HREAT Issue of maintainability goes to the root of the jurisdiction

10. Even with regard to the claim of compensation on account of alleged structural defects, the law requires that the complaint must be filed and processed in accordance with the procedure prescribed under Rules 28 and 29 of the Haryana RERA Rules, 2017. In the present case, the complaint combines multiple reliefs relating both to development works and compensation without following the prescribed procedure. Therefore, the complaints could not have been considered by the Adjudicating Officer.

11. *The objection raised by the appellant-promoter regarding maintainability goes to the root of the jurisdiction of the Adjudicating Officer. Such an issue ought to be decided at the threshold before proceeding further in the matter. However, the Adjudicating Officer proceeded without deciding this issue, which is not in consonance with the settled legal principles.*

12. In view of the foregoing discussion, we are of the considered opinion that the Adjudicating Officer has exercised jurisdiction not vested in him by law and has failed to exercise jurisdiction so vested in deciding the issue of maintainability at the appropriate stage.

13. *Consequently, the appeals are allowed. The impugned order in all the above-mentioned appeals is hereby set aside and the complaints filed before the Adjudicating Officer are held to be non-maintainable.*

HREAT in Appeal No. 08 of 2026 & connected appeals

H-REAT-8-2026 titled as St. Patricks Realty Pvt. Ltd. V/s NEHA PRASAD dated 01-Jul-2026

 

Supreme Court _Condonation of delay approach

The Honb'le Supreme Court in case titled as “Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others reported as (1987) 2 Supreme Court Cases 107, said as under about approach for condonation of delay: -

 “xxx xxx xxx And such a liberal approach is adopted on principle as it is realized that: 

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal.”

The principles stated in the above-said judgment were reiterated and reaffirmed in the judgment of the Hon'ble Supreme Court in case titled as “Dhiraj Singh (D) through legal representatives & others Vs. State of Haryana”, (2014) 14 SCC 127.

 THE HARYANA REAL ESTATE APPELLATE TRIBUNAL in Appeal No.622 of 2024 Date of Decision: December 05,2025 Conscient Infrastructure Private Limited Versus Haryana Real Estate Regulatory Authority, Gurugram

In Brijmani Devi v. Pappu Kumar (2022) 4 SCC 497, Hon’ble Supreme Court, after reiterating the principles laid down in Kranti Associates Pvt. Ltd. V. Masood Ahmed Khan and others (2010) 9 SCC 496, held that a quasijudicial authority must engage in a thorough examination of the issues and provide a reasoned decision. This is crucial for maintaining the integrity of the adjudicatory process.

Any attempt to justify non-speaking and cryptic order by an affidavit filed during course of appellate proceedings has to be rejected. In Assistant General Manager State Bank of India and another v. Tanya Energy Enterprises through its Managing Partner Shri Alluri Lakshmi Narasimha Varma (Civil Appeal No. 11134 of 2025, decided on 15.09.2025), Hon’ble Supreme Court held that validity of an order, which is under challenge in the proceedings, must be tested on the basis of ground(s) mentioned in it in support thereof; and any additional ground, to support the order under challenge, cannot be allowed to be raised in the reply affidavit or in course of arguments. Relevant paragraph thereof is extracted below for ready reference:

 “35. To refresh our memory, the aforesaid decisions are authorities for the proposition that validity of an order, which is under challenge in the proceedings, must be tested on the basis of the ground(s) mentioned in it in support thereof; and any additional ground, to support the order under challenge, cannot be allowed to be raised in the reply affidavit or in course of arguments. The underlying principle is that an order which is bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out….”

