NCDRC_Complainant_consumer_real estate_apartment booking_2020

 

8.       We have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the record. So far as the question of complainants being consumer is concerned, it is seen that the opposite party has not filed any evidence to prove that the flat has been booked for earning profit.  The opposite party has raised this issue only to avoid their liability towards the complainants. The complainants have paid the major portion of the consideration to the opposite party and neither the possession has been offered in time nor the amount has been refunded, therefore, the complainants are clearly the consumers as per Section 2(1)(d) of the Consumer Protection Act 1986.

9.      It is not clear when the complainants had given legal notice for refund of their paid amount, why have they filed the complaint for seeking possession of the flat in question?. However the learned counsel for the complainants has now clarified that the complainants have obtained another residential unit and therefore they require only refund in the matter because there has been inordinate delay in offering possession of the said flat by the opposite party. Hon’ble Supreme Court in Civil Appeal No.12238 of 2018 titled as “Pioneer Urban Land & Infrastructure Ltd. versus Govindan Raghavan” has observed that a complainant cannot be compelled to take possession after a long delay from the due date of possession as per the agreement even if the occupancy certificate has been obtained.

10.    This Commission in consumer complaint No. 2135 of 2016 Deepanshu Saini and Anr. versus SS Group Private Limited and 3 Ors decided on 04.09.2019 has observed the following:-

“12.         I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and examined the record. The admitted fact is that the possession was due on 30.5.2015 and the occupancy certificate has been obtained on 17.10.2018.  Clearly, there is a huge delay in the project. Letter of offer of possession was issued on 22.11.2018.  The complainants have not accepted offer of possession as the complainants have already given a notice for cancelling the agreement as per clause 8.3 (b) of the agreement.  Now, the question arises as to when the opposite parties have agreed to have a clause like 8.3(b) in the agreement and if the complainants have acted in accordance with this clause, the opposite parties should also have acted in compliance of this clause.  Even this Clause 8.3 (b) seems one sided because the complainants’ money is already blocked and if the same is not returned till the unit in question is sold to a third party, this is clearly prejudicial to the interest of the consumer.  The interest @ 15% is only payable when the flat is sold to a third party and the money is not refunded within 90 days from that sale.  All these conditions are totally one sided and they are the result of the dominant position of the builder at the time of signing the builder-buyer agreement because by that time lot of money of the complainants is already blocked with the builder.

13. The main reason for delay in completion of the project has been told to be due to delay in obtaining environmental clearance for the project.  Though, this may not be directly within the control of the opposite parties to get the clearance, however, the clear procedures are laid down and it depends on the management of the builder company how efficiently and meticulously they pursue the environmental clearance with the competent authority. Thus, this cannot be considered as force majeure, therefore, the delay on account of this factor cannot be excluded from the total delay in the project. Hon’ble Supreme Court in Civil Appeal No.12238 of 2018 titled as “Pioneer Urban Land & Infrastructure Ltd. versus Govindan Raghavan” has upheld the order of this Commission by observing the following:

“3.8. The National Commission vide Final Judgment and Order dated 23.10.2018 allowed the Consumer Complaint filed by the Respondent - Flat Purchaser, and held that since the last date stipulated for construction had expired about 3 years before the Occupancy Certificate was obtained, the Respondent - Flat Purchaser could not be compelled to take possession at such a belated stage. The grounds urged by the Appellant - Builder for delay in handing over possession were not justified, so as to deny awarding compensation to the Respondent - Flat Purchaser. The clauses in the Agreement were held to be wholly one - sided, unfair, and not binding on the Respondent - Flat Purchaser. 6 The Appellant - Builder was directed to refund Rs. 4,48,43,026/- i.e. the amount deposited by the Respondent - Flat Purchaser, along with Interest @10.7% S.I. p.a. towards compensation.

9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant - Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent - Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent - Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent - Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent - Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent - Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest.

10. The Civil Appeals are accordingly dismissed, and the Final Judgment and Order dated 23.10.2018 passed by the National Consumer Disputes Redressal Commission is affirmed.”   

