we have come across the issue of restrictions to be imposed by the authorities through due process of law on the rights guarenteed in the Constitution to an individual. But dilution of these rights have some limits and they shall be done by the Government or Parliament or Assembly so as not to take away the rights itself.

PROCEDURE ESTABLISHED BY LAW, due process of law

In the case of Maneka Gandhi vs Union Of India on 25 January, 1978,, the Supreme Court observed that the procedure prescribed by law for depriving a person of his life and personal liberty must be “right, just and fair” and not “arbitrary, fanciful and oppressive,” otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.

Accordingly procedure adopted to harm the interests of Engineer valuers by the Banks by bringing in Indemnity Bond like rules is neither right nor just nor fair but apparently arbitrary and oppressive.

Oppressive in two ways. First thing is that Engineer Valuers are forced to work for Rs. 20/- per one lakh value of the property instead of the prevailing and prescribed fee of Rs. 125/- per lakh. This Rs. 125/- per lakh fee is the prescribed fee as sanctioned by the Wealth Tax act and CBDT also. Now it is changed to Rs. 20/- per lakh of the Value of the property. Take for example, if a property is valued for Rs. 40 Lakh then a fee of Rs. 5,000/- is paid earlier. Now Rs. 800/- will be paid. And if the property is say Rs. 1.50 crore earlier the fee is limited to Rs. 10,000/-. Now according to the Rs. 20/- norm engineer would be paid Rs. 3000/- only. Then Valuer profession would become an un-viable profession economically for engineers. This fact would act as dissuading factor for engineers to continue as Valuers. Leading to loss of livelihood for the existing valuers.

It is not only astonishing to observe the facts that on the one hand Valuation fee is reduced for engineers as if he is a Chattel. And on the other hand, banks are claiming that Banks conduct their business based on the Valuation reports issued by Engineers. Ironically Banks instead of rewarding the Engineers is trying to punish them by eroding their human dignity by reducing the fee and asking the Indemnity bond by accusing and branding them as fraudsters.

This is multipronged attack on Engineers by the Banks. Banks are treating empanelled valuers as chattels and intending to make them scapegoats. Actually it is an attack on the Registered Valuers of Income Tax Department, because no Valuer can become Bank Valuer unless he is Registered with Income Tax dept under Wealth Tax act, 1957. It is very unfortunate that Banks are resorting to brand Wealth Tax valuers listed with the Govt of India as fraudsters like this.

As a consequence of this move now onwards (with Indemnity Bond given by the Engineer valuer in hand) other individuals like Accountants, Advocates, Bank officials and of course the Loanees would be free to commit any fraud and get away with it. As the news of this Guarantee / IB given by Engineers spreads in the public people who are enthused to defraud Banks will increase and Engineers would be put to greatest risk.

One way, this can be called as exploitation of engineer valuer’s need of employment. And it is against the right to life and livelihood granted under Article 21.

Right to life includes right to Live with Human Dignity.

In the case of Maneka Gandhi vs Union Of India on 25 January, 1978, the Supreme Court gave a new dimension to Art. 21 and held that the right to live is not merely a physical right but includes within its ambit the right to live with human dignity. Elaborating the same view, the Court in the case of Francis Coralie Mullin vs The Administrator, Union … on 13 January, 1981, observed that:

“The right to live includes the right to live with human dignity and all that goes along with it, viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings and must include the right to basic necessities the basic necessities of life and also the right to carry on functions and activities as constitute the bare minimum expression of human self.”

Another broad formulation of the theme of life to dignity is to be found in Supreme Court of India Bandhua Mukti Morcha vs Union Of India & Others on 16 December, 1983

. Characterizing Art. 21 as the heart of fundamental rights, the Court gave it an expanded interpretation. Bhagwati J. observed:

“It is the fundamental right of everyone in this country… to live with human dignity free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief.

“These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central Government nor any State Government-has the right to take any action which will deprive a person of the enjoyment of these basic essentials.

Following the above-stated cases, the Supreme Court in Supreme Court of India. People’S Union for Democratic … vs Union Of India & Others on 18 September, 1982, held that non-payment of minimum wages to the workers employed in various Asiad Projects in Delhi was a denial to them of their right to live with basic human dignity and violative of Article 21 of the Constitution.

Drastic FIVE FOLD reduction of Fee for Valuation reports is nothing but depriving the Engineer valuer of his right to life and right to have basic needs of life and also includes denial of human dignity for him.

Bhagwati J. held that rights and benefits conferred on workmen employed by a contractor under various labor laws are clearly intended to ensure basic human dignity to workmen. He held that the non-implementation by the private contractors engaged for constructing a building for holding Asian Games in Delhi, and non-enforcement of these laws by the State Authorities of the provisions of these laws was held to be violative of the fundamental right of workers to live with human dignity contained in Art. 21.

