distinction amongst pleading under CPC,Writ Petition and counter Affidavit

What is distinction between pleading under CPC,Writ Petition and counter Affidavit? 

It is necessary to make a mention at this juncture about the manner  in which a petition for anticipatory bail has to be drafted.  In a leading  case in  _Bharat Singh and Ors. vs. State of Haryana and Ors (1988) 4SCC 534,_ the Honble Supreme Court drew a distinction between a pleading under the CPC  and a writ petition or a counter affidavit.  While in a pleading, that is, a  plaint or a written statement, the facts and not evidence are required to be  pleaded, in a writ petition or in the counter affidavit not only the facts  but also the evidence in proof of such facts have to be pleaded and annexed  to it.   If an accused is to be granted anticipatory bail in a case arising  under the Atrocities Act, he has to fulfil the test laid down in Dr.Subhash  Kashinath Mahajan case.  It is true that there are no strict rules of  pleading in Criminal Procedure Code as those in the Civil Procedure Code.   Nevertheless, the principles of natural justice require that the victim is  not taken by surprise. Hence, the petition to be filed by the accused along  with the anexures should contain all the necessary and relevant materials. 

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT 

( Criminal Jurisdiction )

Date  : 26/11/2019

PRESENT

THE HONBLE MR.JUSTICE G.R.SWAMINATHAN

CRL OP(MD). No.17224 of 2019

Dr.S.Ariharan, Vs.  The Inspector of Police,

Judgment link

https://www.lawweb.in/2019/12/madras-hc-court-can-give-anticipatory.html?m=1

https://www.lawweb.in/2019/12/what-is-distinction-between-pleading.html?m=1

no one can take advantage of his own wrong

 

It is relevant in this context to quote the maxim "nullus commodum capere potest de injuria sua propria meaning no man can take advantage of his own wrong." Union Of India & Ors vs Major General Madan Lal Yadav : 1996 (1) KLT Online 901 (SC) was a case in which an action was taken against the respondent under Section 122 of the Army Act, 1950  on account of dereliction of duty and action. Relevant paragraph reads as follows:

 

"................. On consideration of the charge, the proceedings were adjourned from day to day till the respondent appeared on March 2, 1987. It is obvious that the respondent had avoided trial to see that the trial would not get commenced. Under the scheme of the Act and the Rules, presence of the accused is a pre-condition for commencement of trial. In his absence and until his presence was secured, it became difficult, may impossible, to proceed with the trial of the respondent- accused. In this behalf, the maxim nullus commodum capere potest de injuria sua propria- meaning no man can take advantage of his own wrong - squarely stands in the way of avoidance by the respondent and he is estopped to plead bar of limitation contained in Section 123. In Broom's Legal Maximum [10th Edn.] at page 191 it is stated "it is a maxim of law, recognized and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in Courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure. The reasonableness of the rule being manifest, we proceed at once to show its application by reference to decided cases. It was noted therein that a man  shall not take advantage of his own wrong to gain the favourable interpretation of the law. In support thereof, the author has placed reliance on another maxim frustra legis auxilium quoerit qui in legem committit. He relies on Perry v. Fitzhowe [8 Q.B. 757]. At page 192, it is stated that if a man be bound to appear on a certain day, and before that day the obligee put him in prison, the bond is void. At page 193, it is stated that "it is moreover a sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned". At page 195, it is further stated that "a wrong doer ought not to be permitted to make a profit out of his own wrong". At page 199 it is observed that "the rule applies to the extent of undoing the advantage gained where that can be done and not to the extent of taking away a right previously possessed".

 

In Devendra Kumar vs State Of Uttaranchal & Ors : 2013 (3) KLT (Suppl) 62 (SC) : (2013) 9 SCC 363 : AIR 2013 SC 3325 the applicability of the maxim has again come up. In paragraph 23 of the said judgment it has been held that a person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent court. In such a case, the legal maxim 'Nullus Commodum  Capere Potest De Injuria Sua Propria' applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. Paragraph 23 of the said judgment is relevant in this context which is extracted below:

 

 

" .................... A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent Court. In such a case the legal maxim Nullus Commodum Capere Potest De Injuria Sua Propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. (Vide: Union of India v. Maj. Gen. Madan Lal Yadav, AIR 1996 SC 1340; and Lily Thomas v. Union of India & Ors., AIR 2000 SC 1650 nor can a person claim any right arising out of his own writing.

