Supreme Cour_Consumer Protection Act, 1986 _ services hired or goods purchase by employers for its employees are not commercial

The Hon'ble Supreme Court referring services hired or goods purchase by employers for its employees  in Civil Appeal No. 12322 of 2016 titled as Lilavati Kirtilal Mehta Medical Trust v. Unique Shanti Developers and Others

decided on 14-11-2019 clarifed at Para 6 thereof:

 ".......As discussed earlier, if in all such cases the third party service-provider disclaims liability before consumer forums on the ground that the hirer of the service is engaged in trade and commerce, it will open a Pandora's box wherein the employer as well as the employees will not have any remedy. This would defeat the object of providing a speedy remedy to consumers, as outlined in the provisions of the 1986 Act. Further, setting such a precedent may discourage employers from undertaking to provide any facilities for their employees. Hence, it is necessary to clarify that the provision of such services would not usually be included in the definition of 'commercial purpose."

Para 7 To summarize from the above discussion, though a straightjacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is 'for a commercial purpose':

(i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, 'commercial purpose' is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities.

(ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity.

(iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.

(iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of 'generating livelihood by means of selfemployment' need not be looked into.

Source

https://www.advocatekhoj.com/library/judgments/announcement.php?WID=12244

Supreme court _ Interest is not a penalty or punishment at all, but it is the normal accretion on capital

14.    I find some force in the argument of the learned counsel for the petitioner that the State Commission has not awarded any interest on the amount of refund on the ground that there was no concluded contract in the matter.  The fact of the matter is that amount remained deposited with the opposite parties for quite sometime and therefore, the complainant is entitled to some interest on the deposited amount as held by Hon’ble Supreme Court in Alok Shanker Pandey Vs. Union of India &Ors., II (2007) CPJ 3 (SC) as follows:-

“9.  It may be mentioned that there is misconception about interest.  Interest is not a penalty or punishment at all, but it is the normal accretion on capital.  For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount.  Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period.  Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B.”

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO. 3290 OF 2013

(Against the Order dated 23/07/2013 in Appeal No. 971/2010 of the State Commission Maharashtra)

1. YOGESH NANDLAL HEDA R/O 1466, 'C' WARD, LAXMIPURI, TALUKA-KARVEER, DISTRICT : KOLHAPUR MAHARASTRA	...........Petitioner(s)
Versus
1. M/S. SUBAL CONSTRUCTION & 3 ORS. ADD: 2104/13, 'E' WARD. RUKMINI NAGAR, KOLHAPUR MAHARASTRA 2. SHRI SUNIL BALRAM MAHAJAN, ADD: 2104/13, 'E' WARD. RUKMINI NAGAR, KOLHAPUR MAHARASTRA 3. SHRI SATISH VIJAYKANT MOOG, R/O BAJAR GATE, BEHIND KOHLAPUR, MUNICIPAL CORPORATION KOHLAPUR, MAHARASTRA 4. SHRI CHETAN SUNDARLAL KAJARIA, R/O PLOT NO-5, ANKIT APARTMENTS, NAGLA APARTMENTS, NAGLA PARK, KOHLAPUR MAHARASTRA	...........Respondent(s)

BEFORE:
	HON'BLE MR. PREM NARAIN,PRESIDING MEMBER

Dated : 23 Oct 2019

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

RERA Act_details of the proposed project available for public viewing

Below details of the proposed project shall be available for public viewing under The Real Estate (Regulation and Development) Act, 2016

*Section 11 "Functions and duties of promoter" - The Real Estate (Regulation and Development) Act, 2016*

(1) The promoter shall, upon receiving his Login Id and password under clause (a) of sub-section (1) or under sub-section (2) of section 5, as the case may be, create his web page on the website of the Authority and enter all details of the proposed project as provided
under sub-section (2) of section 4, in all the fields as provided, for *public viewing*, including-

(a) details of the registration granted by the Authority;
(b) quarterly up-to-date the list of number and types of apartments or plots, as the case may be, booked;
(c) quarterly up-to-date the list of number of garages booked;
(d) quarterly up-to-date the list of approvals taken and the approvals which are pending subsequent to commencement certificate;
(e) quarterly up-to-date status of the project; and
(f) such other information and documents as may be specified by the regulations made by the Authority.

