Govt. / Public / Statutory bodies _condonation of delay_Limitation

Please find below an order containing few judgment on the above said issue

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION  PETITION  NO.   3620    OF   2012

with

I.A. No.01 of 2012 (Stay Application)

I.A. No.02 of 2012 (Condonation of Delay)

 (From the order dated  24.4.2012  in Appeal No.11/1995 

  of the State Commission, Delhi)

Delhi Development Authority

Through its Director (H-1)

Vikas Sadan, I.N.A.,

New Delhi                                                                   …Petitioner

Vs.

H.K. Gorawara

S/o Late Shri K.C. Gorowara

R/o B-1 A/1-B,

Janakpuri,

New Delhi – 110 058.                                                    ….Respondent

BEFORE:

HON’BLE MR. JUSTICE  V.B. GUPTA, PRESIDING MEMBER

HON’BLE MRS. REKHA GUPTA,  MEMBER

 

For the Petitioner             :         Ms. Arti Bansal, Advocate 

Pronounced on  :  14^th February, 2013                 

ORDER

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

It is a common experience of this Commission, that Govt./Public/Statutory bodies have taken a vow that they will not file Revisions/Appeals unless the same are to be accompanied by application for condonation of delay. There is a perception in the mind of Statutory Bodies/Authorities who are having full-fledged legal departments, that they are above law and provisions of Limitation does not apply to them.  That is why, invariably in more than 90% of the Petitions/Appeals filed by Govt. Bodies, are being accompanied by application for condonation of delay.

2.      The admitted facts in the present case are that respondent/complainant being a Senior Citizen, aged more than 73 years old, got himself registered with the petitioner/O.P in 1979 for allotment of an MIG flat.  After a  long delay of 17 years, respondent was allotted MIG flat no.92 (Ist floor) in Sector – 23, Dwarka by the petitioner on 11.11.1996. A sum of Rs.3,06,366/- (being 50% of the total amount) was deposited by the respondent with petitioner on 8.3.1997.  Due to lack of basic necessities of water and electricity, the flat was not handed over to the respondent and surprisingly the file of the flat was also misplaced.  Since, possession of the flat was not given to the respondent till 2008,  he filed a complaint under section 12 of the Consumer Protection Act, 1986 (for short, ‘Act’). District Consumer Disputes Redressal Forum-II, New Delhi (for short, “District Forum”) vide order dated 30.8.2010, allowed the complaint and passed the following directions ;

(i)     The OP i.e. DDA shall intimate the complainant within 30 days from the balance lump sum amount payable by the complainant as per his request dated 4.5.2001 after adjusting the amount of Rs.3,06,366/- deposited with DDA in April 1997.

(ii)   After depositing the balance lump sum amount by the complainant, DDA shall hand over the possession of the flat to the complainant without any delay.

(iii)  OP shall also pay Rs.25,000/- as compensation for mental agony harassment & Sheer suffering inclusive of the litigation charges.”

3.      Aggrieved by order of the District Forum, petitioner filed appeal before the State Commission which dismissed its appeal, vide impugned order dated 24.4.2010 on the ground that there was delay of 177 days and reasons mentioned in the application for condonation of delay are wholly insufficient and consequently unacceptable.

4.        Petitioner being negligent in pursuing its appeal before the State Commission ought to have handed over possession of the flat which was booked by a Senior Citizen in 1973.  However, petitioner being a statutory authority has chosen to further harass and prolong the agony of the old respondent by filing the present revision petition.

5.      We have heard the learned counsel for the petitioner and gone through the record.

6.      The main plank of petitioner’s argument  is that  petitioner being a Government organization, matter has to be examined at various levels and in that process delay has occurred.  Since, there were sufficient grounds for condonation of delay, State Commission ought to have condoned the delay. 

