Email & Informal agreement are valid – Supreme Court of India

 

Email & Informal agreement are valid – Supreme Court of India

 

Supreme Court on Trimex case – Formality not required under Contract Act    

The Indian Contract Act, 1872: ss.4, 7 – Concluded contract containing arbitration clause – Valid

The  Hon’ble Supreme Court (SC) in the case of “Trimex International FZE Limited, Dubai vs. Vedanta Aluminium Limited, India” in Re (2010) 3 SCC 1”  held that in the absence of signed agreement between the parties, it would be possible to infer from   various documents duly approved and signed by the parties in the form of exchange of emails, letter, telex, telegram and other means of communication.

 
The Hon’ble Supreme Court accepted the unconditional acceptance through emails and held the same to be a valid contract which satisfies the requirements of Section 4 and 7 of the Contract Act 1872 and further it satisfies Section 2(1)(b), 7 of the Arbitration and Conciliation Act 1996.  In the absence of a signed agreement inference can be from documents approved and signed by the parties in the form of exchange emails, letters, telegrams which come within Section 10 and 2(e) of the Contract Act 1972.

Maharashtra Real Estate Regulatory Authority (MahaRERA)

 

Maharashtra Real Estate Regulatory Authority (Maha RERA)

RERA has effectively started functioning in Maharashtra.

Maharashtra Government had established Maha RERA on March 8, 2017 for regulation and promotion of real estate sector in the state, with its headquarters in Mumbai.

The RERA act, lays rules and regulation for the real estate sector. It is aimed to bring in much needed transparency, efficiency, and professionalism that will further strengthen home buyers’ confidence.
 

Gautam Chatterjee appointed first Chairman of MahaRERA 

RERA-Real Estate Regulatory Authority came into effect from May 1, 2017.

Gautam Chaterjee, an IAS Officer, has been appointed the first Chairman of the Maharashtra Real Estate Regulatory Authority (Maha RERA).


First Case to be decided under RERA

In its  first case,  taken up suo moto, the RERA authority imposed penalty of Rs. 1.2 lakhs on Sai real estate consultant firm

In its first decision in a case taken up suo moto,  the Real Estate Regulatory Authority (RERA) norms that have given a big boost to home buyers, a Chembur-based real estate consultant firm has been asked to pay Rs 1.2 lakh as fine for a misleading advertisement of an ongoing construction project.

Penalised under Maharashtra Real Estate Regulatory Authority (MahaRERA) act, Sai Estate Consultant became the first firm to be fined under the act. The Authority’s order, issued on Monday,  stated that the consultant was guilty of advertising a project which wasn’t registered with it at the time of advertising.

Under the new rules, advertising for sale of flats in projects that are not registered with the Authority is considered as a violation under the rules of the regulatory body. The firm, which advertised a project of Haware builders in Thane, has also been asked to withdraw the advertisement and restrain from promoting it in absence of the Authority’s registration.

In addition to the fine, the firm has also been asked to tender an apology. The action comes as result of a complaint, filed in this regard from consumer activist outfit, the Mumbai Grahak Panchayat. “We welcome this bold order, and hope builders and real estate agents learn lessons from it,” the activist outfit was quoted as saying by Indian Express.

The entire decision is available at the following site:

https://maharera.mahaonline.gov.in/Site/Upload/pdf/Legal-Advisor-MahaRERA-Vs-Sai-Estate-Consultant-Chembur-Pvt-Ltd-Suo-Motu-Case-No-1-of-2017-dated-5-06-2017.pdf


Important Links

The MAHARERA site states that even if you have filed a complaint in the Consumer Forum, you can with draw the same, and file the Complaint or application in RERA.

https://maharerait.mahaonline.gov.in/PDF/FAQMergedPDF.pdf

  1. If the buyer wants to file a complaint in Consumer Court, is there any bar under the Act?

Ans: No. As per section 79 of the Act, civil courts are barred from entertaining disputes (suits or proceedings) in respect of matters which Real Estate Regulatory Authority or the adjudicating officer or the Appellate Tribunal is empowered under the Act to determine. However, the consumer forums (National, State or District) have not been barred from the ambit of the Act. Section 71 proviso permits the complainant to withdraw his complaint as regards matters under section 12, 14, 18 and section 19, from the consumer forum and file it with the adjudicating officer appointed under the Act.