14. On the basis of the above observations of the Hon’ble Supreme Court, it is clear that if the occupancy certificate is sufficiently delayed say beyond two years then the complainants cannot be compelled to take possession of the property and they are entitled to refund.  In the present case also, the occupancy certificate has been delayed by roughly three years, therefore, complainants cannot be compelled to take the possession.  As the learned counsel offered certain concessions at the time of argument, learned counsel for the complainants was asked whether the complainants would consider offer given by the learned counsel for the opposite parties.  It was categorically denied by the learned counsel for the complainants.  The learned counsel for the complainants stated that the complainants are now only interested in refund of the amount as they have lost faith in the opposite parties. Learned counsel for the complainants further stated that he has no objection if the amount due to IHFL is directly remitted to IHFL by the opposite parties/ builder and the remaining amount be given to the complainants.”

11.    The above observations are equally applicable in the present case as the present complaint is also against the same opposite party and under the same project. In the present case, clearly the possession was due by June 2015 and the occupation certificate has been obtained in October 2018, thus there being a delay of more than two years in obtaining the occupation certificate. In these circumstances, the complainants cannot be compelled to take the possession of the said flat as observed by the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. versus Govindan Raghavan (supra).  Clearly, the complainants are entitled to get refund of their paid amount from the opposite party.

Case No.	Complainant	Respondent

CC/1632/2017

RIA GUPTA (EARLIER AS RUNJHUN GUPTA) & ANR.

SS GROUP PRIVATE LIMITED

DOD: 26 Nov 2020

Supreme Court_Ongoing project_effect of RERA Registration_entitlement of possession period_Builder Buyer Agreements_BBA_Agreement to sell

 

33. We may now consider the effect of the registration of the Project under the RERA Act. In the present case the apartments were booked by the Complainants in 2011-2012 and the Builder Buyer Agreements were entered into in November, 2013. As promised, the construction should have been completed in 42 months. The period had expired well before the Project was registered under the provisions of the RERA Act.

Merely because the registration under the RERA Act is valid till 31.12.2020 does not mean that the entitlement of the concerned allottees to maintain an action stands deferred. It is relevant to note that even for the purposes of Section 18, the period has to be reckoned in terms of the agreement and not the registration. Condition no. (x) of the letter dated 17.11.2017 also entitles an allottee in same fashion. Therefore, the entitlement of the Complainants must be considered in the light of the terms of the Builder Buyer Agreements and was rightly dealt with by the Commission.

M/s. Imperia Structures Ltd. Vs. Anil Patni and Anr.

[Civil Appeal No. 3581-3590 of 2020 @ Civil Appeal Diary No. 9796/2019]

[Civil Appeal No. 3591 of 2020 @ Civil Appeal Diary No. 9793/2019]

Source: https://www.advocatekhoj.com/library/judgments/announcement.php?WID=13253 

NCDRC_Supreme Court_Time of filing reply_Consumer Protection Act

As held by the Hon’ble Supreme Court in Civil Appeal No.10941-10942 of 2013 - New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. dated 04.03.2020, the delay in filing the written version cannot be condoned beyond 15 days, by a Consumer Forum. Therefore, irrespective of the merit of the case, it will not be permissible for this Commission to condone the delay if it happens to be more than 15 days. Had the written version been filed on 15.9.2020 even then it would have been barred by limitation which had already expired on 14.9.2020:

Source:

Case No.	Complainant	Respondent	Complainant Advocate	Respondent Advocate	Date of Filing	Date of Disposal
FA/718/2020	PUNJAB URBAN PLANNING & DEVELOPMENT AUTHORITY & ANR.	GURVAK SINGH	MS. ZEHRA KHAN & ZAHID AHMED		2020-10-19	2020-10-27

Supreme Court_NCDRC_ compensation_no possession of apartment

.............the Hon’ble Supreme Court in Ghaziabad Development Authority versus Balbir Singh, (2004) 5 SCC 65 to impress that compensation for a person who does not get possession is more as compared to a person who gets the possession. The learned counsel referred to the following observation of the Hon’ble Supreme Court in this case:-