*Sub-section (2) of section 4 under heading of Application for registration of real estate projects* mandates:

(2) The promoter shall enclose the following documents along with the application referred to in sub-section (1), namely:-
(a) a brief details of his enterprise including its name, registered address, type of enterprise (proprietorship, societies, partnership, companies, competent authority), and the particulars of registration, and the names and photographs of the promoter;
(b) a brief detail of the projects launched by him, in the past five years, whether already completed or being developed, as the case may be, including the current status of the said projects, any delay in its completion, details of cases pending, details of type of land and payments pending;
(c) an authenticated copy of the approvals and commencement certificate from the competent authority obtained in accordance with the laws as may be applicable for the real estate project mentioned in the application, and where the project is proposed to be developed in phases, an authenticated copy of the approvals and commencement certificate from the competent authority for each of such phases;
(d) the sanctioned plan, layout plan and specifications of the proposed project or the phase thereof, and the whole project as sanctioned by the competent authority;
(e) the plan of development works to be executed in the proposed project and the proposed facilities to be provided thereof including fire fighting facilities, drinking water facilities, emergency evacuation services, use of renewable energy;
(f) the location details of the project, with clear demarcation of land dedicated for the project along with its boundaries including the latitude and longitude of the end points of the project;
(g) proforma of the allotment letter, agreement for sale, and the conveyance deed proposed to be signed with the allottees;
(h) the number, type and the carpet area of apartments for sale in the project along with the area of the exclusive balcony or verandah areas and the exclusive open terrace areas apartment with the apartment, if any;
(i) the number and areas of garage for sale in the project;
(j) the names and addresses of his real estate agents, if any, for the proposed project;
(k) the names and addresses of the contractors, architect, structural engineer, if
any and other persons concerned with the development of the proposed project;
(l) a declaration, supported by an affidavit, which shall be signed by the promoter or any person authorised by the promoter, stating:-
(A) that he has a legal title to the land on which the development is proposed along with legally valid documents with authentication of such title, if such land is owned by another person;
(B) that the land is free from all encumbrances, or as the case may be details of the encumbrances on such land including any rights, title, interest or name of any party in or over such land along with details;
(C) the time period within which he undertakes to complete the project or phase thereof, as the case may be;
(D) that seventy per cent of the amounts realised for the real estate project from the allottees, from time to time, shall be deposited in a separate account to be maintained in a scheduled bank to cover the cost of construction and the land cost and shall be used only for that purpose:
Provided that the promoter shall withdraw the amounts from the separate account, to cover the cost of the project, in proportion to the percentage of completion of the project:
Provided further that the amounts from the separate account shall be withdrawn by the promoter after it is certified by an engineer, an architect and a chartered accountant in practice that the withdrawal is in proportion to the percentage of completion of the project:
Provided also that the promoter shall get his accounts audited within six months after the end of every financial year by a chartered accountant in practice, and shall produce a statement of accounts duly certified and signed by such chartered accountant and it shall be verified during the audit that the amounts collected for a particular project have been utilised for the project and the withdrawal has been in compliance with the proportion to the percentage of completion of the project.
Explanation.- For the purpose of this clause, the term "schedule bank" means a bank included in the Second Scheduled to the Reserve Bank of India Act, 1934;
(E) that he shall take all the pending approvals on time, from the competent authorities;
(F) that he has furnished such other documents as may be prescribed by the rules or regulations made under this Act; and
(m) such other information and documents as may be prescribed.