Web Site of MahaRERA

Link to the Web site of RERA where you can download the Act, Rules and  other documents.

https://maharera.mahaonline.gov.in/Home/Index

 

 

Builder liable to hand over areas shown open in the original plans (even if the constructions are made with the approval of the Municipal Corporation)

 

Duty of  Builder :

To pay Interest and compensation for delayed possession;  builder liable to hand  over areas shown open in the original plans (even if the constructions are made with the approval of the Municipal Corporation) and that  no fees can be collected for car parking spaces.

 

In CONSUMER CASE NO. 1479 OF 2015

DEVELOPERS TOWNSHIP PROPERTY OWNERS WELFARE SOCIETY
505, Hemkunt Chambers, 89 Nehru Place,
New Delhi – 110 019.                                                         ………..Complainant(s)

Versus

JAIPRAKASH ASSOCIATES LIMITED
Jaypee Greens, Sector -128, Noida – 201 304
Uttar Pradesh. …………………………………………………………….Opp.Party(s)

 

By its order dated 2 May 2016, NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

Decided the following issues.

 

Interest and compensation for delayed possession;  builder liable to hand  handing over areas shown open in the original plans (even if the constructions are made with the approval of the Municipal Corporation) and that  no fees can be collected for car parking spaces.

 

“ 31. This Commission in the case of M/s G.G. Associates & Ors. Vs. Commodore Ravindra Kumar Narad & Anr. Revision Petition No. 1647 of 2014, decided on 16.10.2014, placed reliance on a Ruling reported in Kalpita Enclave Co-op. Housing Society Ltd. Vs. Kiran Builder of the Hon’ble Bombay High Cour t, it was observed that “if the original plans and specifications on the basis of which the persons were persuaded to purchase the flats discloses that certain areas will be kept open it would be clear contravention of the agreement as well as the law if the promoter proceeds to construct additional structure on those places even with the sanction of the Municipal Corporation”.

 

“ FINAL ORDER :

i) It was stated by the counsel for the OP at Bar that they would send offers of possession of allotment within three months from 22.04.2016. There is already huge delay. We accept the offer made on behalf of the OP and direct the OP to handover the possession of the premises in dispute within three months from 22.04.2016 to 21.07.2016, otherwise, it will pay penalty in the sum of Rs.5,000/- per flat / per allottee/allottees, per day, till the needful is done; -15

ii) For the delayed period, the OP is directed to pay interest @ 12% p.a., on the amount(s) deposited by the respective complainants w.e.f. 39 months’ from the date of respective provisional allotment letters, till the actual physical possession as per prayer clause (a), is handed over by the OP. All the necessary documents, common areas and facilities be also provided.

iii) The OP is further directed to provide adequate car parking spaces in the project for the complainants therein and refund the excess amount, if any, collected from the members of the Complainant Society towards car parking slots, with interest @ 12% p.a., from the date(s) of charging, till its realization.

iv) As per law laid down in K.A. Nagamani (supra), we further impose costs in the sum of Rs.50,000/- payable to each of the flat allottee / allottees, total being Rs.5,00,000/-, for all the flat owners. The said amount be paid within 90 days’ from the date of receipt of copy of this order, otherwise, it will carry interest @ 9% p.a., till its realization.

Link to the full decision:

file:///C:/Users/Eleena/Downloads/National%20Commission%20judgement2016-05-02%20(1).pdf

Separate conveyance must for each housing society on one plot

 

Separate conveyance must for each housing society on a plot

Jehangir B Gai | TNN | Mar 22, 2010, 05.17 AM IST

Builder held liable to execute separate conveyance for each society building

 

BACKDROP: It is common to come across builders failing to execute conveyance to retain their hold over the land. This is not permissible, as per a recent ruling of the Consumer Forum for Mumbai Suburban District, in the case of Mamta-D Co-operative Housing Society v/s Gundecha Builders.

 

Case Study: Gundecha Builder had constructed four buildings at Prabhadevi. These were named Mamta-A, B, C and D Co-operative Housing Society. Of these, Mamta-D CHS raised a grievance against the builder, stating that its members had purchased flats by paying the entire consideration and taking possession in December 1984, and thereafter the society was formed and registered in December 1989, yet the conveyance was not executed as required by law. The society also wrote to the builder and demanded that he construct independent boundary walls for their building and execute conveyance. Since the builder failed to pay heed, in May 2001, the society filed a consumer complaint against the builder.

 

The builder contested the complaint. He claimed that that since the four buildings were constructed on one plot of land, it was not possible to get the mutation done in the land records for sub-division of the plots. Consequently, it would not be possible to execute separate conveyance for Mamta-D Society. He claimed that when the construction work on the plot is completed, he would execute the conveyance for all the buildings, and the society should bear with the delay. The builder stated that the complaint was devoid of any merit and should be dismissed. The society claimed that the builder’s stand was incorrect because the four buildings were not joined, each had a separate entrance and it was possible to construct independent boundary walls around each building.