 

No possession period in BBA_Agreement_Reasonable possession period

 

Hon’ble Apex Court in case M/s Fortune Infrastructure (now known as M/s Hicon Infrastructure) & anr. 2018 STPL 4215 SC has laid down as under: - 

“15. Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered. When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents/complainants is entitled to?” 

Concealment of material fact

 

21. Order of the Hon’ble High Court of Calcutta in the case of Bhriguram De v. State of W.B., 2018 SCC OnLine Cal 8141, decided on 20.09.2018, the relevant paragraph is reproduced herein:

“15.     According to the Law Lexicon, Third Edition (2012), the Latin Maxim “Suppressio veri, suggestio falsi” defines that the suppression of the truth is equivalent to the suggestion of falsehood. The suppression or failure to disclose what one party is bound to disclose to another, may amount to fraud. Where a person is found to be guilty of suppressio veri suggestio falsi for having concealed material information from scrutiny of the Court, he is not entitled for any equitable relief under order 39 of CPC (5 of 1908). [Arbind Kumar Pal v. Hazi Md. Faizullah Khan, AIR 2007 (NOC) 1035 (Pat) : (2006) 1 BLJR 430].

 

16.      The maxim that one who comes to Court must come with “clean hands” is based on conscience and good faith. The maxim is confined to misconduct in regard to, or at all events connected with, the matter in litigation. “Clean hands” means a clean record with respect to the transaction with the defendant, and not with respect to any third person.

 

17.       As authored by Ruma Pal, J. in S.J.S. Business Enterprises (P) Ltd. v. State of Bihar reported in (2004) 7 SCC 166 [Coram: Ruma Pal and P. Venkatarama Reddi, J.J.], suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. The relevant portion is provided below:

“13.      As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material from the consideration of the court, whatever view the court may have taken……..”

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

CONSUMER CASE NO. 864 OF 2020

1. LALIT KUMAR & ORS.	...........Complainant(s)
Versus
1. M/S. E-HOMES INFRASTRUCTURE PVT. LTD. & 2 ORS.	...........Opp.Party(s)

Source https://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FCC%2F864%2F2020&dtofhearing=2023-06-14 

Real Estate_NCDRC_ reasonable delay_offer of possession

 

the delay of one year and two months cannot be said to be unreasonable.  Vineet Kumar versus DLF Universal Ltd. I (2019) CPJ 444 (NC)

Suo motu order extending limitation period also applies to filing of written statement: Supreme Court

Case name: Prakash Corporates vs Dee Vee Projects Limited

[Civil Appeal No(s). 1318 of 2022 arising out of S.L.P. (C) Nos. 13751 of 2021]

Coram: Justices Dinesh Maheshwari and Vikram Nath

*Suo motu order extending limitation period also applies to filing of written statement: Supreme Court*

Para 20.2. In other words, the orders passed by this Court on 23.03.2020, 06.05.2020, 10.07.2020, 27.04.2021 and 23.09.2021 in SMWP No. 3 of 2020 leave nothing to doubt that special and extraordinary measures were provided by this Court for advancing the cause of justice in the wake of challenges thrown by the pandemic; and their applicability cannot be denied in relation to the period prescribed for filing the written statement. *It would be unrealistic and illogical to assume that while this Court has provided for exclusion of period for institution of the suit and therefore, a suit otherwise filed beyond limitation (if the limitation had expired between 15.03.2020 to 02.10.2021) could still be filed within 90 days from 03.10.2021 but the period for filing written statement, if expired during that period, has to operate against the defendant.* 