*Section 34 "Functions of Authority" - The Real Estate (Regulation and Development) Act, 2016*

The functions of the Authority shall include-
(b) to publish and maintain a website of records, for *public viewing*, of all real estate projects for which registration has been given, with such details as may be prescribed, including information provided in the application for which registration has been granted;
(c) to maintain a database, on its website, for *public viewing*, and enter the names and photographs of promoters as defaulters including the project details, registration for which has been revoked or have been penalised under this Act, with reasons therefor, for access to the general public;
(d) to maintain a database, on its website, for *public viewing*, and enter the names and photographs of real estate agents who have applied and registered under this Act, with such details as may be prescribed, including those whose registration has been rejected or revoked;

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/                    

HRERA_execution of agreement prior to the commencement of the Real Estate Act, 2016_No penal proceedings

Since the builder buyer’s agreement was executed on 10.08.2015 i.e. prior to the commencement of the Real Estate (Regulation and Development) Act, 2016, therefore, the penal proceedings cannot be initiated retrospectively. Hence, the authority has decided to treat the present complaint as an application for non-compliance of contractual obligation on the part of the promoter/respondent in terms of section 34(f) of the Real Estate (Regulation and Development) Act, 2016


BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM

Complaint no. : 1986 of 2018 Date of first hearing : 19.03.2019 Date of decision : 19.03.2019 1.

Mr. Pankaj Kansal, s/o. Shri Raj Kumar Kansal.
2. Mrs. Dimpy Kansal, w/o. Mr. Pankaj Kansal
Address:- House no. 503, Swarn Jayanti Apartment, Sector- 54, Gurugram, Haryana- 122001.
                                                                                                                                 
                                                                                                                                         Complainants
                                                                  Versus

1. M/s Vatika Limited, through its authorized representative.
2. Office at: Vatika Triangle, 4th Floor,
3. Sushant Lok, Phase-I, Block-A,
4. MG Road, Gurugram,
5. Haryana-122002.
                                                                                                                                       Respondent CORAM:
 Shri Samir Kumar Member
 Shri Subhash Chander Kush Member

https://haryanarera.gov.in/uploads/complaints/RERA-GRG/2018/1986/orders/7214.pdf

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.”

NCDRC_sale of two shops to a single person not livelihood or self employment but commercial purpose

Hon’ble National Commission in the case of Travel India Bureau Pvt. Ltd. Vs Senior Town Planner HUDA, reported as 2008 (2)C.P.J. 329: 2008 (4) in which it has been held as under:-

“4. Words occurring towards the end in above sub-clause (ii)- ‘but does not include a person who avails of such services for any commercial purpose’ were added and the explanation substituted by the Consumer Protection (Amendment) Act, 2002 w.e.f. 15.03.203. Bare reading of the Explanation would show that services which are availed of for the purpose of earning livelihood by means of self-employment only  are not to be treated for commercial purpose. Alleged service for providing two dwelling units at a cost of Rs.46,65,000/- by OP No.6, obviously, is not for earning livelihood by means of self employment by the complainant – company and the transaction is relatable to service for commercial purpose which has been excluded from the purview of the definition as given in Section 2(I)(d)(ii) w.e.f. 15.03.2003. Thus, complainant not being a consumer the complaint itself is not maintainable under the Act. Complaint is, therefore, dismissed as such”.

NCDRC_Commission under obligation to decide by a well-reasoned order if a document is to be taken on record or not

In any case, if certain documents are filed by either of the parties before the State Commission, it is the duty of that Commission to decide by a well-reasoned order, if such documents are to be taken on record or not.  

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

FIRST APPEAL NO. 641 OF 2017

(Against the Order dated 17/02/2017 in Complaint No. 12/2011 of the State Commission Andhra Pradesh)

1. M/S. SAPTAGIRISA CONSTRUCTIONS & 2 ORS. PLOT NO. 195/C, WESTERN HILLS, OPP. JNTUC, KUKATPALLY, HYDERABAD- 2. VALLU SANDEEP S/O. LAE VENKATESWARULU PLOT NO. 195/C, WESTERN HILLS, OPP. JNTUC, KUKATPALLY, HYDERABAD- 3. VALLU SIVA SAILAJA W/O. LATE V. VENKATESWARULU PLOT NO. 195/C, WESTERN HILLS, OPP. JNTUC, KUKATPALLY, HYDERABAD- 4. VALLU SRUTHI D/O. LATE V. VENKATESWARULU PLOT NO. 195/C, WESTERN HILLS, OPP. JNTUC, KUKATPALLY, HYDERABAD-	...........Appellant(s)
Versus
1. P.V. NAGARATNAM W/O. P. SRINIVAS RAO, R/O. FLAT NO. 506, SHANTI APARTMENTS, BHAGYANAGAR COLONY, OPP: K.P.H.B., KUKATPALLY, HYDERABAD-	...........Respondent(s)