Right To Livelihood

Supreme court in the case of Board Of Trustees Of The Port Of … vs Dilipkumar Raghavendranath … on 17 November, 1982, came to hold that “the right to life” guaranteed by Article 21 includes “the right to livelihood”. The Supreme Court in Olga Tellis v. Bombay Municipal Corporation, popularly known as the “Pavement Dwellers Case” a five-judge bench of the Court now implied that ‘right to livelihood’ is borne out of the ‘right to life’, as no person can live without the means of living, that is, the means of Livelihood. That the court, in this case, observed that:

“The sweep of the right to life conferred by Art.21 is wide and far-reaching. It does not mean, merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of death sentence, except according to procedure established by law. That is but one aspect if the right to life. An equally important facet of the right to life is the right to livelihood because no person can live without the means of livelihood.”

If the right to livelihood is not treated as a part and parcel of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.

In the instant case, the court further opined:

“The state may not by affirmative action, be compelled to provide adequate means of livelihood or work to the citizens. But, any person who is deprived of his right to livelihood except according to just and fair procedure established by law can challenge the deprivation as offending the right to life conferred in Article 21.”

Emphasizing upon the close relationship of life and livelihood, the court stated:

“That, which alone makes it impossible to live, leave aside what makes life livable, must be deemed to be an integral part of the right to life. Deprive a person from his right to livelihood and you shall have deprived him of his life.”

Therefore anyone who is deprived of the right to livelihood without a just and fair procedure established by law can challenge such deprivation as being against Art. 21 and get it declared void.

In the case of Delhi Transport Corporation vs D.T.C. Mazdoor Congress on 4 September, 1990 the Supreme Court of India held that, a regulation conferring power on the authority to terminate the services of a permanent and confirm employee by issuing a noticing without assigning him any reasons and without giving him a hearing has been held to be a wholly arbitrary and violative of Art. 21.

In M. Paul Anthony v. Bihar Gold Mines Ltd., it was held that when a government servant or one in a public undertaking is suspended pending a departmental disciplinary inquiry against him, subsistence allowance must be paid to him. The Court has emphasized that a government servant does not his right to life and other fundamental rights. And,

Article 14

Article 14 of The Constitution Of India envisages that all persons should be treated Equals before Law. Accordingly,

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

If we consider Engineer Valuers community as a professional community vis a vis Bank Managers, Advocates and Accountants, then this discrimination against valuers is against Article 14. So we can claim that the Bank is discriminating negatively on the Engineer Valuers when compared to Advocates and Accountants and Bank officials.

The Written Statement submitted by SBI in the Bombay High court blames Engineer Valuers for Bank’s NPA and brands engineers valuers as fraudsters and accused of giving exaggerated market values leading to losses to the Bank.

But what happens actually during the process of loan is that – Banks ask Engineer valuers to evaluate Market value of the Properties after verification of title to from a Legal Advisor, after visiting the properties by the Bank’s officials (Field officer/Branch Manager), etc. Engineer only gives the Market value of the Property shown to him by the Bank officials.

As is well known Market value fluctuates with the Market forces which are beyond the control of the Engineer. For example, after Demonetization there was a slump in real estate. And after implementation of GST there was more financial distress in the markets and real estate received a jolt. Apart from this at local level also there would be market fluctuations. If a road is acquired by Highways authority then there would be a surge in the values of lands in that area. Then if that proposal is dropped there would be slump in the same area.

Surprisingly, there is no mention of wrong valuation or exaggerated valuation of the properties by the valuer in the Indemnity Bond. The valuer is not asked to give correct valuation in the IB. The indemnity is vague. But given the title and vague recitals in the Indemnity Bond it can be used for ulterior purposes by the Bank to harm the Valuer to save bank officials’ frauds, if any.

And another important aspect is that before starting the process of the loan the Bank Manager appraises the financial credibility of the person or entity. That is repayment capacity of the person, prospects of his business, etc are thoroughly then only the process of the loan is started. To verify the financial status the Bank verifies his Income Tax returns, account statements showing his business transactions, etc. And also the Bank verifies the business prospects by obtaining the loss and profit projections made by a qualified and recognized accountant.

So as regards to the title of the property Advocate’s legal opinion is obtained.

And as regards to the repayment capacity Income tax assessment papers are important. And as to the business projections the Accountant’s statement is important. Based on these factors Accountant and Income tax reports quantum of loan is decided.

And properties offered as security are Valued by the Engineer valuer. These properties are kept by the Bank as collateral security. Primary security is the person only. Instead of bank taking Indemnity from the loanee’s friends or relatives like sons, daughters or wife bank is insisting on IB from engineer.

And also Bank officials who are responsible for sanction of loans and who are responsible for collection of loan repayments are not asked to sign indemnity bond. But only Engineer valuers are asked to do so.

So this is negative discrimination against engineer valuer who works for a small fee for his livelihood which is contradictory to the Constitutional safeguards provided under Article 14, the provision of Equality before Law.