7.      While rejecting the application, State Commission, in its impugned order observed;

“4.      It is admitted by the appellant in its application that there is a delay of 167 days in filing the appeal. However, if limitation is counted from the date of order, then there is delay of 177 days. The only reason given for the delay is on account of some departmental internal problems. This reason does not provide any justified ground for condonation of such a long delay in filing the appeal. The Law of limitation calls for explanation for each day delay after expiry of period of limitation, an explanation for delay has to be rational, reasonable and realistic and to be acceptable. Delay in official procedure is no exception provided in the proviso given under Section 15 of the Consumer Protection Act, which provides for limitation. The reason given, there is wholly insufficient and consequently unacceptable. The application for condonation of delay is, therefore, rejected.”

8.   It is well settled that “sufficient cause”  for condoning  the delay in each case is a question of fact.

9.  In  Ram Lal  and  Ors.  Vs.  Rewa  Coalfields  Ltd., AIR  1962 Supreme Court 361, it has been observed;

“It is, however, necessary to emphasize 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 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.”

10.    Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;

          “There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

11.    In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it

has   been observed;

              “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.”

12.    Hon’ble Supreme Court after exhaustively considering the case law on the aspect  of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as under;

      “We  have  considered the respective submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the  legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”      

13.    Apex Court in Anshul Aggarwal  Vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has observed ;

       “It is also apposite to observe that 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 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”.

14.       Recently, Hon’ble Supreme Court in Post Master General and others vs. Living Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held;

“24.  After referring various earlier decisions, taking very lenient  view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under;

     “29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

       30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.”

          The Court further observed;

 “27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

29.     In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

 30.  Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.

31.             In view of our conclusion on Issue (a), there is no need to   go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.  

32.  In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs”.

15. The observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case.

16.    Even, after getting adverse findings from two fora below, petitioner has chosen not to settle the claim of Senior Citizen but has dragged him to this highest fora under the Act.  It is not that every order passed by fora below are to be challenged by a litigant even when the same are based on sound reasoning.

17.    It is a well-known fact that Courts across the country are saddled with large number of cases. Public Sector Undertakings indulgences further burden them. Time and again, Courts have been expressing their displeasure at the Government/Public Sector Undertakings compulsive litigation habit but a solution to this alarming trend is a distant dream. The judiciary is now imposing costs upon Government/Public Sector Undertaking not only when it pursue cases which can be avoided but also when it forces the public to do so.

18.    Public Sector Undertakings spent more money on contesting cases than the amount they might have to pay to the claimant. In addition thereto, precious time, effort and other resources go down the drain in vain. Public Sector Undertakings are possibly an apt example of being penny wise, pound-foolish. Rise in frivolous litigation is also due to the fact that Public Sector Undertakings though having large number of legal personnel under their employment, do not examine the cases properly and force poor litigants to approach the Court.

19.    The Apex Court in Bikaner Urban Improvement Trust Vs. Mohal Lal 2010 CTJ 121 (Supreme Court) (CP) has made significant observations which have material bearing, namely,

“4. It is a matter of concern that such frivolous and unjust litigation by Governments and statutory authorities are on the increase. Statutory Authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to the corrected.

5.       This Court has repeatedly expressed the view that the Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf.

5.1     In Dilbagh Rai Jarry V. Union of India, 1973 (3) SCC 554, where this Court extracted with approval, the following statement (from an earlier decision of the Kerala High Court.):

“The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State’s interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak. Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations, which move private parties to fight in Court. The lay-out on litigation costs and execution time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.”

             5.2 In Madras Port Trust vs. Hymanshu International by its Proprietor V. Venkatadri (Dead) by L.R.s (1979) 4 SCC, 176, held:

“2. It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable.”

5.3 In a three-Judge Bench judgment of Bhag Singh & Ors.v.Union Territory of Chandigarh through LAC, Chandigarh, (1985) 3 SCC 737.

“3. The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen.”

6. Unwarranted litigation by Governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They are:

(i)           All claims against the Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest Court of the land.

(ii)          If taking a decision on an issued could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secure a decision.

The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of the Governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers-in-charge of litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of improper motives for any decision-making. Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision making to Courts and Tribunals. The Central Government is now attempting to deal with this issue by formulating realistic and practical norms for defending cases filed against the Government and for filing appeals and revisions against adverse decisions, thereby, eliminating unnecessary litigation. But, it is not sufficient if the Central Government alone undertakes such an exercise. The State Governments and the statutory authorities, who have more litigations than the Central Government, should also make genuine efforts to eliminate unnecessary litigation. Vexatious and unnecessary litigation have been clogging the wheels of justice, for too long making it difficult for courts and Tribunals to provide easy and speedy access to justice to bonafide and needy litigants.