Para 21. It is also noteworthy that even before the scope of the orders passed in SMWP No. 3 of 2020 came to be further elaborated and specified in the orders dated 08.03.2021 and 23.09.2021, this Court dealt with an akin scenario in the case of SS Group Pvt. Ltd. (supra), decided on 17.12.2020. In that case, in terms of Section 38(2)(a) of the Consumer Protection Act, 2019, 30 days’ time provided for filing the written 41 statement expired on 12.08.2020 and the extendable period of 15 days also expired on 27.08.2020.  *Admittedly, the written statement was filed on 31.08.2020, which was beyond the permissible period of 45 days.*  The Constitution Bench of this Court has held in the case of New India Assurance Co. Ltd. v. Hill Multipurpose Cold Storage (P) Ltd.: (2020) 5 SCC 757 that the Consumer Court has no power to extend the time for filing response to the complaint beyond 45 days.  *After taking note of the applicable provisions of law as also the mandate of Constitution Bench, this Court referred to the orders until then passed in SMWP No. 3 of 2020 and held that the limitation for filing written statement would be deemed to have been extended.*  This Court, inter alia, observed and held as follows: -

 “12: In the present matter, it is an admitted fact that the period of limitation of 30 days to file the written statement had expired on 12.08.2020 and the extended period of 15 days expired on 27.08.2020. This period expired when the order dated 23.03.2020 passed by this Court in SMW(C) No. 3 of 2020 was continuing. 

13: In view of the aforesaid, in our opinion, the limitation for filing the written statement in the present proceedings before the National Commission would be deemed to have been extended as it is clear from the order dated 23.03.2020 that the extended period of limitation was applicable to all petitions/applications/suits/appeals and all other proceedings. As such, the delay of four days in filing the written statements in the pending proceedings before the National Commission deserves to be allowed, and is accordingly allowed.”

https://www.advocatekhoj.com/library/judgments/announcement.php?WID=14698

1. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi­ judicial proceedings

2. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.

3. *In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022,* notwithstanding the actual balance period of limitation remaining, *all persons shall have a limitation period of 90 days* from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.

4. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings".

https://livelaw.in/top-stories/supreme-court-restores-limitation-extension-period-from-15032020-till-28022022-excluded-from-limitation-189193

Real estate_Transfer of allotment after BBA but before conveyance/sale_ permissible

 

Supreme Court of India in  DLF Universal Ltd. & ANR. Vs Director, T. & C. Planning Haryana & Ors.

With Civil Appeal No. 551 Of 2003

 

 

18.  Whether the owner/colonizer in law after obtaining full payments from the allotters is prohibited from transferring the plots to the nominees of the allottees? Whether the allottees' right to nominate another person as purchaser of the property can be denied by the colonizer?

 

19.  The prevailing practice of permitting transfer of plots before registration of conveyance deed to the allottee is not contrary to the provisions of the Act or the Rules. *The only justification sought to be given by the respondent in this regard is that the State would like a separate set of stamp duty paid to it in respect of each transaction, even though there is no conveyance deed executed as yet in respect of the land in question.* This argument is wholly devoid of any merit. Section 17 (1)(b) of the Registration Act requires that where the Conveyance Deed has been prepared for effecting the transfer of a plot or other immovable property, such deed should be registered within a period of 4 months after its execution.  *It does not, however, contain any provision whatsoever requiring that a Conveyance Deed should be executed within any period of time after the execution of sale agreement between the buyer and the seller. Nor there is any provision whatsoever in the Stamp Act or Registration Act imposing any restriction on the assignment or transfer of rights under a sale/purchase agreement by the purchaser to a third party, before the execution of any conveyance deed in respect of any immovable property.*  The parties in the agreement had agreed for the substitution of the name of allottees at the sole discretion of the owner. The conveyance deed executed by the owner is the one which is executed either in favour of the allottee or his nominee as the case may be on which a proper stamp duty and registration fee is required to be paid. In any event the Director has no power under the Act or the Rules to issue any such directional together prohibiting such nomination of another person thereby substituting the allottee

 

Source: https://www.advocatekhoj.com/library/judgments/index.php?go=2010/november/67.php

The Haryana Real Estate Appellate Tribunal_ promoter liability_possession period in BBA and completion period RERA Registration Certificate

 