 

After hearing advocates Uday Wavikar and Mr Wankhade for the society and advocate Bhandari for the builder, the forum observed that the builder was bound by the terms and conditions of the agreement and was also required to abide by the provisions of the Maharashtra Ownership Flats Act (MOFA). The law casts a duty on a builder to execute conveyance within four months of formation of the society. As this has not been done, the builder is guilty of violating the law and there is a deficiency in the service rendered by him.

 

The Forum noted that in the present case, when the complaint was argued out in the year 2010, the builder had not yet executed conveyance even though more than 20 years had elapsed from the date of formation of the society. The forum also observed that builders try to delay or withhold conveyance to take advantage of any subsequent increase in FSI, which is not legally permissible. Conveyance has to be executed within four months of formation of the society, and in case any additional FSI is available, its benefit accrues to the society which is the real owner of the land.

 

G L Chavan, delivering the judgment on behalf of the Bench comprising himself and President Suman Mahajan, upheld the complaint. By an order dated February 26, 2010, the builder was directed to construct an independent boundary wall for the society and also execute conveyance. Six months’ time was given for compliance of this order. In case of non-compliance within this period, the builder was liable to pay a compensation of Rs 50 to the society for each day’s delay. In addition, Rs 5,000 was awarded as costs.

 

Impact: The compensation of Rs 50 per day for each day of default and delay in executing conveyance should send a strong signal to other builders to desist from adopting similar unfair practices.

 

The latest update:

Gundecha Builders filed appeal against this order. The following is the latest status:

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI 
APPEAL NO. A/10/369
 
M/S.GUNDECHA BUILDERS Vs. MAMTA D CO-OP. HSG. SOC.LTD.
 
BEFORE: Justice R. C. Chavan, President Dhanraj Khamatkar, Member
 
   
Dated : 22nd  June 2015
ORDER: Advocate Mr.Mohit Bhansali is present for the appellant.  Advocate Mr.Uday Wavikar is present for the respondent.  Both the Ld.Counsel state that they are trying to settle the matter amicable and therefore, seek time. Time is granted.  Matter is adjourned to 26/08/2015.

 

MOFA is applicable to all old projects


MOFA is applicable to all old projects

Ahmed Ali| TNN | Feb 5, 2017, 06.30 AM IST


Some Advocates and Police Officers try to avoid filing FIRs under MPFA on the pretext that MOFA has been replaced by RERA. This is not a fact.
As today’s news item shows, MOFA is still alive and applicable.

 

MUMBAI: There is more trouble in the offing for the Jain brothers of Kamla Landmarc, a construction company, who have been arrested for duping investors. The EOW of Mumbai police has written to the ED about possible money laundering involving proceeds from the fraud that they suspect has touched Rs 200 crore.

Jitendra Jain, his brother Jinendra and brother-in-law Ketan Shah were arrested last November for duping investors by accepting bookings but not handing over flats or godowns, and forging property documents like commencement certificate and other development documents from BMC. So far, 16 FIRs have been registered against them. “As our investigation is on, more and more complaints are pouring in. Till now, there are around 150 victims who have been duped. We expect around six-seven more offences to be registered,” said a police officer.


The trio will find it difficult to obtain bail, claimed cops, because the police have invoked stringent sections of the 
Maharashtra Ownership of Flats Act (MOFA) in almost all the cases. Now, if ED begins a probe into money laundering, their woes will continue.


The police have frozen 200 bank accounts with Rs 8 crore linked to the builder brothers, FDs worth Rs 6 crore in various banks, 23 properties across the city and seven high-end cars.


Giving examples of the fraud, cops said the Jains accepted bookings for two industrial godowns at Hindustan Naka in Kandivli from two garment traders, but did not give them possession even after the deadline. During inquiries, it transpired that the builder brothers had sold 448 galas in the building, but only 107 agreements were registered, and only 96 were issued allotment letters. It also emerged that BMC had given permission for five floors, but the builders added two more. The BMC has served a demolition notice. In all, 200 were duped of Rs 21 crore.

 

In another case, the builder accepted bookings from 25 buyers and constructed a 17-floor highrise — Shimmer society in Santacruz (west) — though he had CC permission for only five floors. The buyers approached the Bombay high court, which directed the police to book the Jains. “In most of these offences, the modus operandi is almost same,” said police inspector Rajendra Pardeshi, who is heading the probe team that includes police officers Vishal Padir and Vikrant Shirshaat.