The aforesaid judgment echoes the view earlier expressed by Hon’ble Supreme Court in Mohinder Singh Gill v. Chief Election Commissioner (1978)1 SCC 405

[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

 

Home Loan Against The Security Of The Allotment Latters

City and Industrial Development Corporation of Maharashtra State Ltd., (For short: CIODCO), besides being the Development Authority, has been constructing the apartments and allotting the same to the intending purchasers and, similarly, Maharashtra Housing And Development Authority, (For short: MHADA) with the main objective of providing affordable housing to the public. CIDCO initially issues an allotment letter on payment of EMD and the Agreement for Sale is executed after the payment of the full and final sale consideration with the miscellaneous charges and it grants permission to the allottee to mortgage the apartment to any of the 44 financial institutions, as per the names mentioned therein. Though MHADA is also a wholly owned company of the State Government, it, initially, issues only provisional Offer letter and on the payment of the balance sale consideration and other requirements, it issues the final allotment letter. The Banks, both in public sector and private sector, and the housing finance companies (For short Financial Institutions) have been advancing loans to such allottees for making the payment of the sale consideration etc. to CIDCO or MHADA, as the case may be, to acquire such apartments against the deposit of the allotment letters and the permission to mortgage issued by such bodies. The question arises whether legally enforceable equitable mortgage is created by simply depositing the allotment letter and letter permitting mortgage.

This issue arose in the case of an industrial plot allotted by the Government of Andhra Pradesh with the Industrial Development Area, at NACHARAM (A.P), subsequently, vest with Andhra Pradesh Industrial Infrastructure Corporation ( For short: APIIC), to a Company named United Auto Tractor Ltd., to set up an industrial unit by way of an Order dated 18.7.1972, followed by an unregistered agreement dated 3.8.1972 entered into between the State Government and the said Company, inter-alia, providing that only on the completion and full payment of the entire consideration amount, sale deed shall be executed and registered in the name of the company and till such time, the ownership of the property shall continue to remain with the Government. On the said day, the said Government, through the Director of the Industries, issued a letter to the Company permitting the mortgage of the said land to any scheduled Bank to obtain financial assistance. Accordingly, the said Company availed of a loan from the Syndicate Bank by mortgaging the said land by depositing the said allotment letter-cum-agreement (unregistered) and the permission to mortgage as an equitable mortgage. Since the said Company could not keep up its commitment, the Syndicate Bank filed a Petition in the year 1995 before the Debt Recovery Tribunal, Bangalore, for the recovery of more than Rs.2.5 crores and the Bank intended to enforce it charge on the property. The petition was allowed by the DRT and a Recovery Certificate was issued on 1.7.1997. It resulted into multiplicity of litigation and the Division Bench of Andhra Pradesh High Court took up all the writ petitions for consideration and after hearing all the parties, it held that Syndicate Bank did not act diligently in advancing huge financial assistance to the Company on the strength of a letter of no-objection purported to have been issued by the Director of Industries and it was surprising that Syndicate Bank equated that letter to that of a title deed and, accordingly, advanced monies without taking proper care and caution as the Government merely granted permission by putting the Company in possession of the land and the property always remained with the Government. No sale deed was executed by the Government in favour of the Company and the Company had taken APIIC, as well as the Syndicate Bank, for a ride. In the circumstances the Hon’able High Court held the Proclamation of Sale Notice dated 21.1.1998 issued by the Recovery Officer as ultra virus. It further held that the Letter dated 3.8.1972 by no stretch of imagination could be characterized as a document of title so as to enable the Company to mortgage the same by deposit of title deeds in order to secure financial assistance from the Syndicate Bank.

Aggrieved by the said judgment of Andhra Pradesh High Court, the Syndicate Bank went to the Supreme Court of India by way of various appeals, mainly, being Civil Appeal No.7824 of 2004 (Supreme Court - Daily Orders Syndicate Bank vs Estate Officer And Manager ... on 20 February, 2019 https://indiankanoon.org/doc/85953436/). The matter was listed before Hon’able Mr. Justice S.B. Sinha and Hon’able Mr. Justice Markandey Katju on 30.8.2007. It was pleaded on behalf of Syndicate Bank that a valid equitable mortgage was created by deposit of the allotment/Agreement dated 3.8.72 with the permission letter of the same date from the Director of Industries for the mortgage in favour of the financial institutions and these documents were the documents of title within the meaning of section 58 (f) of the Transfer of Property Act. The learned Solicitor General and Senior Counsel Shri A.K.Ganguli, appearing on behalf of State Government and APIIC, submitted that the Agreement dated 3.8.72 being not registered, no title was conferred on the Company and pursuant whereto, the company had not derived any assignable title. The letter dated 3.8.72 issued by the Director of Industries was not being a document of title, the judgment of the High Court could not be assailed. The main question which arose for consideration of the Hon’able Supreme Court was whether for satisfying the requirements of the said Section 58 (f), it was necessary to deposit documents showing complete or good title and whether all the documents of title to the property w2ere required to be deposited. A ‘fortion’ the question which would arise for consideration is as to whether in all such cases, the property should have been acquired by reason of a registered document.