7.     In this case, what is granted by the State Commission is the minimum relief in the facts and circumstances, that is to direct allotment of an alternative plot with a nominal compensation of Rs.5,000/- . But instead of remedying the wrong, by complying with the decision of the Consumer Fora, the Improvement Trust is trying to brazen out its illegal act by contending that the allottee should have protested when it illegally laid the road in his plot. It has persisted with its unreasonable and unjust stand by indulging in unnecessary litigation by approaching the National Commission and then this Court. The Trust should sensitize its officers to serve the public rather than justify their dictatorial acts. It should avoid such an unnecessary litigation.”

20.    In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed:

“Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law’s delay and bringing bad name to the judicial system.”

21.    Thus, gross negligence, deliberate inaction and lack of bonafides is imputable to the petitioner.  The State Commission in its wisdom rightly held that there are no sufficient grounds for condoning the long delay of 177 days in filing of appeal before it.  We find no reason to disagree with the findings given by the State Commission.  There is no illegality or infirmity in the impugned order passed by State Commission. Present petition has been filed just to harass and prolong the agony of a Senior Citizen and to deprive him the fruits of award passed by the District Forum, which deserves to be dismissed with punitive costs. Accordingly, we dismiss the present revision petition with costs of Rs.50,000/-(Rupees Fifty Thousand only).    

           

22.    Out of the total cost, Rs.25,000/- (Twenty five thousand only) be paid to the respondent by way of demand draft.  Balance cost of Rs.25,000/- (Twenty five thousand only) be deposited in the name of “Consumer Welfare Fund” as per Rule 10A of the Consumer Protection Rules, 1987, within four weeks from today.  In case, petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% p.a. till its realization.

23.    Meanwhile, petitioner shall recover the costs amount from the salaries of the delinquent officers who have been pursuing this merit less and frivolous litigation, with the sole aim of wasting the public exchequer. The affidavit giving the details of the officers/officials from whose salaries the costs have been recovered be also filed within four weeks.

24.    Pending applications, if any stand disposed of.

25.    List on 12.4.2013 for compliance.

                                                                                 …..…………………………J

                                         (V.B. GUPTA)

                            PRESIDING MEMBER

                                                                                         …..…………………………

                                   (REKHA GUPTA)

                                                                                                                              MEMBER

Sg/

A writ can be filed by a power of attorney holder

Full bench of Allahabad High Court for its Lucknow bench, referring various judgments, has ruled that a writ can be filed by a power of attorney holder. At the same time, few safeguards have also been provided for filing writ petition by power of attorney holder.

Below is relevant portion of the judgment:

“When a writ petition under Article 226 of the Constitution is instituted through a power of attorney holder, the holder of the power of attorney does not espouse a right or claim personal to him but acts as an agent of the donor of the instrument. The petition which is instituted, is always instituted in the name of the principal who is the donor of the power of attorney and through whom the donee acts as his agent. In other words, the petition which is instituted under Article 226 of the Constitution is not by the power of attorney holder independently for himself but as an agent acting for and on behalf of the principal in whose name the writ proceedings are instituted before the Court. 

Having held so, we must, at the same time, emphasize the necessity of observing adequate safeguards where a writ petition is filed through the holder of a power of attorney. These safeguards should necessarily include the following: 

(1) The power of attorney by which the donor authorises the donee, must be brought on the record and must be filed together with the petition/application; 

(2) The affidavit which is executed by the holder of a power of attorney must contain a statement that the donor is alive and specify the reasons for the inability of the donor to remain present before the Court to swear the affidavit; and 

(3) The donee must be confined to those acts which he is authorised by the power of attorney to discharge.“

Details of the judgment:

CONSOLIDATION No. - 534 of 2002 titled as  Syed Wasif Husain Rizvi v/s Hasan Raza Khan & 6 Ors dated 22.1.2016.