Purchase of two flats does not indicate purchase for Commercial Purpose


Purchase of two flats does not indicate purchase for Commercial Purpose

 

Till recently, it was considered that a person can occupy only one flat. If he purchases
more than one 
 flat, it was presumed that the purchase was for the commercial purpose of investment, and complaints were dismissed. The National Commission has now clarified the law on the subject.

 

Rajesh and Deepa Malhotra along with their sons Rohan and Parvan, all belonging to Gurgaon, booked two villas in Goa which were being constructed by Acron Developers. The villas were booked under two agreements, the first in the name of the parents with one son, and the second in the name of the parents with the other son. The total cost of both the villas was about Rs1.38 crores. Possession was to be given in April 2007.

 

When Malhotras inquired about the progress of the construction, the builder did not furnish this information, and instead threatened to terminate the agreements for non-payment of instalments. The builder also collected various additional amounts. Malhotras filed a complaint before the Goa State Commission against the developer and its directors for a refund of the wrongly collected amounts. The builder contested the complaint.

 

The State Commission concluded that the villas were meant that they were purchased for commercial purpose. It also observed that there were two agreements in different names, so one combined complaint could not be filed for two separate transactions. It dismissed the complaint, and ordered Malhotras to pay Rs.10,000 for misusing the provisions of the Consumer Protection Act.


Malhotras challenged this order in appeal. The National Commission observed that commercial purpose would have to be determined on the basis of the primary motive of trading or business activity for the purpose of making profit. Mere assertion by the builder that the properties have been purchased for commercial purpose is not sufficient. The National Commission also observed that two villas were purchased by the parents, one for each son. Even if a residential house, flat, or villa is let out, it would not amount to commercial purpose. Accordingly, by order dated 5.11.2015 delivered by the Bench of Justice D.K. Jain and M. Shreesha, the National Commission allowed Malhotra’s appeal, held them to be consumers, and remanded the matter back to the State Commission.

 

Link to the full decision:

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FFA%2F1287%2F2014&dtofhearing=2015-11-05

Builder directed to pay interest at the same rate he levied on delayed payment


BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI

                                                   Consumer Complaint No.CC/13/198

Mrs. Shruti Kirti Laddha,

Mr.Kirti Shivchandra Laddha,

Both R/at: 15, Staff Quarters, 2nd Floor, Institute of Chemical Technology, Matunga (E), Mumbai 400 019. …..                                                                                               Complainant(s)

                                         Versus

M/s. G.A. Builders (RNA Corpn. Group Company),

Through its Group Chairman,

Mr.Anil Aggarwal

            and

Managing Director Mr. Anubhav Aggarwal,

Having their office at: RNA Corporation Park, Next to Collector’s Office, Kalanagar, Bandra (E), Mumbai 400 051. ………………….Opponent(s)

 

BEFORE: Hon’ble Mr. Justice A.P. Bhangale, President Hon’ble Mr. Narendra Kawde, Member

For the Complainant: Advocate Mr.Vinay Rathi.

For the Opponent: None.

 

ORDER Per Hon’ble Mr.Narendra Kawde – Member:

(1) Allegations levelled by filing this consumer complaint against the opponent builder developer for failure to deliver vacant and peaceful possession of flat no.1102 on 11th floor, in the project named RNA Sagar, situated at Plot No.57, behind Apna Bazar, Pantnagar, Ghatkopar (East), Mumbai, agreed to have been sold to the complainants for total consideration of Rs.47,15,880/- even though complainants have paid substantial mount of Rs.38,04,488.15. Aggrieved thereby consumer complaint has been filed praying for directions to CC/13/198 2/7 handover legal possession of the Flat and also claimed compensation of Rs.10,00,000/- for mental and physical harassment with costs of Rs.1,00,000/-.

 

(2) It is not in dispute that the complainants have booked flat bearing no.1102 in the project developed by opponent by paying booking amount of Rs.5,00,000/- on 24/12/2009 by cheque bearing no.605889. Subsequently the complainants have paid amount of Rs.17,84,488/- by way of cheque payments which is not in dispute. Thus, the total amount paid by cheque is Rs.22,84,488/- as against the agreed consideration of Rs.47,15,880/-. It is the contention of complainants that amount of Rs.15,20,000/- was paid in cash on 24/12/2009 at the time of issuing the allotment letter. However, opponent did not issue receipt for cash payment alleged to have been paid. According to the complainants even though substantive amount against the agreed consideration is paid and they are willing to pay the balance consideration, yet, for the reasons best known to them, opponents have failed to deliver the possession.