After weighing various arguments and the case laws cited on behalf of both the parties, the Hon’able Supreme court in this case, reported as CDJ-2007-SC-948 on 30.8.2007 observed that Section 58 of the Transfer of Property Act does not speak of mortgage of an owner’s interest. If any interest in property can be created by reason of a transaction or otherwise which does not require registration, in our opinion, it may not be necessary to have a full title before such a mortgage is created by deposit of title deeds. In a case of this nature where valuable rights is created which may or may not confer an assignable right, the question requires clear determination having regard to the equitable principle in mind and would have far reaching consequences, as a large number of banks and financial institutions advance a huge amount only on the basis of allotment letters. Keeping in view the importance of the questions raised at the Bar, the question require the consideration by a larger bench so that an authoritative pronouncement can be made there upon”.

It is a well known fact that the apartments constructed by the government bodies or the builders in the present day context cannot be acquired without availing of the financial assistance from the financial institutions, who would require security for the same by way of mortgage of the property to be purchased from the amount so advanced. The question arises why the government bodies such as CIDCO or MAHADA cannot just have a fresh look to its terms and conditions inasmuch as CIDCO permits mortgage of the apartment but it contains a rider reading as

“it may please be noted that no lien of whatever nature will be created on the above apartment allotted to you unless you pay in full the sale price and other miscellaneous charges and execute agreement for sale with CIDCO. It is necessary for you to inform your employer/bank/financial institution, as the case may be, to inform to the corporation (CIDCO) the details of the housing loan sanctioned and released so as to enable us to take a note therein in our records.”

On the one hand permission to mortgage is granted and details are sought to take a note in the records, but on the other hand it refuses for the creation of any lien or the charge against the apartment. Is it not contradictory in itself. MAHADA goes a step further inasmuch as it issues only a provisional offer letter and the allotment letter is issued only on the payment of full sale consideration and the compliance of the other requirements. It is disputable that such a provisional offer letter will create any valuable right in the allottee, leaving aside the question of assigning of such a right yet to be determined by larger bench of the Hon’able Supreme Court of India. It would be appropriate that when the matter comes up for determination before the larger bench, the judgment of the Hon’able Supreme Court in the case of H.L.Joshi v/s. R.H.Shah reported as AIR-1975-SC-1470 wherein it has been held that the occupancy rights in a flat in a cooperative housing society are heritable transferable and attachable in an auction sale is brought to its notice.

Be that as it may, till the authoritative pronouncement of the larger bench of the Hon’able Supreme Court of India is available it would be advisable for the financial institutions to advance housing loans against the allotment letters issued by such government bodies on the basis of a collateral security of equal amount to their satisfaction as a stop-gap arrangement, till the sale deed in case of the apartment allotted by such government bodies is executed. Because if the judgment of the larger bench is not on expected lines, all such finance will become clean loans out the purview of SARFAECI Act and the legal action in default cases will add more weight on the existing over-burdened judicial system. Hence, it would be prudent for the financial institution to err on safer side.

Source https://accommodationtimes.com/home-loan-against-the-security-of-the-allotment-latters/

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.7824-7828 OF 2004 

SYNDICATE BANK    VERSUS   ESTATE OFFICER AND MANAGER (RECOVERIES) & ORS RESPONDENT(S)

How to prove right of easement?