BEFORE:
	HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER
	HON'BLE MR. DR. S.M. KANTIKAR,MEMBER

For the Appellant :

For the Respondent :

Dated : 01 Feb 2018

ORDER

APPEARED AT THE TIME OF ARGUMENTS For the Appellants : Ms. Madhavi Divan, Advocate Mr. A.V.S. Raju, Advocate For the Respondent : Mr. Rakesh Sanghi, Advocate PRONOUNCED ON:    01st  February  2018   ORDER PER DR. B.C. GUPTA, PRESIDING MEMBER           This appeal has been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986, against the impugned order dated 17.02.2017, passed by the Telangana State Consumer Disputes Redressal Commission, (hereinafter referred to as “the State Commission”) in application C.C.I.A. No. 1065/2016 filed in consumer complaint CC/12/2011, filed before the State Commission by the respondent/complainant, vide which, the said application was allowed. 2.      Briefly stated, the facts of the case are that the respondent/complainant filed the consumer complaint in question, saying that he had entered into a development agreement on 24.09.2007 with the appellant/opposite party (OP) vide which, he hired the services of the appellant/OP for construction of apartments of 18000 sq. ft. on the land measuring 770.77 sq. yards belonging to him in Madinaguda village, Rangareddy District.  However, even after three years from the date of the said agreement, the OP did not initiate the construction and the development work, as per the agreed terms and conditions.  Further, the OP started selling flats from the share of the complainant as well, causing huge financial loss as well as mental agony to the complainant.  The complainant filed the consumer complaint in question before the State Commission, seeking directions to the OP to pay compensation on account of non-construction of certain portions of the project.  The said complaint was allowed vide order of the State Commission dated 20.03.2012, vide which, the OP was directed to pay a sum of Rs. 55,55,000/- to the complainant, alongwith compensation of Rs. 5 lakhs and cost of litigation as Rs. 20,000/-.  During proceedings before the State Commission, the appellant/OP did not file their written version to the complaint, neither their evidence affidavit was filed on record.  The OP builder challenged the said order by way of first appeal no. 666/2013 before this Commission, which was decided on 15.10.2014.  It was ordered with the consent of both the parties that the consumer complaint C.C. No. 12/2011 be restored to the Board of the State Commission for fresh adjudication.  The appellant/OP were allowed to file their written version to the complaint and also to lead evidence in support of their case.  During pendency before the State Commission, the complainant filed an application in the shape of an affidavit, C.C.I.A. No. 1605/2016, through which, it was pleaded that certain documents filed by the OP should be given back to them.  The State Commission passed an order dated 17.02.2017 on the said application, which states as follows:- “Docket order dated: 17.02.2017.  J.B.N.R.N. (P) PVR (M)           Heard both sides.  In the circumstance stated in the affidavit, the petition is ordered.” 3.      Being aggrieved against the above order of the State Commission, the OP builder has challenged the same by way of the present appeal.  It was pleaded during arguments by the learned counsel for the appellants that the State Commission had passed the impugned order without taking into consideration the counter affidavit filed by the appellants.  Moreover, the said order had been passed, without stating any reason for allowing the application.  The learned counsel stated that the application C.C.I.A. No. 1605/2016 was not maintainable in the eyes of law.  The learned counsel also stated that they were prepared to file the original documents on record.  The complainant had failed to establish that the documents being filed by them were bogus or fabricated. 4.      In reply, the learned counsel for the complainant stated that the OP builder had filed only photocopies of the documents, which could not be taken on record.  The order passed by the State Commission was, therefore, in accordance with law. 5.      We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. 6.      By virtue of the order dated 15.10.2014, passed by this Commission, the OP builder was allowed to file their written version to the complaint before the State Commission and also to file their evidence affidavit etc.  It is the case of the OP builder that alongwith their evidence affidavit, it was their right to file the necessary documents, which would have a bearing on the outcome of the case.  In any case, if certain documents are filed by either of the parties before the State Commission, it is the duty of that Commission to decide by a well-reasoned order, if such documents are to be taken on record or not.  By virtue of the impugned order, the State Commission have not recorded any reasons for allowing the application filed by the complainant and simply directed that certain documents should not be allowed to be taken on record.  The order passed by the State Commission is not in accordance with law, as the same is a vague/sketchy order.  The present appeal is, therefore, allowed and the order dated 17.02.2017, passed by the State Commission is set aside.  The State Commission is directed to proceed further in the matter after recording a well-reasoned order on the issue of admissibility of the documents filed by either of the parties.  There shall be no order as to costs.