Allahabad High Court direction for creation of post in development authorities to redress public grievances and pay damages or compensation

The Lucknow Bench of the Hon’ble Allahabad High Court directed to create post in development authorities to redress public grievances and pay damages or compensation or take decision with regard to payment of interest in case the land or plot is not delivered immediately after deposit of cost by the allottees

Para 110.

“However, keeping in view the startling revelation and plight of peoples like the present one, facing high handedness imparted by the development authorities, it shall be appropriate that to secure public interest, the Government may be directed to consider to create appropriate post or forum in development authorities, and there should be an officer having been authorised to deal with the public grievances and pay damages or compensation or take decision with regard to payment of interest in case the land or plot is not delivered immediately after deposit of cost by the allottees. Ordinarily in case after deposit of cost of plot or land, if possession is not delivered within three weeks consumers must be paid interest.”

Details of the matter:

Case :- MISC. BENCH No. - 1855 of 2004 

Kiran Yadav  v/s Commissioner, Lucknow & 2 Ors. 

Dated : 16.5.2013

Stamp Duty_ ascertainment of Mortgage and performance guarantee/ security deed

There is no term namely “performance guarantee” in the stamp act. The term “security bond / mortgage deed” has been used in the stamp act to secure the due performance of a contract i.e. performance guarantee. Proper Stamp Duty payable upon mortgage deed is same duty as a Conveyance [No. 23 clause (a)] or a Bond (No. 15) for the amount secured or One hundred rupees as the case may be depending upon the nature of the mortgage deed as stipulated in the UP Stamp Act.

Below is a bird eye view on the relevant statutory provisions with regard to mortgage and stamp duty applicable to it. 

The term "mortgage", "mortgagor", "mortgagee", "mortgage-money" and "mortgage-deed" have been defined under Section 58(a) of Transfer of Property Act, 1882 read as under: 

"58. "Mortgage", "mortgagor", "mortgagee", "mortgage-money" and "mortgage-deed" defined.—

(a) A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. 

The transferor is called a mortgagor, the transferee s mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money and the instrument (if any) by which the transfer is effected is called a mortgage-deed." 

My Submission:

Transfer of an Interest:

1 1. It means the transfer of some right belonging to the mortgagor in respect of the property.

2 2. Ownership consists of a bundle of rights, such as, right to possess, right to enjoy, sell, etc.

3 3. It is enough if one of these rights is transferred. The right transferred may vary

(i)    It may be the right to sell or

(ii)  It may be the right to enjoy or 

(iii) It may be the right to own etc

4 4. The nature of the right transferred is matter of no consequence so long as some right is transferred.

The term "mortgage deed" has been defined under UP stamp Act vide Section 2(17) reads as under: 

"2.(17) 'mortgage deed'.--Mortgage deed includes every instrument whereby, for the purpose of securing money advanced, or to be advanced, by way of loan, or an existing, or future debt, or the performance of an engagement, one person transfers, or creates to, or in favour of another, a right over, or in respect of specified property."

My Submission:

Immovable property can be mortgaged either for the purpose of securing

a a) money or

b b)  the performance of an engagement

Different stamp duty under different article number have been stipulated by legislature in stamp act upon aforesaid mortgage.

Article 40 is applicable only to those mortgage deeds through money has been secured. This can be ascertain from the fact that proper stamp duty under article 40  upon mortgage is either

    a) or a consideration equal to the amount secured or

    b) for the amount secured

depending upon status of possession of the mortgaged immovable property.

Article 40 is applicable only to those mortgage deeds which has been executed to secure

   a)  the due performance of a contract or

   b)  the due discharge of a liability

This can be ascertained from the description of the instrument and proper stamp duty given schedule 1-B of the stamp act.

In the light of aforesaid if mortgage has been for securing money, stamp duty would be payable under article 40 and if mortgage has been for securing the performance of an engagement, stamp duty would be payable under article 57.

SCHEDULE I-B

[See section 3]

STAMP-DUTY ON INSTRUMENTS UNDER THE INDIAN STAMP ACT, 1899 AS

AMENDED UPTO DATE IN ITS APPLICATIOIN TO UTTAR PRADESH.