With respect to the liability of a promoter regarding the possession period in BBA of pre-RERA time and completion period of an ongoing project as mentioned in HRERA Registration Certificate, The Haryana Real Estate Appellate Tribunal in Appeal No.21 of 2019 titled as M/s Pivotal Infrastructure Pvt. Ltd., Versus  Prakash Chand Arohi, Decided on 20.05.2020  has categorically ruled at Para 73:

 

“We have duly considered the aforesaid contentions.  Likely or actual date of completion of the project has been mentioned to be February, 2019 in the Certificate of Registration granted by the learned Authority.  This date might have been mentioned in the Registration Certificate on the basis of declaration submitted by the promoter under Section 4(2)(l)(C) of the Act at the time of getting the project registered. This declaration is given unilaterally by the promoter to the Authority at the time of getting the real estate project registered.  The allottee had no opportunity to raise any objection at that stage, so this unilateral Act of mentioning the date of completion of project by the builder will not abrogate the rights of the allottee under the agreements for sale entered into between the parties.  The Division Bench of the Hon’ble Bombay High Court in case Neel Kamal Realtors Suburban Pvt. Ltd. & anr. Vs. Union of India and others (Supra) has laid down as under: -

 

“Section 4(2)(l)(C) enables the promoter to revise the date of completion of project and hand over possession. The provisions of RERA, however, do not rewrite the clause of completion or handing over possession in agreement for sale. Section 4(2)(l)(C) enables the promoter to give fresh time line independent of the time period stipulated in the agreements for sale entered into between him and the allottees so that he is not visited with penal consequences laid down under RERA. In other words, by giving opportunity to the promoter to prescribe fresh time line under Section 4(2)(l)(C) he is not absolved of the liability under the agreement for sale.”

 

The Hon’ble Bombay High Court by taking note of the provisions of section 4(2)(l)(c) of the Act has categorically laid down that the provisions of the Act will not re-write the clause of completion or handing over of the possession mentioned in the agreement for sale. The fresh time line independent of the time stipulated in the agreement is given in order to save the developer from the penal consequences but he is not absolved of the liability under the agreement for sale. Thus, the appellant/builder was required to offer the possession of the unit to the respondent/allottee as per the terms and conditions of the agreements, failing which the respondent/allottee will be entitled to claim the remedies as provided under section 18 of the Act.

http://mintuinfo.blogspot.com/2020/11/supreme-courtongoing-projecteffect-of.html

NCDRC_If a petition is totally bereft of merit, no notice is required

 

NCDRC_If a petition is totally bereft of merit, no notice is required

11.     The argument made by learned senior Counsel, in the hearing on admission on 01.12.2020, that in “similar” cases of other traders notice has been issued by co-ordinate benches of this Commission, is not tenable.

 

A revision petition merits issuance of notice if a prima facie case is made out on merit. If a revision petition is totally bereft of merit, no notice is required, it can (and albeit should) be dismissed on admission, with reasons recorded.

 

Mere issuance of notice by a co-ordinate bench in “similar” cases of other traders is not a binding precedent.

 

For a precedent to be binding, one, the issue in question has to be duly examined, and, two, the reasons for arriving at the conclusion arrived at have to be duly recorded. Without examination or reasons recorded on the issue in question, an order does not become a binding precedent; only if an issue is examined and decided with a reasoned order, it becomes a binding precedent. (And then, too, for further reasons recorded subsequently, the precedent could be reviewed or referred to a larger bench etc. as per the new facts and wiser counsel and as per the law.)

 

In the context of the doctrine of binding precedent, there is a material difference between interim / interlocutory Orders and final Orders / Judgments. The daily orders referred to by the learned senior Counsel are not final Orders / Judgments.  