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

DR. B.C. GUPTA

PRESIDING MEMBER

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

DR. S.M. KANTIKAR

UP Apartment Act_a landmark judgement

M/s. Designarch Infrastructure Pvt. Ltd. and Another vs. Vice Chairman, Ghaziabad Development Authority and Others (14.11.2013 - ALLHC) : MANU/UP/1765/2013

Issues for Adjudication

42. Following issues have been raised by the petitioners for consideration of the Court:

        I.            Whether the original plan, which was shown to purchasers, could be amended without obtaining previous consent of intending purchasers as stated in proviso to Section 4(4) after 19.3.2010/July 2010?

      II.            Whether Purchasable FAR of 33% allows the builder to construct new stones in existing building to encroach common areas and facilities?

    III.            Whether the policy of Purchasable FAR is contrary to the Statute, illegal and liable to be struck down?

    IV.            Whether the builder is entitled to run community center as a private club or claim any part of common areas and facilities as private property? (In some cases the land is freehold)

      V.            Whether Section 14(2) gives any right to the builder to resist/disallow formation of a RWA by the apartment owners in Violation of Article 19(1)(c) of the Constitution of India?

    VI.            Whether intending purchaser under Section 4(4) would also include residents living in the same society who object to amendments in original plan after 19.3.2010/July 2010 with the concurrent reading of Section 41(3) of U.P. Urban Planning and Development 1973?

  VII.            Whether the builder can resist (deemed) handing over of common areas and facilities after formation of RWA or after obtaining completion certificate and how does Competent Authority enforce deemed handed over if the builder refuses to honor the law?

VIII.            Whether apartment owner would include spouses/major children/family members of apartment owners so as to enable them to become member of RWA or shall it be limited to blood relatives on the basis of SPA or no one can be passed on the power?

    IX.            Whether the Deputy Registrar can resist recognition to RWA on the ground that byelaws framed under the Rules can't be implemented without obtaining clarification from Registrar?

      X.            Whether declaration as provided under Rules in a mandatory obligation on part of all builder of buildings having more than 4 apartments constructed or under construction in the State of U.P. to be provided to the Development Authority and what consequences would follow for non-compliance?

43. In addition the following issues have also been raised for adjudication in these writ petitions:

Writ Petition No. 33826 of 2012, Designarch Infrastructure Pvt. Ltd. and another v. Vice Chairman, GDA and others

(1)    Whether the promoter can resist handing over of society to duly constituted RWA on the pretext that some members are not owners.

(2)    Whether the promoter can challenge orders passed by GDA to hand over complex to RWA alongwith maintenance deposit of 9.5 crores.

Writ Petition No. 46099 of 2012, Abhinav Jain v. State of U.P. and others

(1)    Whether additional constructions have been made without obtaining consent under the Act by amending the original map which was shown to the intending purchaser.

(2)    Whether the promoter has caused encroachment on common undivided open park area by constructing new buildings.

(3)    Whether purchasable FAR of 33% can be allotted to builder after allotment of flats and start of construction approving change in original plan.

64. To sum up the conclusions drawn by us are as follows:

(1)    The U.P. Apartment Act, 2010 and the U.P. Apartment Rules, 2011 provides for a complete code for regulating the rights, duties and liabilities and for resolving the issues and disputes between the promoters and the apartment owners. The Act has overriding effect under Section 31(1) over all other laws on the subject notwithstanding anything inconsistent therewith contained in any other law for the time being enforced.