 “9.  That compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would necessarily have to be higher.  Further if the construction is not of good quality or not complete, the compensation would be the cost of putting it in good shape or completing it along with some compensation for harassment.  Similarly, if at the time of giving possession a higher price or other amounts are collected unjustifiably and without there being any provision for the same the direction would be to refund it with a reasonable rate of interest.  If possession is refused or not given because the consumer has refused to pay the amount, then on the finding that the demand was unjustified the consumer can be compensated for harassment and a direction to deliver possession can be given.  If a party who has paid the amount is told by the authority that they are not in a position to ascertain whether he has paid the amount and that party is made to run from pillar to post in order to show that he has paid the amount, there would be deficiency of service for which compensation for harassment must be awarded depending on the extent of harassment.  Similarly, if after delivery of possession, the sale deeds or title deeds are not executed without any justifiable reasons, the compensation would depend on the amount of harassment suffered.  We clarify that the above are mere examples.  They are not exhaustive.  The above shows that compensation cannot be the same in all cases irrespective of the type of loss or injury suffered by the consumer. ”        

[Cancellation Of Written Instruments] Action Instituted U/s 31 Specific Relief Act Is Arbitrable As It Is Not An Action In Rem: SC

 The Supreme Court has held that an action instituted under section 31 of the Specific Relief Act, 1963 is not an action in rem, but an action in personam, and therefore arbitrable.

In this case, a suit was filed by Deccan Paper Mills Co. Ltd. against Regency Mahavir Property and others, One of the prayers was to set aside some agreements as well. The Court had allowed the application filed by Regency to refer the matter to Arbitration. The High Court also dismissed the writ petition filed by Deccan in this regard. Thus, before the Apex Court in appeal, Deccan contended that since the prayer in the suit is for cancellation of three "written instruments", the proceeding under section being a proceeding in rem, would fall within one of the exceptions made out in Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532. The contention was made referring to section 31 of the Specific Relief Act, 1963 and a Division Bench judgment of the High Court of Judicature at Hyderabad for Telangana and Andhra Pradesh in Aliens Developers Pvt. Ltd. v. M. Janardhan Reddy, (2016) 1 ALT 194 (DB) in which it was held that the action under Section 31 is an action in rem and therefore non-arbitrable.

Referring to Muppudathi Pillai v. Krishnaswami Pillai, AIR 1960 Mad 1, the Apex Court bench comprising of Justices RF Nariman, Indira Banerjee and Navin Sinha observed that the expression "any person" in Section 31 does not include a third party, but is restricted to a party to the written instrument or any person who can bind such party. It said:

"The principle behind the section is to protect a party or a person having a derivative title to property from such party from a prospective misuse of an instrument against him. A reading of section 31(1) then shows that when a written instrument is adjudged void or voidable, the Court may then order it to be delivered up to the plaintiff and cancelled – in exactly the same way as a suit for rescission of a contract under section 29. Thus far, it is clear that the action under section 31(1) is strictly an action inter parties or by persons who obtained derivative title from the parties, and is thus in personam. "

Disagreeing with the interpretation made by the Division Bench in Aliens Developers, the court observed that the factum of registration of what is otherwise a private document inter parties does not clothe the document with any higher legal status by virtue of its registration.

An action that is started under section 31(1) cannot be said to be in personam when an unregistered instrument is cancelled and in rem when a registered instrument is cancelled. The suit that is filed for cancellation cannot be in personam only for unregistered instruments by virtue of the fact that the decree for cancellation does not involve its being sent to the registration office – a ministerial action which is subsequent to the decree being passed.

Overruling Alien Developers, the bench dismissed the appeals and further observed:

"The proceeding under section 31 is with reference to specific persons and not with reference to all who may be concerned with the property underlying the instrument, or "all the world". Clearly, the cancellation of the instrument under section 31 is as between the parties to the action and their privies and not against all persons generally, as the instrument that is cancelled is to be delivered to the plaintiff in the cancellation suit. A judgment delivered under section 31 does not bind all persons claiming an interest in the property inconsistent with the judgment, even though pronounced in their absence"

"..The reasoning in the aforesaid judgment would again expose the incongruous result of section 31 of the Specific Relief Act being held to be an in rem provision. When it comes to cancellation of a deed by an executant to the document, such person can approach the Court under section 31, but when it comes to cancellation of a deed by a non-executant, the non-executant must approach the Court under section 34 of the Specific Relief Act, 1963. Cancellation of the very same deed, therefore, by a non-executant would be an action in personam since a suit has to be filed under section 34. However, cancellation of the same deed by an executant of the deed, being under section 31, would somehow convert the suit into a suit being in rem. All these anomalies only highlight the impossibility of holding that an action instituted under section 31 of the Specific Relief Act, 1963 is an action in rem."