NOTE- The Articles in Schedule I-B are numbered so as to correspond with similar Articles in Schedule I of Act no.2 of 1899.

Article No.	Description of instrument	Proper stamp duty
40.	MORTGAGE-DEED, not being AN AGREEMENT RELATING TO DEPOSIT OF TITLEDEEDS, PAWN OR PLEDGE (NO. 6), BOTTOMRY BOND (NO. 16), MORTGAGE OF A CROP (NO. 41), RESPONDENTIA BOND (NO. 56), OR SECURITY BOND (NO. 57) -
	(a) when possession of the property or any part of the property comprised in such deed is given by the mortgagor or agreed to be given;	The same duty as a Conveyance [No. 23 clause (a)] for a consideration equal to the amount secured by such deed.
	(b) when possession is not given or agreed to be given as aforesaid;	The same duty as a Bond (No. 15) for the amount secured by such deed.
	Explanation: A mortgagor who gives to the mortgagee a power-of- attorney to collect rents or a lease of the property mortgaged or part thereof, is deemed to give possession within the meaning of this Article.
	(c) When a collateral or auxiliary or additional or substituted security, or by way of further assurance for the above-mentioned purpose where the principal or primary security is duly stamped – for every sum secured not exceeding Rs.1,000;	Ten rupees
	and for every Rs.1,000 or part thereof secured in excess of Rs.1,000.	Ten rupees
	Exemptions  1)    Instruments, executed by persons taking advances under the Land Improvement Loans Act, 1883 (19 of 1883), or the Agriculturists' Loans Act, 1884 (12 of 1884), or by their sureties as security for the repayment of such advances.  2)    Letter of hypothecation accompanying a bill of exchange.
57.	SECURITY BOND OR MORTGAGE DEED, executed by way of security for the due execution of an office, or to account for money or other property received by virtue thereof or executed by a surety to secure the due performance of a contract or the due discharge of a liability- (a) when the amount secured does not exceed Rs.1,00	Ten rupees
	b) in any other case	One hundred rupees.
	Exemptions  Bond or other instrument, when executed- a)    by headmen nominated under rules framed in accordance with the Bengal Irrigation Act, 1876 (Bengal Act 3 of 1876), section 99, for the due performance of their duties under that Act; b)    by any person for the purpose of  guaranteeing that the local income derived from private subscriptions to a charitable dispensary or hospital or any other object of public utility shall not be less than a specified sum per mensem; c)    under No. 3A of the rules made by the State Government under section 70 of the Bombay Irrigation Act, 1879 (Bombay Act 5 of 1879); d)    executed by persons taking advances under the Land Improvement Loans Act, 1883 (19 of 1883), or the Agriculturists Loans 'Act, 1884 (12 of 1884),or by their sureties, as security for the repayment of such advances; e)    executed by officers of the Government or their sureties to secure the due execution of an office or the due accounting for money or other property received by virtue thereof.

Property - Mortgage - Transfer of Property Act, 1882 _on the basis of allotment letter and in absence of any execution and registration of sale deed

Matter on subjected issue has been referred to larger bench for consideration.

Below is relevant notes on the matter on subjected as published by Manupatra

Property - Mortgage - Transfer of Property Act, 1882 - State Government allotted land to company for setting up of industrial unit - Company paid 50 % of total cost of allotted land - State Government permitted company to mortgage half of the allotted land to secure financial assistance for the project - Company mortgaged the land in favour of appellant bank - Later respondent purported to cancel a part of land allotted to company on ground that it was disputed property - Appellant Bank intended to enforce its charge on the property which had been created - Whether in absence of any execution and registration of sale deed by the State or respondent No. 1 in favour of the company any interest in the land could be created - Matter referred to larger bench for consideration.

Below is relevant portion of the judgment:

The principal question, which, therefore, requires consideration is as to whether for satisfying the requirements of Section58(f) of the Transfer of Property Act, it was necessary to deposit documents showing complete title or good title and whether all the documents of title to the property were required to be deposited. A' fortiori 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.