 

(3) Opponents by filing written version tried to defend themselves on the ground that this being a redevelopment project with the co-operative society, the dispute cropped up pertaining to the use of Floor Space Index (‘F.S.I.’ in short) at the behest of co-operative housing society the matter was referred to arbitration and it was decided by the Arbitrator to restrict use of F.S.I. to 2.4 instead of 2.5 as was originally planned. Since it is redevelopment project first preference is for those old occupiers and only surplus flats constructed would have been available for sale. In view of the restrictions for use of F.S.I., construction was limited only to 11th floor instead of 16th floor as originally planned. In view of this CC/13/198 3/7 changed condition opponents are unable to accommodate the complainants to allot flat no.1102 as it was not available for sale. Opponents have always shown their willingness to refund the amount of Rs.22,84,488.15 together with interest @9% per annum under the provisions of Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act (45 of 1963) (hereinafter referred to as ‘MOFA’ in short). However, the complainants have refused to accept the refund and continued to litigate. According to Opponents cost of flat was agreed to Rs.31,95,880/- and not Rs.47,15,880/- as presumed by the complainants. Opponents stoutly denied receipt of cash amount of Rs.15,20,000/- as alleged by the complainants. In view of the developments narrated above the allotment was cancelled and accordingly, complainants were repeatedly informed by e-mails, by letters to take refund of the amount paid as narrated supra.

 

(4) Heard Advocate Mr.Vinay Rathi for the complainant. None appeared for the opponent. We have perused the record and documents relied upon by the parties

 

(5) It is not in dispute that amount of Rs.22,84,488.15 has been received by the opponents. Complainants did not demonstrate the proof of cash payment of Rs.15,20,000/-. The booking form duly signed by the complainants and opponents on 24/12/2009 indicates allotment of flat 1102 with 610 sq.ft. area on 11th floor, RNA Sagar, and also it shows payment schedule attached thereto. However, total agreed consideration is not mentioned therein. It is the contention of the opponents that the total consideration was Rs.31,95,880/-. Even if it is presumed to be correct, in that CC/13/198 4/7 case even substantial amount of Rs.22,84,488.15 was accepted by the opponent in a staggering mode after booking of the flat on 24/12/2009, knowing fully that there are restrictions for use of FSI and the flat in question cannot be allotted to the complainants after accommodating the original flat owners in the redeveloped project. According to the opponents themselves, arbitration Petition 326 of 2011 before the Hon’ble Bombay High Court and the order passed therein on 05/05/2011, restricted use of the F.S.I. Even thereafter also the opposite party continued to accept the balance payment by cheques. Even though complainants have paid substantial amount, opponent failed to execute registered agreement under the provisions of Section 4 of MOFA. Non-compliance of statutory obligation to execute registered Sale Deed, per se, amounts to deficiency of service on the part of the opponents. Since it was within the knowledge of the opponent that issue pertaining to use of F.S.I. was raised and referred to arbitration, at this point of time opponents ought to have made known these developments and their inability to fulfil the obligation to allot flat to the complainants.

 

(6) According to the opponents construction upto 11th floor was permitted with certain modifications. However, there is no approved modified development plan available on record. By their own admission construction could be done upto 11th floors, it would have been possible to accommodate allotment of flat bearing no.1102 as per booking since it was located on 11th floor. There is no reason to cancel the allotment without following the due procedure and moreover, after having accepted substantial amount of more than 80% of the agreed consideration of Rs.31,95,880/-. In case the CC/13/198 5/7 said flat was not available alternate flat ought to have been made available by accepting the balance consideration for which the complainants were ready and willing. Despite submissions on various counts disputing the claim we do not find opponents have made alternative offer of availability of flat of same size to the complainants.

(7) Failure of opponent builder to execute registered agreement and handover vacant and peaceful possession of the flat by accepting balance consideration amounts not only to glaring deficiency of service but it is unfair trade practice as well on their part and therefore, they are liable for their failure as such. At the time of arguments neither Advocate nor opponent were present and therefore, Commission could not obtain present status of the project, i.e. as to how many floors are constructed, how many flats are available etc. There is no record to substantiate that the project has been completed upto 11th floor or otherwise. Accepting the huge sum and mis-utilizing for the long period without appropriating such receipted amount for the project for which it was meant is also a serious issue nothing short of unfair trade practice. Non-fulfillment of contractual and statutory obligations on the part of the opponent is undoubtedly deficiency of service and unfair trade practice under the provisions of Section 2(1)(g) and 2(1)(r) of Consumer Protection Act, 1986.