Case details
Case no.: CIVIL APPEAL NO. 5147 OF 2016
Case name: DECCAN PAPER MILLS CO. LTD. vs. REGENCY MAHAVIR PROPERTIES & ORS.
Coram: Justices RF Nariman, Indira Banerjee and Navin Sinha
Counsel: Adv Meena Doshi and Sr. Adv Vinay Navre

Source: https://livelaw.in/top-stories/section-31-specific-relief-act-not-action-in-rem-arbitrable-161746

 

More than one Units/Flats/Apartments_Consumer_NCDRC

Case No. Complainant Respondent CC/975/2017 RAJEEV KUMAR SINGH JAI PRAKASH ASSOCIATES LTD. & ANR.   NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

 

CONSUMER CASE NO. 976 OF 2017

 

1. RAJEEV KUMAR SINGH S/o. Shri. K.P. Singh, R/o. D-63, Sector -40, Noida- 201301 U.P.	...........Complainant(s)
Versus
1. JAI PRAKASH ASSOCIATES LTD. & ANR. Sector - 128, Noida Uttar Pradesh - 201 304 2. Jaypee Infratech Limited., Sector - 128, Noida - 201 304 U.P.	...........Opp.Party(s)

 

15. So far as the question of Complainant being or not being a consumer is concerned, this Commission has already taken a view in a number of cases that if the complainant is not in the business of purchase/sale of the plots/flats, he will be treated as a consumer.  This Commission in Aashish Oberai  Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14.09.2016, has held as follows:-

“In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose”.

It was also observed that:-

“It would be pertinent to note that there is no evidence of the complainant having purchased and then sold any residential property.  Therefore, it would be difficult to say that he was engaged in the business of the buying and selling of the property or that villa in question was booked by him for speculative purposes”.

16. In another case, Kavit Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd.,  I(2016) CPJ31(NC), wherein three flats were booked by the complainant, this Commission held the complainant to be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 and held as follows:-

“In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and / or plots on a regular basis, solely with a view to make profit by sale of such houses.  If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose.  A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment.  He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc.  Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house (s) is higher than the price paid or agreed to be paid by him.  That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s).

7.      Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity.

8.  As observed by the Hon’ble Supreme Court in Laxmi Engineering Works (supra) what is a ‘commercial purpose’ is a question of fact to be decided in the facts of each case and it is not the value of the goods that matters but the purpose for which the goods brought are put to. The same would be equally applicable to for hiring or availing services.

9.  In any case, it is not appropriate to classify such acquisition as a commercial activity merely on the basis of the number of houses purchased by a person, unless it is shown that he was engaged in the business of selling and purchasing of houses on a regular basis. If, for instance, a person has two-three children in his family and he purchased three houses one for each of them, it would be difficult to say that the said houses were purchased by him for a commercial purpose. His intention in such a case is not to make profit at a future date but is to provide residential accommodation to his children on account of the love and affection he has for his children. To take another example, if a person has a house say in Delhi but he has business in other places as well and therefore, purchases one or more houses at other places where he has to live presently in connection with the business carried by him, it would be difficult to say that such acquisition is for commercial purpose.  To give one more example, a person owning a house in a Metropolitan city such as Delhi, or Mumbai, may acquire a house at a hill station or a place, which is less crowded and more peaceful than a Metropolitan city, in my view, it cannot be said that such acquisition would be for commercial purpose.  In yet another case, a person may be owning a house but the accommodation may not be sufficient for him and his family, if he acquires one or more additional houses, it cannot be said that he has acquired them for commercial purpose.  Many more such examples can be given.  Therefore, it cannot be said that merely because of the complainant had agreed to purchase three flats in the same complex the said acquisition was for a commercial purpose”.