(2)    The provisions of the Transfer of Property Act, 1882, in view of Section 29 of the U.P. Apartment Ownership Act, 2010, shall in so far as they are not inconsistent with the provisions of the Act apply to the transfer of any apartment together with its undivided interest in the common areas and facilities appurtenant thereto made by the owner of such apartment, where such transfer is made by sale, lease, mortgage, exchange, gift or otherwise as they are applied to the transfer of any immovable property.

(3)    The apartment owner under Section 3(d) will not only the person or persons owning an apartment or the promoter or his nominee in case of unsold apartments with an undivided interest in the common areas and facilities appurtenant to such apartment in the percentage specified in the Deed of Apartment and includes the lessee of the land on which the building containing such apartment has been constructed, where the lease of such land is for a period of thirty years or more; it includes the spouse and children of the apartment owner and a lawful tenant of the allottee/owner of the allotment, which will also include officer or employee of the company/firm or association, which owns an apartment under a valid allotment letter and its tenant. It will also include a person holding valid power of attorney of the allottee/owner of the apartment, where it is owned individually, jointly or in the case of a company/firm/society and occupied without any right of occupation either as family member, tenant, employee or person holding power of attorney will not be included in the definition of apartment owner.

(4)    The U.P. Apartment Act, 2010, which has come into force w.e.f. 19.3.2010 is applicable to all the buildings, which have three or more than three apartments intended for any type of independent use including enclosed spaces located on one or more floors to be used for residential or official purposes or for the purpose of practising any profession or for carrying on any occupation, trade or business, excluding shopping malls and multiplexes. The word 'apartment' includes any garage or room whether or not adjacent to the building in which such apartment is located, if it has independent access to public street, road or to a common area leading to such street, road, used for parking cars or for residence of any domestic aid. The garage or such rooms, however, do not have any independent status as apartment, to carry with it any rights of common areas and facilities.

(5)    Each of the chapters namely Chapter-II Duties and Liabilities of Promoters; Chapter III Right and Obligations of Apartment Owners; Chapter IV Ownership, Heritability and Transferability of Apartment; Chapter V Declaration of Building and Deed of Apartment; Chapter VI Association of Apartment Owners and Bye-laws for the Registration of the Affairs of such Association; Chapter VII Common Profits, Common Expenses and Other Matters, are independent and that the rights and liabilities under these chapters can be enforced independently unless these are essentially depending upon rights and liabilities in other chapters subject to Chapter VIII 'Miscellaneous' with the ultimate control of the State Government of which directions have to be carried out by the competent authority as defined in Rule 2(c) of the Rules, 2011.

(6)    Chapter V Declaration of Building and Deed of Apartment, carries within it the content, which fulfills the primary objective of the Act. The declaration under Section 12 falling in the said chapter, with which the complete information as provided in Form-A under Rule 3 of the Rules of 2011 with Annexure-A to F and Schedule A, must be enclosed as mandated by Section 13 with the deed of transfer, is mandatory for handing over possession of any apartment constructed after the commencement of the Act and also to get such transfer deed registered under the provisions of the Registration Act, 1908.

(7)    Under Section 5(1) of the U.P. Apartment Act, 2010 every person to whom any apartment is sold or transferred by the promoter shall subject to other provisions of the Act be entitled to exclusive ownership and possession of the apartment so sold or otherwise transferred. He is under sub-section (2) entitled to the exclusive ownership and possession of apartment and shall be entitled to such percentage of undivided interest in the common areas and facilities as may be specified in the deed of apartment and such percentage shall be computed by taking, as a basis, the area of the apartment in relation to the aggregate area of all apartments of the building. Such percentage of undivided interest under sub-section (3)(a) in the common areas and facilities shall have a permanent character, and shall not be altered without the written consent of all the apartment owners and approval of the competent authority, and which shall not be separated from the apartment to which it pertains. It shall be deemed to be conveyed or encumbered with apartment, even though such interest is not expressly mentioned in the conveyance or other instrument. The common areas and facilities under sub-section (4) cannot be transferred and will remain undivided with the apartment. These cannot be partitioned or subject to any division and will be enjoyed by the apartment owner under sub-section (5), without hindrance or encroaching upon the lawful rights of the other apartment owners.