Para 30. There cannot be any doubt whatsoever that in absence of a registered deed of sale, the title to the land does not pass, but then what would not be conveyed is the title of the estate and not the allotment and possession itself.

Para 31. It would, therefore, appear that there is no clear authority on the question as to whether in absence of any title deed in terms whereof the mortgagee obtained title by reason of a registered deed can be a subject- matter of mortgage. 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. A person may acquire title to a property irrespective of the nature thereof by several modes e.g. a lease of land which does not require registration; (ii) by partition of a joint family property by way of family settlement, which does not require registration.

Para 32. In a case of this nature where valuable right 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 institution advance a huge amount only on the basis of allotment letters. If such allotment letters are to be totally ignored, the same may deter the banks in making advances which would in effect and substance create a state of instability.

Court : Supreme Court

Civil Appeal Nos. 7824-7828 and 7833-37 of 2004

Decided On: 30.08.2007 

titled as  Syndicate Bank v/s Estate Officer and Manager, A.P.I.I.C. Ltd. and Ors.

Citation: AIR2007SC3169, 2007(6)ALD53(SC), 2007 (69) ALR 175, 2007 (4) AWC 4011 (SC), (2007)5CompLJ98(SC), (2007)8SCC361, [2007]10SCR619, 2007(2)UJ1090

Lease of immovable property for a period of less than a year is compulsory registrable unless concerned State Government notifies otherwise

Lease of immovable property for a period of less than a year is compulsory registrable unless concerned State Government notifies otherwise

Transfer of property act hereinafter referred as TP Act categorically says about lease of immovable property how made at section 107 which is being reproduced herein below:

107. Leases how made. —  

A lease of immoveable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument.

All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.

Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:

Provided that the State Government may from time to time, by notification in the Official Gazette, direct that leases of immoveable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.

With regards to duration of lease section 106 of TP Act “written contract” in title and “contract” in the body. Section 4 of TP Act mandates that “the Chapters and sections of this Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872 (9 of 1872)”. The terms “contract” has a special meaning as given in section 10 of the Indian Contract Act under the heading of what agreements are contracts. As per the said section only those “agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in India, and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents”. Any provision of law which intends to stipulate a special feature of to a contract will not be affected rather that will be considered a unique feature of that contract. Registration of a documents is a source of revenue for state government. Hence object of a person; who does not get the document registered which a law intended to be registered; cannot be said lawful as he wants to evade to pay revenue for state government. Second proviso of Section 107 of TP Act by using the terms “all other leases” for Lease of immovable property for a period of less than a year provides that such lease may be either by a registered instrument or by oral agreement accompanied by deliver of possession. TP Act by this provision, in clear terms, intends that leases of immovable property if not made by an oral agreement accompanied by delivery of possession then it must be by a registered instrument. Hence any unregistered lease deed of immovable property for a period of less than a year being without lawful object will not be recognised by law and such cannot be helpful to party to such lease

.

Section 4 of TP Act mandates that “Section 54, paragraphs 2 and 3, Sections 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, 1908 (16 of 1980)”. Section 49 of the Registration Act under heading of Effect of non-registration of documents required to be registered mandates “No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall (a) affect any immovable property comprised therein…”. These provisions are with respect to issue of effect of non-registration of a documents needs to be read together. It is crystal clear that a document to be registered is stipulated in section 17 of The Registration Act or any provision of the Transfer of Property Act, 1882. As such section 17 of The Registration Act alone does not provide exhaustive list of documents to be registered. Only two options have been provided by second proviso of Section 107 of TP Act section 107 for lease of immovable property for a period of less than a year i.e.

1) either by a registered instrument or

2) by oral agreement accompanied by deliver of possession.

As such leases of immovable property if not made by an oral agreement accompanied by delivery of possession, it must be by a registered instrument and not by unregistered instruments unless concerned State Government notifies otherwise. I have not came across any such notification whereby it has been directed that direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument. In absence of such notification leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, mandatory be made only by registered instrument.