On considering the rival submissions and on close scrutiny of the evidence, it would reveal that the plaintiff did not adduce satisfactory evidence to show that he has acquired easement by prescription. An easement can be acquired by prescription under Section 15 of the Easements Act.Every occupier of the land is prima facie entitled to the exclusive use and enjoyment thereof and of the natural advantages arising from its situation and environments without let or hindrance. Every right of easement claimed is a restriction on such exclusive right and is an evasion of it. Hence, the burden of proof of the element constituting a right of easement lies on the person who asserts that right and thereby invades the natural right of the occupier of the land on which the right is claimed. The law is jealous of a claim to an easement, and the burden is on the party asserting such a claim to prove it clearly. This, he must do by showing a grant conferring an easement in express term or by necessary implication, or where an easement is claimed by prescription, he must prove the facts essential to the acquisition of the prescriptive title. Thus, he must show that the user was open and notorious, that it was with the knowledge and acquisition of the owner of the servient tenement that the use was continuous and uninterrupted hostile and under a claim of right, exclusive and continued for the period requisite for the acquisition of an easement by prescription, without change or material variation. Where an easement is claimed as a partenant to certain land, the burden is on the party claiming it to show that the original grantee of an easement was the owner of the land in question at the time of the grant. When the party claiming the easement had made prima facie showing of a prescriptive title, it is then incumbent on the owner of the survient tenement to show by sufficient affirmative proof that the use has been by virtue of a licence or permission or any other defence which would destroy the prima facie showing. On the other hand, where the servient owner sets up the defence of bona fide purchaser and proves the purchase, payment for, and ownership of the land, the burden then shifts to the claimant to show that such owner had actual or constructive notice of the easement before the purchase. The question whether a cultivator has access to his field through the field of another has to be decided on the basis of convenience and not on the basis of acquisition of right of way by prescription. A right of way may be acquired by prescription where the same has been peaceably and properly enjoyed by any person claiming title thereto as an easement, and as of right, without any interruption and for 20 years. Thus, in the present case it is for the plaintiff to prove that the disputed path way was being used openly and peaceably for 20 years.

Bombay High Court

 

Tanba S/O Nusaji Mahajan vs Pandhari S/O Nusaji Mahajan on 5 May, 2004

Equivalent citations: 2004 (6) BomCR 782, 2004 (4) MhLj 109

Source https://www.lawweb.in/2016/07/how-to-prove-right-of-easement.html?m=1

Jurisdiction of Consumer Forum_State Commission

18.         No doubt, in the written version, an objection was also taken by the Opposite Parties, that as per Clause 35 of the Agreement, the Courts at Mohali and the Punjab and Haryana High Court at Chandigarh alone, shall have the exclusive Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In  Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between  Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. In  Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.

19.         In  Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D. Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to  Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here, that even if, it is assumed for the sake of arguments, that the complainant had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to   him, to file the complaint, under the provisions of the Act. The submission of Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

State Consumer Disputes Redressal Commission U.T., CHANDIGARH

Harmohinder Singh vs Puma Realtors Pvt. Ltd. on 10 March, 2017

https://indiankanoon.org/doc/133018129/                    

No condonation of delay_judgments

Hon’ble Supreme Court in Bikram Dass Versus Financial Commissioner and others, AIR 1977 Supreme Court 1221 has held as under:-

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his right must explain every day’s delay.”

The grounds taken in the application are a sad commentary on the working of the employees of the appellants and these grounds are manifestation of the laxity, negligence and inefficiency.  To accept such grounds as sufficient cause for condonation of delay would tantamount to putting premium on the parties own acts of negligence and non challance.  So, this Commission does not find it a fit case to condone the delay of 325 days. Hence, the application for condonation of delay is dismissed.”

Hon’ble Supreme Court in “Anshul Aggarwal Vs. New Okhla Industrial Development Authority” [2012(2) CPC (SC)] observed as under:-

“While deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing the appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated Petitions filed against the orders of the Consumer Foras.”

