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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DIVISION OF CIVIL SUITS AND APPEALS INTO TRACKS:

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

Rule 8, 9, and 10 reproduced.

8. Costs

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

9. Proceedings for perjury

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

10. Adjournments

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

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

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

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

CLAIMING DAMAGES? DON’T GO UNDER IBC, SAYS NCLT

INTRODUCTION

The National Company Law Tribunal, Mumbai (“NCLT”) in a recent case in TATA Chemicals Limited v/s. Raj Process Equipment’s and Systems Private Limited¹ dismissed a petition of Tata Chemicals (“Petitioner”) filed under Section 9 of the Insolvency & Bankruptcy Code, 2016 (“IBC”) and imposed costs of INR 10 lakhs (USD 14,000 approximately) upon the Petitioner, for its attempts to initiate a Corporate Insolvency Resolution Process (“CIRP”) against the corporate debtor on ulterior motives.

FACTUAL MATRIX

The Petitioner had approached Raj Process Equipment’s & Systems Private Ltd. (“Corporate Debtor”) for the designing, building, transporting, erecting and commissioning of certain industrial equipment. A purchase order was raised by the Petitioner for the said equipment, for which the Petitioner made an advance payment of ₹4,40,000 (“Advance Amount”).

The Petitioner argued that despite repeated reminders, Corporate Debtor failed to deliver the equipment on the scheduled delivery date. The Respondent submitted that delays caused were inter alia, due to frequent changes in specifications and rectifications to the drawings suggested by the Petitioner,

The Petitioner proceeded to terminate the purchase order and demanded refund of the Advance Amount, claiming an additional amount of INR 9,15,00,000 /- towards financial loss (“Financial Damages”). Further, the Petitioner claimed interest of INR 70,84,311 /- and INR 34,066/- respectively.

The Petitioner filed the petition under Section 9 of the IBC, claimed that the actual principal amount due is INR 9,19,40,000 (“Principal Amount”).

JUDGMENT

The Claim of Financial Damages does not qualify as Operational debt

The NCLT observed that Section 73 of the Indian Contract Act provides that when a contract has been broken, the party who suffers such breach is entitled to receive, from the party, who has broken the contract, compensation for any loss or damage caused to him and which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Further, when an obligation resembling those created by contract has been incurred and not discharged, the injured party is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it, and had broken his contract, it observed. Accordingly, the NCLT found that in the present case, the Petitioner has raised claims of INR 5,00,000 per day for loss of production, which is not only in nature of consequential damages, but also completely arbitrary and baseless, and which cannot be relied upon in absence of adjudication

Placing reliance in the cases of E-City Media Private Limited vs Sadhrta Retail Limited ² and in Union of India vs Raman Iron Foundry³ , the NCLT observed that the claim regarding Financial Damages was without any adjudication and therefore not an ‘operational debt’ as defined under the IBC. It held that a claim for damages does not become operational debt until the liability is adjudicated upon and damages are assessed by a competent authority in law.

Petitioner is not an “operational creditor”

The NCLT observed that no goods or services were provided by the Corporate Debtor to the Petitioner and that, in fact, it is the Corporate Debtor who is the vendor to whom the Petitioner hasn’t made payments for goods. Since the Claim of the Petitioner was not based on any goods or services actually supplied, it would not fall under the definition of operational debt. The NCLT thus held that given the circumstances, the Petitioner would not fall under the definition of ‘Operational Creditor’ under the IBC.

Insolvency petition filed with malafide intentions

The court observed that the Principal Amount, as stated in the petition and affidavit, was not even quantified at the time of filing and was 209 times the actual amount advanced by the Petitioner to the Corporate Debtor. This, the NCLT observed, only showed that the petition was filed basis false information.

The Petitioner had also filed an affidavit certifying the contents of the petition. This, the NCLT found, clearly showed that the Petitioner had filed the petition for initiation of CIRP fraudulently and with a malicious intent for any purpose other than for the resolution of insolvency and therefore invoked Section 65 of the IBC.

In light of the above, and without going into the merits, the NCLT held that the Petition has been filed with ulterior motive to get insolvency petition admitted which comes under purview of Section 65⁴ of the IBC, consequently dismissing the Petition and imposing costs of INR 10,00,000 on the Petitioner, to be paid to the “Prime Minister National Relief Fund”.

CONCLUSION

In this judgment, the NCLT has reaffirmed the main purpose of IBC which is the resolution of distressed companies and not to provide parties a weapon to arm twist an entity into succumbing to claims, which may not even have been adjudicated upon. This judgement clarifies that a claim for damages does not become operational debt until the liability is adjudicated upon and damages are assessed by a competent authority. Further, this decision should deter parties from filing petitions without adequately and accurately quantifying their claims.

When it comes to filing a petition under Section 9 of the IBC, parties should be careful to ensure that the claim for operational debt due made therein is undisputed, crystallized, payable and not something which requires further adjudication by a competent authority, or else penalties may be imposed upon them under Section 65 of the IBC.

¹ CP 21/I&BP/NCLT/MAH/2018

² CP No.367 of 2009

³ (1974 AIR 1265, 1974 SCR (3) 556)

⁴ Section 65. (1) If, any person initiates the insolvency resolution process or liquidation proceedings fraudulently or with malicious intent for any purpose other than for the resolution of insolvency, or liquidation, as the case may be, the Adjudicating Authority may impose upon such person a penalty which shall not be less than one lakh rupees, but may extend to one crore rupees. (2) If, any person initiates voluntary liquidation proceedings with the intent to defraud any person, the Adjudicating Authority may impose upon such person a penalty which shall not be less than one lakh rupees but may extend to one crore rupees

http://www.nishithdesai.com/information/news-storage/news-details/article/claiming-damages-dont-go-under-ibc-says-nclt.html

Economic Duress

Concept of Economic Duress : One party can withhold payment due to other party and can release it only if other party signs "full discharge voucher". Courts will grant relief in such cases. DICITEX FURNISHING LTD case. Supreme Court dtd.13/11/19 in CA No.8550/19

Source: https://www.linkedin.com/feed/update/urn:li:activity:6610072513546416128

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