 

(8) In view of the observations aforesaid, the contractual relations still subsists between the complainants and opponent builder as consumer and service provider under the provisions of Consumer Protection Act, 1986. It is only belatedly, that the opponents tried to refund the amount with interest @9% per annum without valid and justifiable CC/13/198 6/7 reason as the documents do not demonstrate as to how the flat booked on 11th floor and use of F.S.I. was permitted upto 11th floor could not be allotted to the complainants. There is no justification on the part of the opponent for their failure to fulfil the contractual and statutory obligation under the provisions of MOFA by handing over vacant and peaceful possession of the flat in question by accepting the balance consideration of Rs.9,11,391.85/- or to offer alternative flat of the same size in the vicinity in case it is imfeasible to fulfil the obligations.

(9) On perusal of the demand notice dated 21st April, 2010 the opponents have claimed interest @21% per annum for default payment. Therefore, the refund of amount, if any, as claimed shall carry the same rate of default interest as demanded by the opponents with a view to maintain balance of equity.

 

(10) In view of the above, we hold the opponents have resorted to unfair trade practice and indulged in deficiency of service and therefore, complaint is allowed against the opponents with following directions:

 

ORDER

 

(I ) Consumer complaint is allowed with costs quantified to Rs.30,000/- (Rupees Thirty Thousand only) payable jointly and severally by the opponents to the complainants.

 

(ii) The opponents are directed to handover jointly and severally vacant and peaceful possession of Flat bearing No.1102 on 11th floor, in the building RNA Sagar, Building No.1 at Ghatkopar East, Mumbai or CC/13/198 7/7 alternative flat of same size of 610 sq.ft in the same project or in the vicinity by accepting balance consideration of Rs.9,11,391.85/- (Rupees Nine Lacs Eleven Thousand Three Hundred Ninety One and Paise Eighty Five Only) from the complainants within a period of 45 days from the date of this order.

(iii) Complainants to pay Rs.9,11,391.85 (Rupees Nine Lacs Eleven Thousand Three Hundred Ninety One and paise Eighty Five only) to the opponents within 60 days from today. In case Opponents refuse to accept the amount, the complainants are at liberty to deposit the amount with State Commission within eight days from refusal, if any. OR Alternatively at the option of the complainants to refund the amount of Rs.22,84,488/- (Rupees Twenty Two Lacs Eighty Four Thousand Four Hundred Eighty Eight only) together with default interest @21% per annum from the date of each such deposit within a period of 45 days from the date of this order. Non-compliance shall enhance the rate of interest @24% per annum on the amount to be paid till realization.

(iv) One set of complaint compilation be retained for our record and rest of the sets be returned to the complainant.

 Pronounced on 26th September, 2016.
[Justice A.P.Bhangale] President                          [Narendra Kawde] Member

Probe cases on builders in 90 days, says Bombay High Court


Probe cases on builders in 90 days, says Bombay High Court

THE ASIAN AGE. | KALPESH MHAMUNKAR

Published  Nov 20, 2016, 1:09 am IST

Updated  Nov 20, 2016, 7:20 am IST

The Bombay High Court expressed surprise that two years has been completed but a charge sheet had not been filed yet.

 

Mumbai: If the police officer investigating any case against a builder fails to finish the investigation within 90 days and files the charge sheet, he will be answerable to the commissioner of police directly. The Bombay high court has directed the Mumbai police commissioner to evolve a mechanism to ensure that investigation of offences against builders and developers is completed within 90 days.

On failing to do so, the commissioner shall seek an explanation from the investigating officer (IO) on why he failed to complete the investigation.

The court also directed that if the commissioner feels the answer by the IO isn’t satisfactory then adverse remark should be made in the records of such officer which will be confidential.

This direction has been given by the division bench of Justice V.M. Kanade and Justice Nutan Sardesai who were hearing a criminal writ petition under which Shekhar Puranik, a builder, had approached the court for quashing of a criminal proceeding against him which was initiated by the Tardeo police station for duping a woman.

According to the petition, a woman had registered a complaint with the Tardeo police against Puranik alleging he had sold her flat to another person. For that he had duplicated signatures on the documents.

On October 14, the complainant and the builder had settled the matter between them and the builder had paid Rs 16 lakh to the woman.

On cross verification with the complainant, she stated that if she continues with the matter, she and her husband will have to go the court every month and there was no guarantee that the matter would be disposed of within a reasonable period of time.

She further stated that moreover if she had deposited this amount in the bank, in five years the same amount would have doubled.