In “R. B. Ramalingam Vs. R. B Bhavaneshwari, 2009 (2) Scale 108”, the Apex Court has observed thus:-

“We hold that in each and every case, the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the Petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”

In “Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361”, it has been observed:-

“It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

Leading case law in respect of affidavit in lieu of examination in chief

The result of this discussion is that:

(a) No Evidence Affidavit under Order XVIII Rule 4 of the CPC can be allowed to be 'withdrawn'. It is evidence as soon as it is affirmed.

(b) The Evidence Affidavit cannot contain matter that is irrelevant, inadmissible or both; or is in the nature of arguments, submissions or prayers. This is not 'evidence' as required by law. Were it to be attempted from the witness box, it would not be permitted; and hence it cannot be allowed to creep in merely because it happens to be placed on affidavit.

(c) It is permissible, and in fact often necessary, for a Court, with a view to expedition and to avoid a needlessly protracted cross-examination on irrelevancies and matter that is not 'evidence' to order that any such material that does not constitute evidence be struck off or be ordered or directed to be ignored without fear of adverse consequence.

(d) Where an Evidence Affidavit is filed and the witness or deponent, though otherwise available, is not made available for cross-examination, the well-established consequences in law will follow. Specifically, the opposite party will be entitled to submit that an adverse inference be drawn against such a witness or the party who fails to produce that witness for cross- examination; and, further, that should that evidence contain any admissions, these may be used by the other party; but so much of the evidence as is against the party entitled to cross-examination but which has gone untested for want of production of the witness will be liable to be ignored.

Bombay High Court

Banganga Co-Op.Hsg.Soc.Ltd vs Mrs.Vasanti Gajanan Nerurkar on 15 June, 2015

Bench: G.S. Patel

Citation; AIR 2015(NOC)1132 Bom

http://www.lawweb.in/2015/10/leading-case-law-in-respect-of.html

NCDRC_deemed to have condoned the default

NCDRC has recently delivered judgment dated 21-11-2017 in CC No. 1730 OF 2016 tilted as PRAVEEN @ PARVEEN KUMAR JAIN & ANR v/s  EARTH INFRASTRUCTURES LTD. & ANR by adopting “deemed condoned theory” against the builder instead of customer. Below is the relevant Para of the judgement:  

“5.   As regards, the alleged default on the part of the complainant, it would be seen form the payment plan agreed between the parties that 65% of the BSP was required to be paid by the start of 4^th floor work.  The (viii) installment was payable at the start of the 7^th floor work, (ix) installment was payable at the start of 10^th floor (x) installment was payable at the start of 12^th floor work.  The complainant made last payment in July, 2015, as would be evident from the Sales Customer Ledger of the opposite party.  He paid more than 65% of the Basic Sale Price by that date.  There is no evidence or even an allegation that 7^th floor work had already started by the time last payment was made by the complainant.  The written version filed by the opposite party does not show when the 7^th floor work, 10^th floor work and 12^th floor work started.  It is also not known whether the aforesaid work started before filing of this complaint or after filing of this complaint.  In the absence of the aforesaid particulars, and the proof thereof, the complainant cannot be said to be a defaulter in payment of viii, ix and x installments.  In any case, if the complainant was in default in making payment, the opposite party ought to have cancelled his installment and could even have forfeit the Earnest Money as per the terms and conditions of the Buyers agreement.  That having not been done, the opposite party is deemed to have condoned the aforesaid default.  Consequently, the relief sought by the complainant cannot be denied on account of the aforesaid alleged defaults.”

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

CONSUMER CASE NO. 1730 OF 2016

1. PRAVEEN @ PARVEEN KUMAR JAIN & ANR. E-184, 2ND FLOOR, NARAINA VIHAR, OPPOSITE GYAN MANDIR PUBLIC SCHOOL, NEW DELHI-110028 2. . . .	...........Complainant(s)
Versus
1. EARTH INFRASTRUCTURES LTD. & ANR. (THROUGH ITS MD) B-100, NARAINA INDUSTRIAL AREA, PHASE-1, DELHI-110028 2. EARTH INFRASTRUCTURES LTD. EARTH COPIA, SECTOR 112, GURGAON, HARYANA.	...........Opp.Party(s)

BEFORE:
	HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER

For the Complainant :