17. This Commission, in Rajesh Malhotra & Ors. Vs. Acron Developers & 2 Ors., First Appeal No. 1287 of 2014, decided on 05.11.2015 has held as follows:-

“12.     Therefore, in order to determine whether the goods are purchased for commercial purpose, the basic pre-requisite would be whether the subject goods have been purchased or the services availed of with the prime motive of trading or business activity in them, for the purpose of making profit, which, as held in Laxmi Engineering (supra) is always a question of fact to be decided in the facts and circumstances of each case”.

 

18. On the basis of the above authoritative judgements of this commission, there seems to be no iota of doubt that the Complainant in the present complaint is a consumer.  The judgment relied upon by the Opposite Party in Consumer Complaint No.159/2012 Anil Dutt vs. M/s Business Park Town Planners Ltd. (BPTP) (Supra) relates to a case where 10 units were booked by one consumer and clearly this Commission has observed that a person booking 10 plots cannot be treated as consumer as the plots were booked for commercial purpose.  In Laxmi Engineering Works Vs. P.S.G Industrial Institute (1995) 3 SCC583, Hon’ble Supreme Court has observed that the finding on issue of commercial purpose will depend on facts and circumstances in each case.  In the present case, only two flats were booked by the Complainant and therefore, facts of the two cases are different.  Thus, the judgment of this Commission in Consumer Complaint No.159/2012 Anil Dutt vs. M/s Business Park Town Planners Ltd. (BPTP) (Supra) cannot be applied in the present case.  

LEGAL TERRORISM: Endless adjournments, delays; deny justice; Can it be curbed? http://www.journeyline.in/newsdet.aspx?q=139370

Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for one party and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road.

The Supreme Court in Swaran Singh's case observed as under:

" ...Perjury has also become a way of life in the law courts. A trial Judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340 (3) of the Code of Criminal Procedure in this respect as the High Court can direct any officer to file a complaint. To get rid of the evil of perjury, the court should resort to the use of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure."

The Court's time and resources are consumed in attending to uncalled for litigation as it is created by clever litigants since they know that current procedures and practices hold an incentive for wrongdoer. At present 90% litigation in the court is created since the movers know the wheel of litigation is endless once struck in this rigmarole and frequent frivolous adjournments without costs are matter of practice so litigation is luxury for certain hardcore litigants and they generate Litigation.

Those involved receive less than full Justice and infact greater number than those involved who suffer injustice because they have less access to justice, infact lack of awareness and confidence in the justice system.

One of the major reasons of frivolous litigation and delay which is a cause of injustice that no adequate realistic costs are imposed by judges which encourages one of the party who is interested in delay only and this has been observed by the Supreme Court of India also in Rameshweri Devi's case where ways and methods have been devised to curb delays.

The parties play foul with court procedure and don't follows the interim orders and procedure since they know the practice in courts and by delaying tactics they get easy adjournment on every date. The parties raise frivolous unwarranted pleas, claims, defences, adopt obstructionist and delaying tactics mainly because the courts don't impose actual or realistic costs including appearance fees of the counsel which union of India is paying Rs. 6500/- Per appearance to their panel counsels and about Rs 10000 to a senior panel counsel.

The unsuccessful party usually remains uncompensated in courts and it operates the main motivating factor for unscrupulous litigants and when wins only nominal cost is awarded which is a source & strength for wrongdoer.

Unless the courts by passing appropriate directions, remove the basic cause for motivation or incentives, uncalled for litigation will flourish. Court time and resources will be consumed for nothing and "Justice will be delayed and denied" and this process to delay justice will remain endless.

Time has come that in case the court wants to deliver justice then the frivolous adjournments will have to be curbed with heavy hand and impose heavy and realistic costs to compensate the lawyer appearing in the case so that he may not be embarrassed for unrealistic adjournments. There are certain lawyers who speak lie just to seek adjournment in order to benefit to their client since they know delay defeats Justice but there are many lawyers who are virtuous and hand working and want to get the judicial system reclaim the lost glory.