The court also expressed surprise that two years has been completed but a chargesheet had not been filed yet. The police had informed the court that hand-writing expert’s opinion was not obtained in time and therefore, the chargesheet had not been filed. The court was not satisfied with the answer and directed the commissioner of police to inquire into the matter.

Brief Description of the Decision:

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.   1268    OF  2016

Shri Shekhar P. Puranik & Others.  …    Applicants.        
V/s.
The State of Maharashtra & Anr.   … Respondents.       

­­­ Mr. S. Sathyanarayanan, Advocate for the Applicants. 
Mr.     Rupesh   Zade  a/w.   Shailesh   Chavan,   Advocate   for   the Respondent No.2.

Shri  Patel S. Y., A.S.I. to Tardeo Police Station is present.        ­­­   

CORAM :  V. M. KANADE   AND   Ms. NUTAN D. SARDESSAI,JJ.                          
DATE   :  16th NOVEMBER, 2016

Revisionary Powers of the National Consumer Commission – Section 21 (b) of the Consumer protection Act

 

Builders often drag flat purchasers through a series of litigation to discourage them from approaching courts. National Consumer Commission is discouraging such practice.

 

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. IN this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora.

  

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

     NEW DELHI

 

REVISION PETITION NO.   1566    OF 2010
(From the order dated  30.10.2009   in Appeal No. 728/2009

of the State Commission,  Maharashtra)

 

M/s R.N.A. BUILDERS (NG)

Raja Bahadur Building,

28, Bombay Samachar Marg,

fort, Mumbai-400023.                                                          … Petitioner (s)

Versus

Shri Kalikant Mishra

R/0 F-75, Sagar Kiran,

ONGC Employees CHS Ltd.,

Navghar Road, Bhayander (E),

District Thane-401105.                                            … Respondent (s)

 

For the Petitioner      :        Mohd. Wasay Khan, Advocate      

For the Respondent  :        Mr. Nagaraj V. Hoskeri, Advocate

 

REVISION PETITION NO.   1567    OF 2010
(From the order dated  30.10.2009   in Appeal No. 729/2009

of the State Commission,  Maharashtra)


M/s R.N.A. BUILDERS (NG)

Raja Bahadur Building,

28, Bombay Samachar Marg,

Fort, Mumbai-400023.

Through Mr. Narender Gupta                                … Petitioner (s)

Versus

Shri Sujit Kumar Mishra 

Through his Attorney holder

Kalikant Mishra,

R/0 F-75, Sagar Kiran,

ONGC Employees CHS Ltd.,

Navghar Road, Bhayander (E),

District Thane-401105.                                            … Respondent (s)

 For the Petitioner                :        Mohd. Wasay Khan, Advocate 

 

BEFORE:

 

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

HON’BLE MR.SURESH CHANDRA, MEMBER
                                                                                                                  

Dated 05th July, 2011

 

ORDER

 

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

 

          Consumer Disputes Redressal Commission, Mumbai, Maharashtra (For short ‘State Commission’) vide common order dated 30th October, 2009 disposed of two appeals (No. 728 & 729/2009) filed by respondents Kalikant Mishra and Sujit Kumar Mishra as issues involved in these appeals were common and the builder (i.e. petitioner) is also common.

  1. Respondent/Complainant (Kalikant Mishra) filed complaint (No. 390/2007) whereas respondent/complainant (Sujit Kumar Mishra) filed complaint (No. 398/2007) before District Consumer Forum, Thane, for not giving possession of two flats to them.  According to their complainants they had purchased flat no. 401 & 402 on 4th floor in “A” Wing in the building known as ‘NG VIKAS’ and each flat is measuring 379.88 sq. ft. in area.  Cost of flat no. 401 was Rs.8,24,600/-.  Accordingly, agreement for sale was registered on 25-04-2006.  As per complainant, he paid Rs. 5,50,000/- out of Rs.8,24,600/- to the O.P. as part consideration.  Complainant further submits that he approached O.P. and requested for possession of the flat after receipt of balance consideration amount.  However, O.P. failed to hand over the flat to the complainant.

  2. In case of flat no. 402, complainant paid entire amount of Rs.8,24,600/- to the O.P. in full and final settlement of the price.  In spite of having accepted full consideration amount, O.P. failed to hand over possession of flat no. 402 to the complainant. 
  3. Therefore, separate consumer complaints were filed by both
    respondents/complainants alleging deficiency in service on the part of the builder.