Ms. Kajal Chandra, Advocate Ms. Prerna Chopra, Advocate Mr. Viren Kapur, Advocate

For the Opp.Party :

Mr. Himanshu, Advocate for Mr. Abhay Kumar, Advocate

Dated : 21 Nov 2017

ORDER
JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)      The complainant booked a residential flat with the opposite party in a project namely ‘Earth Copia’, which the opposite party was to develop in Sector-112 of Gurgaon.  The opposite party allotted residential Unit No.404 in Tower G having super area of 1835 sq. ft. to him for a consideration of Rs.81,78,580/-.  The complainants having opted for a construction linked payment plan, the aforesaid amount was payable in the following manner:       At the time of booking : 10% of the BSP (ii)      Within 45 days from booking : 15% of the BSP Within 120 days from booking : 10% of the BSP plus 50% of   the EDC and IDC At start of Excavation Work : 10% of the BSP At start of Basement Slab : 10% of the BSP plus 50% of the EDC and IDC At start of 2nd floor work : 5% of the BSP At start of 04th floor work : 5% of the BSP At start of 07th floor work : 5% of the BSP plus 50% of  3rd and 4th floor PLC plus 50% of Park Facing PLC plus 50% of road / corner facing PLC At start of 10th floor work : 5% of the BSP At start 12th floor work: 5% of BSP At the start of 14th Floor work : 5% of the BSP At start of Internal Plaster : 5% of the BSP plus 50% of 3rd and 4th floor PLC plus 50% of Park Facing PLC plus 50% of road / corner facing PLC On laying of flooring : 5% of the BSP On offer of Possession : 5% plus 100% of ECC plus 100% of IFMS plus 100% of EEC and FFC plus 100% of Power back-up charges”. 2.      The complainant has paid a sum of Rs.58,74,142.00 to the opposite party in installments, the last payment having been made on 25.7.2015. The possession as per the buyers agreement dated 31.05.2012 was to be delivered within three years from the execution of the said agreement, though the opposite party was allowed a grace period of six months.  Thus, including the grace period, the possession ought to have been delivered by 30.11.2015.  The grievance of the complainant is that despite they having paid a sum of Rs.58,74,142.00 to the opposite party, the construction of the flat allotted to him is not even complete.  The complainants are therefore before this Commission, seeking refund of the entire amount paid along with compensation the form of simple of interest. 3.      The complaint has been resisted by the opposite party which has taken a preliminary objection that this Commission does not have the pecuniary jurisdiction to entertain the complaint.  It is also alleged that the complainant has defaulted in making payment in terms of the payment plan agreed by him since 80% of the sale consideration has become due from him.  It is further stated in the reply to the complaint that the construction has already reached upto 12th floor.  It is however, not disputed that the construction of the flat allotted to the complainant is not complete, though the learned counsel for the opposite party states that the construction is likely to be completed by April, 2018.  He further states that the Directors of the opposite party are already in custody. 4.      In terms of Section 21 of the Consumer Protection Act, this Commission possesses the requisite pecuniary jurisdiction to entertain the complaint, where the value of the goods or services, as the case may, and the compensation, if any, claimed by the complainants exceeds Rupees one crore.  As held by a Three-Members Bench of this Commission in Ambrish Kumar Shukla Vs. Ferrous Infrastructure Pvt. Ltd. CC No. 97 of 2016, decided on 07.10.2016, the value of the services in such cases means, the aggregate consideration agreed to be paid by the buyer to the builder.  