As a bailiff stationed in the plains of southern Nepal, I take the opportunity to serve the litigants of my neighborhood where I was born and I grew up. I firmly believe that an educated youth should take the side of rationality, not political parties. Here in this article, I am going to share some of the untold areas of litigation that have been and are acting as slow poison for members of the Madhesh and Madheshi community.
In Madhesh, it is a norm that everyone will not only grow up and survive, but also leave the opportunists free to earn disproportionate income. This is true in the case of “Madheshi messiahs” and NGO activists as well. Courts in the Terai are inundated with litigation for no good reason, but Madheshi parties at the helm rarely launch an outreach program or ADR mechanism.
In a democracy, the political parties in power have the mandate of the people to govern in accordance with the constitutional spirit. The tendency to invoke the jurisdictions of the courts with ulterior motives is neither good for society nor complements the social fabric. That is why, on and off the bench, judges and court officials have consistently spoken out against the flood of litigation and frequent recourse to the courts; because more cases lead to more conflicts in society and more conflicts lead to more frustration and anger. Let me share a popular Terai money lending practice that is becoming a bane, not a boon, to the underprivileged.
In Madhesh, it is common practice to take out loans from pawn shops when the need arises. In fact, borrowing and lending is not illegal tendering, but truth and fairness should be the two attributes that must be respected in all money lending activity.
Lenders first inquire about the status of the borrower and the security of the loan. To put it simply, lenders don’t like to lend money to a person who has no assets that could be auctioned off by the court for default of the loan.
I find the Terai District Courts to be good platforms for moneylenders to make loans from defaulting parties. Daily, the Terai courts register a plethora of cases of non-payment of loans as mentioned in the deed of loan (Tamasuk). The applicants, the loan providers, file complaints with the intention of realizing the principal amount with interest.
What annoys me is that there is no one to question the money lenders, who present themselves as applicants, about their sources of income. In the Terai, there is a practice of claiming three times for non-payment of the loan or default. Let me explain this situation with an example.
If Mr. Ram Avatar, who is a pawnshop, grants a loan to Mr. Harinath in the amount of Rs 500,000, then Mr. Ram Avatar will prepare a loan deed of Rs 1,500,000 in which Mr. Harinath s ‘will officially undertake to pay Rs 1,500,000 with interest at the rate of 10 percent per annum within a stipulated period which is prescribed in the deed. It has become a reality in the Terai.
The high voltage drama begins when there is default or breach of agreement or say, when the loan is not paid on time. Usurers find the benches of the courts to be the perfect forums to assert their claims. As the law recognizes the documents, which have probative value, the courts render judgments in favor of the lenders who produced the original of the deed of loan. Thus, the money lending business has become an easy way to earn out of proportion.
A judge recording statements in money lending cases (or cases relating to loan deeds) does not inquire about the source of the loan provider’s income. In court, it is common practice not to ask a money provider to prove whether there was a banking transaction carried out by him on the date he remitted the sum to the borrower. Thus, in loan cases, the source of income remains beyond the reach of judicial determination.
Let me put here another example. Mr. Hari Prasad, a loan shark, has earned Rs 2,000,000 through illegal means and he wants to convert this black money into white money. Mr. Hari Prasad asks his friend Mr. Avatar Yadav to become a borrower of the paper loan. Then, Mr. Hari Prasad and Mr. Avatar Yadav reach an agreement to draw up a loan deed where it would be shown that Mr. Avatar Yadav is the borrower of Rs 2,000,000 from Mr. Hari Prasad. The act was passed retrospectively, that is to say before 1 Bhadra 2075 (August 17, 2018), the date of entry into force of the National Code of Civil Procedure, 2074 BS (2018).
In the deed, it is mentioned that Mr. Avatar Yadav would make the payment of the loan taken from Mr. Hari Prasad no later than March 15, 2020. Now Mr. Hari Prasad is suing Mr. Avatar Yadav for non-payment of the loan . Three days after the case was filed, Mr. Hari Prasad goes to court to withdraw the case, claiming that the defendant, Mr. Avatar Yadav, deposited the amount into his bank account, so there is no no reason to dispute this matter. Then the judge would allow him to withdraw the case. In this way, Tamasuk works like a magic stick to convert black money into white money.
Although the National Code of Civil Procedure requires lenders and borrowers to register their Tamasuk with local agencies, current laws do not allow agents of local agencies to require lenders to disclose the source of income. In Dhanusha District Court, of the total cases filed in one year, loan cases account for more than 70 percent.
On the other hand, there has been a standard in the Terai to file a divorce action for miscommunication or disputes in the marriage. Nowadays, the divorce rate is increasing in the Terai. Sometimes I see a disgruntled bride dragging a groom from the bedroom to the courtroom for heavy child support. It is something that must be avoided for the sake of society.
The Terai courts are also filled with disputes relating to land encroachment. The act of encroachment is not done by someone who is unknown but by his neighbors and blood relatives himself. Beyond all this, the family members, who have had the experience of sharing the same kitchen, file a complaint against their own coparcens to claim their share of the property. It is a common practice in the Terai for brothers to become parties to a case after their marriage to claim their share of ancestral (common) properties. I have the impression that one side is approaching the court for justice, while the other to satisfy their ego. Some say it is “Mochh ke ladai” (the struggle for pride / ego).
Under this pretext, I believe, although we have the most comprehensive constitution, we lack comprehensive legislation to deal with bizarre loan acts. Money lending has become a profitable activity in the Terai. There is no law on file that requires money lenders to justify their source of income. If the borrower has taken out a loan of Rs 1,000,000, he will be asked to agree to a deed of loan of Rs 30,000,000; there is a mutual understanding that if the borrower repays the loan on time, he has to pay Rs 1,000,000 / – with interest, but in case of default he has to face legal consequences and the law will recognize the things stated in writing, that is to say, the loan of Rs 30,00,000.
It is high time we passed legislation to protect the interests of borrowers and curb illegal or oppressive policies and procedures by lenders. In fact, it is shameful for a country with the rule of law to free a group of people committed to turning their black money into white money in broad daylight. The poor get poorer and the rich get richer and that too in a way protected by law. Isn’t that a shameful business? It’s time to think!
Undoubtedly, Madhesh and Madheshi society cannot embark on the path of progress unless mentalities change for the better. For this, political will is essential. In Terai, if there is anything that is profitable, it is none other than the “Madhesh policy”. Those affiliated with regional politics here have managed to take key government positions and political appointments. And the company has nothing in return. The messiahs made a fortune, not Madhesh.
As the courts of the Terai are inundated with litigation, the need of the hour is to form separate benches to deal with family disputes or cases of a civil nature. Like in India, we should have family courts, civil courts or sessional courts to deal with criminal cases. The government could launch various legal aid programs, such as “Meet the Judges” or a legal camp, to raise awareness in society. After all, legal pills cannot cure all ailments.
(The author, a former professor of law at the Faculty of Law of the University of Kathmandu, is a judicial officer at the Dhanusha District Court, Janakpurdham.