 

Another argument made that in a “similar” case of a trader relating to charging of additional cost for carry bags, the Competition Appellate Tribunal, vide its Order dated 07.07.2005, in Appeal No. 64 of 2015, Kamble Sayabanna Kallappa vs. Lifestyle International Private Limited, dismissed the Appeal preferred against the refusal of the Competition Commission of India to order an investigation into the alleged anti-competitive conduct of the concerned trader, is also not tenable

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

 

REVISION PETITION NO. 975 OF 2020
(Against the Order dated 18/05/2020 in Appeal No. 238/2019 of the State Commission Chandigarh)

 

 

1. BIG BAZAAR (FUTURE RETAIL LTD.)
Versus
1. ASHOK KUMAR

 

 Dated : 22 Dec 2020

NCDRC_determining the pecuniary jurisdiction_value of the goods or services paid as consideration_Consumer Protection Act, 2019

 NCDRC_determining the pecuniary jurisdiction_value of the goods or services paid as consideration_Consumer Protection Act, 2019

8.       It appears that the Parliament, while enacting the Act of 2019 was conscious of this fact and to ensure that Consumer should approach the appropriate Consumer Disputes Redressal Commission whether it is District, State or National only the value of the consideration paid should be taken into consideration while determining the pecuniary jurisdiction and not value of the goods or services and compensation, and that is why a specific provision has been made in Sections 34 (1), 47 (1) (a) (i) and 58 (1) (a) (i) providing for the pecuniary jurisdiction of the District Consumer Disputes Redressal Commission, State Consumer Disputes Redressal Commission and the National Commission respectively.

9.       For ready reference the provisions of Sections 34 (1), 47 (1) (a) (i) and 58 (1) (a) (i) of the Act of 2019 are reproduced below:

“34. (1) Subject to the other provisions of this Act, the District Commission shall have jurisdiction to entertain  complaints where the value of the goods or services paid as consideration does not exceed one crore rupees:”

 

“47. (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction—

(a) to entertain—

(i) Complaints where the value of the goods or services paid as consideration, exceeds rupees one crore, but does not exceed rupees ten crore:”

 

“58. (1) Subject to the other provisions of this Act, the National Commission shall have jurisdiction—

(a) to entertain—

(i) complaints where the value of the goods or services paid as consideration exceeds rupees ten crore:”

 

 

10.     From a reading of the aforesaid provisions it is amply clear that for determining the pecuniary jurisdiction of the District Commission, State Commission or National Commission the value of the goods or services paid as consideration alone has to be taken and not the value of the goods or services purchased/ taken. Therefore, we are of the view that the provision of Section 58 (1) (a) (i) of the Act of 2019 are very clear and does not call for any two interpretations

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

Case No. CC/833/2020

M/S. PYARIDEVI CHABIRAJ STEELS PVT. LTD v NATIONAL INSURANCE COMPANY LTD. & 3 ORS.

NCDRC_No holding charges_2020

 

15.    The opposite party is claiming holding charges from the complainant, but, in view of the decision of this Commission in Capital Greens Flat Buyer Association & Ors. Vs. DLF Universal Limited & Anr. alongwith connected matters, decided on 03.01.2020, the opposite party is not entitled to such charges.  The above referred decision of this Commission, to the extent it is relevant reads as under:

   "As far as holding charges are concerned, the developer having received the sale consideration has nothing to lose by holding possession of the allotted flat except that it would be required to maintain the apartment. Therefore, the holding charges will not be payable to the developer. Even in a case where the possession has been delayed on account of the allottee having not paid the entire sale consideration, the developer shall not be entitled to any holding charges though it would be entitled to interest for the period the payment is delayed."

National Consumer Disputes Redressal

Springdale Core Consultants Pvt. ... vs Pioneer Urban Land And ... on 14 July, 2020

https://indiankanoon.org/doc/100954274/

NCDRC_Complainant_consumer_real estate_apartment booking_2020

 

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

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

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

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

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

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

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

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

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

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

Case No.	Complainant	Respondent

CC/1632/2017

RIA GUPTA (EARLIER AS RUNJHUN GUPTA) & ANR.

SS GROUP PRIVATE LIMITED

DOD: 26 Nov 2020

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

 

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

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

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

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

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

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

NCDRC_Supreme Court_Time of filing reply_Consumer Protection Act

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

Source:

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

Supreme Court_NCDRC_ compensation_no possession of apartment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

More than one Units/Flats/Apartments_Consumer_NCDRC

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

NEW DELHI

 

CONSUMER CASE NO. 976 OF 2017

 

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

 

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

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

It was also observed that:-

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

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

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

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

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

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

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

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

 

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