Delays hamper achieving justice well in time therefore, to check the delays by impurity in presentation impose cost and compensate the lawyers representing the other side so that his appearance and Party's court visit are properly compensated. This will help to deliver justice quickly and counter the deployment of obstructive tactics. A Judge can't be party to such tactics therefore; the judges must impose realistic cost to compensate the other party appearing in the case. This practice has been fully endorsed by the Supreme Court in latest guide lines. Prolonging litigation is common place because, in practice the courts are reluctant to order actual cost incurred by the other side therefore to check unnecessary delays caused adequate compensation by way of costs should be imposed.

Unfortunately our courts are flooded with such cases where delay is profitable for wrongdoer.

It is a matter of common knowledge that domestic servants, gardeners, watchmen, caretakers or security men employed in premises whose status is nothing more than caretaker or Licence indiscriminately file suits for injunctions not to be dispossess by making all sorts of allegations against true owner or Landlord and even filing forged documents and then blackmail the true owner or Landlord by demanding chunk of money for withdrawing suits "using" the legal system to extort money by this sort of legal terrorism.

It is happening because it is general impression that even if ultimately unauthorized person thrown out of the premises the court would not ordinarily punish the unauthorised person by awarding realistic and actual mesne profit, imposing costs or ordering prosecution to compensate the victim and then it would take years and years to get the own land, house or shop back so one has to settle on table by paying the wrong doer.

It is also a matter of common knowledge that lakhs of flats, houses, shops are kept locked for years because owners are sure that caretaker, License or tenant will not vacate the premises for years together despite expiry of lease period, thus causing wastage of nation's wealth. But this is not the case in Europe or America, as laws and moreover execution of laws is stringent. A lease if violated has serious repercussions there but here even if the lease / rent deed or license expires no one bothers to vacate the premises as the law, procedure tilts in his favour and he can get the premium of his wrong.

In some cases the tenants stake claim for ownership against true owner when under Law Tenant can't challenge the status of landlord or ownership but he knows that hardly the courts have any time to decide such cases and thus they demand chunk of money and Landlord or owners are compelled due to the delayed process of courts to pay the money or forget about their property.

Hardly there is any case where delay tactics are not adopted and prolong the case for years and years. Courts should not become prey of such tactics but must compensate the otherside properly and award costs which should not be less than Rs. 10000/ per adjournment or more for frivolous adjournments. Courts must come heavily against the party who dares to file forged documents and commits perjury such a party must be prosecuted to check the purity of legal system.

It will be difficult to control uncalled, frivolous litigation unless the courts don't control undue adjournments and delay the profit to wrongdoers. Let there be no incentive for frivolous litigation and false adjournments.

The High Court and Administrative Judge must keep periodical monitoring of the proceedings of Lower/ subordinate Courts and incase any Judge who does not check delay his promotion avenues must be stopped and be declared deadwood. All promotions must be based on his quick qualitative disposal and not seniority.

Some classic example which abundantly depicts the picture of law the Civil Litigation moves in our courts and how unscrupulous litigants, can till eternity harass the opposite party, their children by misusing judicial system.

Decided after 8 years despite two High Court directions to decide the case in 6 months.

In one case under J&K Hindu Marriage Act petition was filed for Divorce before matrimonial Court Jammu and mandate of law is to decide the case in 6 months . Has the High Court noticed that why the cases are not being decided in 6 months or 1 year or 2 years but taking atlest 5-6 years or more? Has the Administrative Judge ever expressed displeasure over undue adjournments granted without costs?

The High Court has framed rules on 3-03-2010 which mandate no adjournment shall be granted without exemplary costs. Has the administrative Judge read out the proceedings of files and expressed concern or asked for explanations? High Court orders too may not adhered too in several of such cases if checked, and number of frivolous adjournments granted to the wrongdoer. Similarly the mandate of Law M 138 N.I Act to decide the complaint in 6 months why the complaints are not decided in 6 months or one year and against the law the Court is taking 4-5 years in Jammu even in cheque bounce cases whileas in rest of the country the Magistrates have made it a point to decide it if not within 6 months then atlest in 1 years but in J&K it is strange that the cases continue ad infinitum and the concerned Lawyer who seeks adjournments after adjournments is not even bothered and Magistrate too has no fear of High Court rules, Apex Court verdicts and the statutory law? Let the administrative Judges call for explanations of the concerned Magistrates and ensure the disposal in 6 months of such cases. High Court of J&K has codified rules governing subordinate courts and divided the cases into 4 categories/tracks. The rule framed by High Court of J&K reads: Relevant extract:-