Now still some people even some advocate(s) may deny out rightly aforesaid position saying it is my own explanation as same is against the general prevailing perception. They emphasis on judicial pronouncements on the issue in hand. Below is relevant judicial pronouncement on the issue in hand.

The Hon’ble Delhi High Court in Chemical Sales Agencies vs Smt. Naraini Newar on 17 September, 2004 Equivalent citations: AIR 2005 Delhi 76, 2005 (1) ARBLR 193 Delhi, 114 (2004) DLT 272, 2004 (77) DRJ 224 http://indiankanoon.org/doc/1028412/

 “Section 107 of the Transfer of Property Act, 1882 clearly provides that a lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered document. It further provides that all other leases of immovable property must be either by a registered instrument or by oral agreement accompanied by deliver of possession. Thus, only if there is a registered instrument or there is an oral agreement accompanied by delivery of possession can it be said that a relationship of Lesser and lessee is created. In the present case, I find that there is no registered instrument creating any such relationship. The purported lease agreement dated 01.05.1992 is not a registered document. It is not property stamped and by virtue of Section 49 of the Registration Act, 1908, the said document shall not effect any immovable property nor be received as evidence of any transaction affecting such property.”

The Hon’ble Karnataka High Court in Abdul Rasheed S/O Meeran Sab vs Srinivas S/O Kashinathrao on 16 April, 2014  http://indiankanoon.org/doc/59543538/ 

answering the issue of whether a lease deed, where the term of lease stated therein does not exceed one year, requires to be registered under the provisions of the Registration Act, 1908 said :

“As could be seen from the above quoted provisions, all leases not covered by first para of S.107 of the T.P. Act may be made either by a oral agreement accompanied by delivery of possession, or by a registered instrument. A lease, the registration whereof is not compulsory under S.17(1)(d) of the Registration Act, becomes compulsorily registrable, if reduced into writing in view of second para of S.107 of the T.P. Act read with para 2 of S.4 thereof. A written unregistered lease of immovable property, even though the term of lease stated therein does not exceed one year, is inadmissible in evidence in view of S.49 of the Registration Act, 1908 read with second para of S.107 of the Transfer of Property Act, 1882 & second para of S.4 thereof. A lease for a period of one year falls within the expression 'All other leases' stated in para 2 of S.107 of the T.P. Act and may be made by a oral agreement accompanied by delivery of possession.”

cause of action has different meanings in different contexts

The term "cause of action" is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. JT 2009 (4) SC 191 (2003) 9 SCC 50 (2006) 1 SCC 164 Generally, it is described as "bundle of facts", which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, "cause of action" means the cause of action for which the suit is brought. "Cause of action" is cause of action which gives occasion for and forms the foundation of the suit. (See: Sidramappa Vs. Rajashetty & Ors.4). 

Supreme Court of India

Kandimalla Raghavaiah & Co vs National Insurance Co. & Anr on 10 July, 2009

Author: D Jain

Bench: D.K. Jain, R.M. Lodha

http://indiankanoon.org/doc/1592293/

CPA: both travel agent and airlines are jointly and severally liable to pay compensation

  In Air India Vs Harpreet Singh & Ans. reported in III (2003) CPJ 123 (NC) wherein the ticket was not reconfirmed by the passenger, the National Commission has held that there was no question of reconfirmation when travel agent had issued a ticket with confirmed status.  The relevant portion of the judgement is reproduced as under:                                                                                                     

“Both these points are without substance.  Travel agent was the accredited agent of IATA of which Air India is a Member.  An argument that Air India could not suffer for the fault of the agent is against the basic principles of law particularly against the provisions of the Contract Act.  Air India is certainly liable for the negligence of its agent.  Ticket was purchased on 23.02.1999 and Harpreet Singh, the passenger, was to take the flight on 25.02.1999, within 72 hours of purchase of the OK ticket.  There was no question of any reconfirmation when travel agent had issued a ticket with confirmed status.  Harpreet Singh was to join university in Sydney on 01.03.1999 for higher studies.  We have not been shown any condition requiring confirmation in a case like the present one.”

  The National Commission in Express Travel vs M.R. Shah III (2002) CPJ NC has held that both travel agent and airlines are jointly and severally liable to pay compensation.