Therefore, the agreed sale consideration in this case, being Rs.81,78,580/-, the aforesaid would be value of the services hired or availed by the complainant.  If compensation claimed by the complainant is added to the aforesaid amount, the aggregate comes to more than Rupees one crore.  This Commission therefore possesses the requisite pecuniary jurisdiction to entertain the complaint. 5.      As regards, the alleged default on the part of the complainant, it would be seen form the payment plan agreed between the parties that 65% of the BSP was required to be paid by the start of 4th floor work.  The (viii) installment was payable at the start of the 7th floor work, (ix) installment was payable at the start of 10th floor (x) installment was payable at the start of 12th floor work.  The complainant made last payment in July, 2015, as would be evident from the Sales Customer Ledger of the opposite party.  He paid more than 65% of the Basic Sale Price by that date.  There is no evidence or even an allegation that 7th floor work had already started by the time last payment was made by the complainant.  The written version filed by the opposite party does not show when the 7th floor work, 10th floor work and 12th floor work started.  It is also not known whether the aforesaid work started before filing of this complaint or after filing of this complaint.  In the absence of the aforesaid particulars, and the proof thereof, the complainant cannot be said to be a defaulter in payment of viii, ix and x installments.  In any case, if the complainant was in default in making payment, the opposite party ought to have cancelled his installment and could even have forfeit the Earnest Money as per the terms and conditions of the Buyers agreement.  That having not been done, the opposite party is deemed to have condoned the aforesaid default.  Consequently, the relief sought by the complainant cannot be denied on account of the aforesaid alleged defaults. 6.      It is an admitted position that the construction of the flat allotted to the complainant is not complete even till date, though more than two years have already expired from the time period stipulated for completing the said construction.  The complainant therefore cannot be made to wait indefinitely for the possession of the flat allotted to him.  This is more so, considering the situation where even the Directors of the builder company are said to be in judicial custody.  The complainants therefore are entitled to refund of the entire amount paid by them along with appropriate compensation. 7.      The learned counsel for the complainants states on instructions from one of the complainants, who is present in the Court, that though the complainants have claimed compensation in the form of simple interest @ 24% per annum, they in order to avoid further litigation in the matter are restricting their claim to refund of the principal amount paid by them along with compensation in the form interest @ 10% per annum and the cost of litigation. 8.      The complaint is therefore disposed of with the following directions: (i)      The opposite party shall refund the entire principal amount of Rs.58,74,142.00 received from the complainant along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the entire amount long with compensation in the form of simple interest is refunded. (ii)      The opposite party shall pay Rs.25,000/- as the cost of litigation to the complainants (iii)     The payment in terms of this order shall be made within three months from today.