Trial courts and First Appellate Subordinate Courts Rules, 2010 GAD Letter No. GDC-15 / CM/ 2010, dt. 3.3.2010

In exercise of the powers conferred by section 102 of the Constitution of Jammu and Kashmir, section 122 of the Code of Civil Procedure, Samvat 1977 (X of 1977), section 8 of the Jammu and Kashmir State Civil Courts, Act, Samvat 1977 and Clause 26 of the Letters Patents (Jammu and Kashmir) and all other powers enabling it in this behalf, the High Court of Jammu and Kashmir, with the prior approval of the Governor, hereby makes the following Rules, namely:-

DIVISION OF CIVIL SUITS AND APPEALS INTO TRACKS:

1. Based on the nature of dispute, the quantum of evidence to be recorded and the time likely to be taken for the completion of suit, the suits shall be channeled into four tracks; Track 1 May include suits for maintenance divorce and child custody and visitation rights, grant of letters of administration and succession certificate and simple suits for rent or for eviction( upon notice under section 106 of the Transfer of Property Act) Track 2 may include money suits and suits based solely on negotiable instruments. Track 3 may include suits concerning partition and like property disputes, trade marks, copyrights and other intellectual property matters. Track 4 may include any other matter. All effort shall be taken for complete deposal of the suits in Track 1 within a period of 9 months in Track 2 within a period of 12 months and in Tracks 3 and 4 within a period of 24 months from the date of institution of a suit.

Rule 8, 9, and 10 reproduced.

8. Costs

The costs shall invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on a number of other issues or points which were unnecessarily raised, costs shall be appropriately apportioned. Special reasons shall have to be assigned if costs are not being awarded. Costs shall be assessed according to rules in force. If any of the parties has unreasonably protracted the proceedings, the Judge shall consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates.

9. Proceedings for perjury

If the trial court, while delivering the judgment, is of the view that any of the parties or witnesses have willfully and deliberately uttered blatant falsehoods, he shall consider whether it is a fit case where prosecution should be initiated for perjury and order prosecution accordingly.

10. Adjournments

When a suit is listed before a court and any party seeks adjournment, the court shall have to verity whether the party is seeking adjournments due to circumstances beyond the control of the party, as required by clause (b) of the proviso to sub-rule 2 of Rule 1, Order 17 Civil Procedure Code. The court shall impose costs as specified in sub-rule 2 of Rule 1, Order 17 Civil Procedure Code."

A million dollars question arises whether High Court framed rule are meant to violate with impunity or it is a meaningless exercise to frame rules? Let the High Court decide whether the rules are to be framed to violate or implement depends on the will of the High Court itself. To me it appears no rule can be permitted to be violated particularly when it is made practice of the day. There must be an accountability why the rules are being violated and one of the party put to advantageous position to prolong proceedings endlessly.
Adjourning the case is no justice rather it is injustice to other party. It is high time to identify Magistrates/ Subordinate Judges who decide the cases expeditiously with time bound qualitaive Judgments must suitably rewarded by out of turn promotion and elevation to High Court. Seniority is no criterion for elevation, let it be checked and only deserving efficient and having unquestionable reputation amongst the Bar and general public be elevated out of turn to High Court. It will be a great boost for those who work and encourage all other judges to decide cases well within stipulated period.

Bar members too must evaluate performance and laud the role of such Judges and recommend to High Court for out of turn promotion. The Delhi High Court Judges and Chief Justice have taken a drive against some of the Judges whose performance was below average and are thrown out of service. Let the same drive be initiated by J&K High Court Judges and particularly the Administrative Judge to physically examine the files of the Lower Courts once in a week to gear up the justice delivery system.

Source http://www.journeyline.in/newsdet.aspx?q=139370