NCDRC _benefit of escalation of the price Rate of interest on refund of amount

 They are asking for return of the amount. The rates of the flats have already been increased by leaps and bounds. See the law laid down in K.A. Nagamani Vs. Karnataka Housing Board, Civil Appeal Nos.6730-6731 of 2012, dated 19.09.2012 arising out of SLP (C ) No. 35226-35227 of 2011, the Hon'ble Supreme Court was pleased to hold :-

                       9. .. 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 ...

It was further held that :-

                   26. For the reasons aforesaid, we allow the appeals and pass the following order:-

                         i) The respondent is directed to pay the appellant complainant, interest at the rate of 18% per                               annum on Rs.2,67,750/- from the date of its respective deposit till the date of realization with                         further direction to refund the amount of Rs.3,937/-, to her, as directed by the Consumer Forum.

                        ii) The respondent is directed to pay the appellant complainant further sum of Rs.50,000/- as                                compensation for deficiency in service on their part.

                     iii) The respondent is also directed to pay the appellant complainant, a sum of Rs.20,000/-                                   towards cost of the litigation incurred by her.

Allahabad High Court:Development Authorities can't levy and demand of various fee including bank guarantee

judgment (WRIT - C No. - 56485 of 2013 Petitioner :- Smt. Rekha Rani Respondent :- State Of U.P. Thru Secy. And 3 Others) date 12.12.2013 where in a bunch of writ petitions  clubbed  together to decide common question of facts and law  with   regard   to   the   competence  of   the Development Authorities constituted under Act 1973 to levy and demand  of (a) External  development  fee  (b) Internal development   fee   (c   )Sub-division   charges   (d)   park   fee   (e) compounding   fee   in   respect   of   sub-division   charges,   (f) inspection/   supervision   charges,  (g) labour   cess,   (h)   bank guarantee   for   the   value   of   the   cost   of   the   land   before sanctioning the building plan as per the application submitted under Section 14 of the 1973. For recorded the demand under the heads of (a) permit   fees (b) malwa fee (c) water fees (d) Triveni Mahotsav fee  has not been challenged.

                                                                                                                                                                                       

Bench of Hon'ble Arun Tandon,J and Hon'ble Anjani Kumar Mishra, J. disposed  bunch of Writ petitions with following directions:

1. We hold that the development fee both external and internal as well as city development charges/impact fee cannot be levied or collected by the Development Authorities, so long as statutory rules in exercise of powers under Section 15 (2-A)/38-A  of Act, 1973 are not framed.
2. We   direct   that   henceforth   the   Development Authorities shall not levy or collect any development fee both external   and   internal   as   well   as   city   development charges/impact fee until statutory rules as required are framed.
3. We   also   hold   that   the   demand   of  sub-division charges, compounding fee for sub-division, as wholly illegal and the Building Bye-Laws framed in that regard need not be given effect   to.  The   Development  Authorities   must   insist   for   open space   being   left   in   accordance   with   the  Building   Bye-Laws instead of charging money for violation thereof.
4. Demand of permit fee,   supervision fee, inspection fee, park fee, impact fee, labour cess  is held to be illegal, as not contemplated by any of the provision of Act, 1973.
5. Petitioners, who have deposited the money under the aforesaid heads, (a), (c) and (d) under protest or under interim orders passed in these petitions, shall be entitled for refund of the same on an application being made before the Development  Authority   concerned  within   one   month   of   the making of the application. 
6. All money collected by the Development Authorities from   other   persons   under   the   aforesaid   heads   shall   be transferred to the relevant account and shall be utilized for the purposes, mentioned under Act, 1973. 
7. The demand of Bank Guarantee in advance towards the cost of land and construction of houses for E.W.S. and persons   belonging   to   lower   income   group,   as   also   for installation  of  rain water  harvesting system is  also  quashed subject to conditions mentioned in the body of the judgement.

Details of the judgment :

Case :- WRIT - C No. - 56485 of 2013 Petitioner :- Smt. Rekha Rani Respondent :- State Of U.P. Thru Secy. And 3 Others the judgment date: 12.12.2013