......................J

V.K. JAIN

PRESIDING MEMBER

Section 12 (1) (c) of CP Act_Meaning of same interest_different consideration for different area at different rates and in different years

Below is the judgment of NCDRC wherein the Hon’ble Commission said  “…In the case in hand, different complainants have booked their apartments/ units for different consideration for different area at different rates and in different years.  In such circumstances, it cannot be held that each complainant has got same interest on same terms & conditions………”

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

CONSUMER CASE NO. 656 OF 2015

1. ANKUR GOSWAMI & 13 ORS.	...........Complainant(s)
Versus
1. SUPERTECH LIMITED & ANR.	...........Opp.Party(s)

BEFORE:
	HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
	HON'BLE MR. PREM NARAIN, MEMBER

For the Complainant :

Shri Kumar Dushyant Singh & Shri Shravan Kumar Yammanur, Advocates.

For the Opp.Party :

Dated : 05 May 2016

ORDER
Pronounced on   5th May, 2016 ORDER PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER           This complaint has been filed by 14 complainants against opposite party alongwith application under Section 12 (1) (c) of Consumer Protection Act.           Brief facts of the case are that complainants are buyers/allottees/ owners/ consumers who have booked/purchased apartments/units in opposite party project after making initial payments.  Complaint has been filed through complainant No. 1 to act as representative on behalf of all the complainants having same interest.  It was further submitted that complainants booked area between 1550 sq. ft. to 2385 sq. ft. @ Rs. 2905/- to Rs. 5,384/-.  Complainants have made major payment as mentioned in the complaint and have paid more than Rs. 5.00 crores.  Allotment of apartments was made in the year 2011-2013 but still possession has not been handed over though grace period for possession has also elapsed.  As per agreement, opposite party is liable to pay penalty of Rs. 5.00/sq. ft./pm to the complainants.  Alleging deficiency on the part of opposite parties, complainants filed complaint for direction to opposite party to complete construction of apartments/units and hand over possession to the complainants and further pay interest @ 24% p.a. on total amount paid Rs.5,20,55,098/- and further to pay escalation charges and compensation of Rs. 10.00 lakhs to each of the complainants towards mental agony and harassment and Rs. 1.00 lakh as cost of litigation to each of the complainants.           Heard Learned Counsel for the complainant for admission purposes and perused record.           Learned Counsel for complainants submitted that as complainants are having same interest on the same terms and conditions, complaint under Section 12 (1) (c ) of the Consumer Protection Act is maintainable.           Perusal of record reveals that complainant No. 1 booked apartment for a sum of Rs. 1,14,89,935/- against which he has made payment of Rs. 96,38,647/-.  As far other apartments of other complainants are concerned, they are ranging from Rs. 38.00 lakhs to Rs. 76.00 lakhs.  Admittedly, this Commission has pecuniary jurisdiction to entertain complaints only if value of goods or services and compensation claimed exceeds Rs. 1.00 crore.  Value of goods alongwith compensation claimed by Complainant No. 2 to 14 does not fall within the pecuniary jurisdiction of this Commission and in such circumstances, their complaints are not maintainable before this Commission and they are supposed to file their complaints before appropriate State Commission.  Had complainant Nos. 2 to 14 filed complaints separately, they could not have been entertained by this Commission for want of pecuniary jurisdiction.  Under the garb of Section 12 (1) (c) or Section 13 (6) of Consumer Protection Act which are primarily meant for common services, e.g., facility of lift, deficiency in maintaining common areas or common facilities, complaints are not maintainable before this Commission merely because complainant No. 1’s complaint is maintainable before this Commission.           Learned Counsel for complainant has placed reliance on judgment of this Commission in Complaint No. 282 of 2012- Dewan Ashwani & Ors.  Vs. Unitech Reliable Projects Pvt. Ltd.; in which complaint comprising many complaints was allowed as each complainant has got same interest on same terms & conditions though value of their apartments were ranging from Rs. 55.00 lakhs to Rs. 67.00 lakhs.  It was further submitted by him that SLP filed by opposite party was dismissed by Hon’ble Apex Court.  Perusal of order of Hon’ble Apex Court reveals that appeal was dismissed as withdrawn and in such circumstances, it cannot be said that order of this Commission was upheld on merits.  In the case in hand, different complainants have booked their apartments/ units for different consideration for different area at different rates and in different years.  In such circumstances, it cannot be held that each complainant has got same interest on same terms & conditions and we do not agree with law laid down by coordinate bench in Dewan Ashwani’s case (supra).           Learned Counsel for complainant submitted that if two coordinate benches differ in their opinion, matter is to be referred to larger bench as held by Hon’ble Apex Court in 2015 (319) ELT622 (SC)- Commnr. of Customs and Central Excise  Vs. Kraps Chem Pvt. Ltd. & Ors.;  in which it was held that if two coordinate benches in two cases render conflicting opinion, the only course of action open for Tribunal is to refer matter to larger Bench.  The aforesaid case is not applicable    as there is no conflicting judgment of other Bench rather this Bench is taking different view from the view taken by other coordinate Bench in Dewan Ashwani’s case (supra).  In such circumstances, matter is not required to be referred to larger Bench.           Only complainant No.1’s case falls within the pecuniary jurisdiction of this Commission and complaints of other complainant Nos. 2 to 14 are not maintainable before this Commission and merely by moving application under Section 12 (1) (c) of Consumer Protection Act, complaints filed by other complainants are not maintainable before this Commission.  In such circumstances, only the complaint filed by complainant No. 1 pertaining to his apartment is maintainable before this Commission and complaint is dismissed for mis-joinder of parties with liberty to complainant No. 1 to file fresh complaint.  Liberty is also granted to other complainants to move to appropriate Forum for relief, if they so desire.                                                                                                 -sd/-

......................J

K.S. CHAUDHARI

PRESIDING MEMBER

......................

PREM NARAIN

MEMBER

Source : http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FCC%2F656%2F2015&dtofhearing=2016-05-05