(8)    The 'limited common areas and facilities', which are specified in writing by the promoter before the allotment, sale or other transfer of any apartment as reserved for use of certain apartment or apartments to the exclusion of the other apartments as defined in Section 3(s) and the 'independent areas', which have been declared but not included as common areas for joint use of apartments, and which may be sold by the promoter without the interference of other apartment owners under Section 3(p), must be clearly defined and delineated in the declaration under Section 12, failing which the promoter will not be entitled to claim these common areas and facilities to be limited or independent. Any dispute with regard to common areas and facilities, limited common areas and facilities and independent areas, and for its provisions in the declaration is subject to decision by the competent authority as defined under Rule 2(c) of the Rules of 2011. The failure to submit the declaration and its enclosure with the deed of transfer and its non-registration will disentitle the promoter from claiming common areas and facilities in the property in which the apartments are built to be limited common areas and facilities or independent areas.

(9)    The association of apartment owners is to be registered by the Registrar, Deputy Registrar or Sub-Registrar under the Societies Registration Act as amended in the State of U.P. If bye-laws are inconformity with the model byelaws as notified on 16.11.2011, the Registrar/Deputy Registrar/Sub-Registrar cannot refuse to register association on the ground that it contains less than minimum number of members of the society under the Societies Registration Act or that it does not comply with any of the provisions of the Societies Registration Act as amended in the State of U.P. The registration of the association is in compliance with the provisions of the U.P. Apartment Act, 2010, U.P. Apartment Rules, 2011 and model bye-laws. It shall be the joint responsibility of the promoter and apartment owners to obtain the registration. The Registrar/Deputy Registrar/Sub Registrar shall not refuse to register the association, if the promoter does not join even after one month's notice given by the apartment owners or 33% of the apartment owners, whichever is more. It is clarified that the completion of all infrastructure services and completion certificate from local authority will not be a ground to deny the registration, as the issuance of completion certificate depends on the steps to be taken by the promoter. The delay caused by him in obtaining such certificate will defeat the object of formation of the society and the enforcement of the rights and liabilities of the promoter and the apartment owners. In such case the society will be registered provisionally under the certificate to be given by the competent authority as defined in Rule 2(c) of the Act, who will give a time period to the promoter to provide all infrastructure services and to obtain completion certificate, failing which the promoter will invite the punishment for the offence as prescribed under Section 25 of the Act including the punishment of imprisonment under Section 25(1) of the Act.

(10)The 'competent authority' within the meaning of Rule 2(c) as defined will include Vice Chairman of the Development Authority in whose notified development area the building is situate or the Collector of the district, where no such development authority exists. In case of the Industrial Development Authority the competent authority shall be the Chief Executive Officer of the Industrial Development Authority. For the purposes of discharging functions and duties and resolving the disputes the competent authority will be entitled to delegate its powers to an officer not below the rank of Joint Secretary including Legal Advisor of the authority and any Sub Divisional Magistrate of the district in case of a district. The competent authority shall set up mediation and conciliation centres in each authority, or the district, which will resolve to mediate the disputes at the first instance between the disputing parties.

(11)Any dispute raised before the competent authority shall be decided by the competent authority or delegatee as provided above or his delegatee as provided above, to be decided by the officer notified by the State Government under Section 27(2) and (3) of the Act, before it is brought before the Court of law.

(12)The competent authority will also be entitled to verify the contents of the declaration under Section 12 of the U.P. Apartment Act, 2010 and to decide any question, which may arise out of such declaration.

(13)The model byelaws as notified on 16.11.2011 under sub-section (6) of Section 14 of the U.P. Apartment Act, 2010, if not approved and appended to the application for registration, made prior to the enforcement of the Act shall be adopted in the first meeting of the association of apartment owners and will be registered by the Registrar. Any amendment in the model bye-laws will be made in accordance with the Bye Law 58 of the Model Bye-laws to be approved by the owners representing atleast 2/3rd of the total number of units in the building with the prior approval of the competent authority and will thereafter be registered by the Registrar of Societies without insisting upon complying with the provisions of any other Act including Societies Registration Act as amended in the State of U.P. No alteration in the declaration given by the promoter under Section 12 shall be permitted except in accordance with the Act and for which the approval of the development authority or regulating authority in which such property is situate will be necessary and thereafter with the approval of the association of apartment owners by resolution passed by the apartment owners in which vote of promoter shall not be counted. The development authority or regulating authority may in such case demand a NOC from the apartment owners before allowing any alteration in the building plans as a condition for granting approval.

(14)The FAR or any additional FAR is a property, appended to rights in the property on which the building is constructed, and is thus a property in which the apartment owners have interest by virtue of the provisions of the U.P. Apartment Act, 2010. The purchase of additional FAR is not permissible to be appropriate by the promoter without any common benefits to the apartment owners. The consent of the apartment owners obtained by resolution in the meeting of the apartment owners by majority will be necessary for purchasing additional FAR. Its utilization will also be subject to the consent of the apartment owners.

M/s. Designarch Infrastructure Pvt. Ltd. and Another vs. Vice Chairman, Ghaziabad Development Authority and Others (14.11.2013 - ALLHC) : MANU/UP/1765/2013

https://www.rtiindia.org/forum/186632-quot-forwarding-cpio-quot-punished-if-there.html#.WmyAOlLj7D0.twitter

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

Haryana Apartment Ownership Act,_Turmoil over common areas in Condominium

Demolition of allegedly unauthorised shops put up by the residents' association in Heritage City, Gurgaon cloaks the more important issue: who should own common areas in group housing complexes in the state? This is a matter of contention between the builders and many of the housing societies in Gurgaon. The government's response to all such disputes is either to brush them under the carpet, or side with the developers while taking full advantage of the weaknesses in the legislation.

The Haryana Apartment Ownership Act (HAOA) was passed to give the residents of housing complexes in the state the right and the wherewithal to administer the colonies through their elected representatives. The spirit of the Act requires that once the area has been handed over to the owners' body, all common areas and facilities, too, should be transferred to them. That the law says as well. But in a clever twist of legalese it leaves it to the builder to declare in the declaration he files under the Act what constitutes 'common areas'.

In the broad scheme of the HAOA, only three kinds of properties are mentioned as components of any gated colony: general common areas, limited common areas and private residences. Whatever facilities - be it shops, club, school or any other - which the builders try to hold on to, or sell or lease to private parties, would be classified as private commercial properties and there is no provision for them in the law. This is a point made by the Punjab and Haryana High Court in their judgment in the Silver Oaks case.

That verdict was overturned by the Supreme Court in 2013. The apex court had two important observations to make. One, that the licensed area in which the group housing complex known as Silver Oaks is located also has plotted areas of DLF I in it, hence the residential society of this complex alone cannot take control of all common facilities. The court said: "The colonizer could not have included the community and commercial facilities (in the declaration) because the same is meant for the benefit of the entire colony, which takes in plotted area and the group housing society's area as well." Logically it means that residents of plotted areas outside too can avail of the common facilities in the gated complex! In any case this situation is a rarity.

Second, the court said that the statute has given a discretion to the colonizer to include whatever facilities he desired in the common list because they were built by him 'at his own cost' so he could do what he liked with them. If this means that the cost of constructing these facilities was not added to the selling price of the apartments, not enough evidence was produced before the court to establish this. And even if it is correct in accounting terms, it is contrary to the spirit of the law.

Unfortunately, the building sector is not known for transparency of its accounts. But the government can still set up a mechanism by which the correct cost of building these structures can be ascertained and the apartment owners' associations given the option of buying them off. And for the future, the law must be amended unequivocally to give societies of apartment owners full control over all facilities. If that means that developers will load the cost of constructing them on the buyers (which they may have done in the past, too, but keep this fact cleverly hidden), so be it. At least this matter will be removed from the list of contentious issues that bedevil the realty sector.

https://m.timesofindia.com/city/gurgaon/turmoil-over-common-areas-in-condominium/articleshow/61921715.cms

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