  4. O.P./petitioner filed its written statement and denied allegations of the complainants.  It pleaded that cost of flat no. 401 was fixed at Rs.8,24,600/- and cost of flat no. 402 was Rs.7,38,600/- and Rs.86,000/- was fixed by O.P. for providing extra amenities.  Out of Rs.86,000/-, complainant paid only Rs.46,403/- for the extra amenities and failed to pay the balance amount of Rs.46,403/- to the O.P.  it is further pleaded that complainant has not paid entire amount of the flat.  Therefore, possession of the flat was not handed over to the complainant since complainant was facing financial crises and had not paid balance amount to the O.P.  Therefore, there was no deficiency in service on the part of O.P.

  5. After considering documents and affidavits placed before it, District consumer Forum partly allowed the complaints and directed O.P. to refund amount of Rs.5,50,000/- together with interest @ 10% p.a. from 25-04-2006.  It further directed O.P. to pay Rs.7,000/- towards cost and Rs.25,000/- for mental agony in case of flat no. 401, in complaint (no. 398 of 2007).

  6. In case of flat no. 402, in complaint (No. 390 of 2007) District forum directed the O.P. to refund amount of Rs.8,24,600/- together with interest @ 10% p.a. from 05-05-2006.  It further directed O.P. to pay Rs.10,000/- towards cost and Rs.25,000/- for mental agony.

  7. Aggrieved by the order of District Forum, respondents /complainants filed appeals before the State Commission, which vide impugned order, allowed both appeals and ordered that Clause 2 & 3 of the operative part of complaint (No.390/2007) regarding refund of consideration amount be substituted as under:–

“Respondent/Org. O.P. is directed to hand over possession of the flat no. 402 on 4th floor, ‘A’ Wing in the building known as ‘NG VIKAS’ admeasuring 379.88 sq. ft. carpet area to the appellant.”

  1. Similarly, clause Nos. 2 & 3 of the operative part of complaint (No. 398/2007) regarding refund of consideration amount be substituted as under:–

“Respondent/Org. O.P. is directed to hand over possession of the flat no. 401 on 4th floor, ‘A’ Wing in the building known as ‘NG VIKAS’ respondent/Org. O.P. is directed to hand over possession of the flat no. 402 on 4th floor, ‘A’ Wing in the building known as ‘NG VIKAS’ admeasuring 379.88 sq. ft. carpet area to the appellant after accepting balance amount of consideration.

Rest of the order stands confirmed.”

 

  1. It has been argued by learned counsel for the petitioner that respondents have not paid the entire consideration of the flats in question and as such possession cannot be handed over.  Accordingly, there is no deficiency on the part of the petitioner.

  2. It is further argued that Respondents have made alternative prayer in their complaint seeking damages and as such possession of the flats cannot be handed over to them.

  3. On the other hand, it has been argued by learned counsel for respondents that there is no infirmity or legality in the impugned order passed by the State Commission.  Petitioner is bound to hand over the possession of flats to the respondents and respondent in complaint (No. 398/2010) is willing to pay the balance amount of consideration as agreed earlier.

  4. In paras (No. 4 to 7) of both complaints, respondents /complainants have taken specific pleas with regard to the payments made by them during different periods.

  5. In written statement filed by the petitioner, there is no specific denial with regard to the payments made by the respondents /complainants as mentioned in their respective complaint. 
  6. Under these circumstances, as there is no specific denial made by the petitioner, the payments as stated in the complaints shall be deemed to be admitted as correct, except that in complaint (No. 398/2007) respondent in categorical terms has stated that he is always ready and willing to pay the final consideration amount of Rs.2,74,100/- towards the purchase of the flat.  Moreover, there is nothing on record to show that except for the balance consideration amount as admitted by respondent in complaint (No. 398/2007) any other amount is due towards any of the respondents.

  7. State Commission in its impugned order observed:–

          “Perused the record and memo of appeal and we are finding that the order passed by the Forum below in each complaint is erroneous.  Appellant has purchased two flats from Respondent and paid total amount of consideration of Rs.8,24,600/- for flat no. 402 and agreed to pay balance amount of consideration in case of Flat No. 401.  However, O.P. failed to hand over possession of the flat to the complainant.  Forum below awarded refund of consideration amount along with interest @ 10% p.a.  However, appellant has filed present appeals for possession of both the flats as Forum below has awarded only refund of the amount.

 

            We perused copy of complaint, wherein appellant has prayed for possession of both the flats namely flat nos 401 & 402 ‘A’ Wing and ready to pay balance amount of consideration of the flat no. 401.  The real estate prices have been increased tremendously and the complainant/appellant herein will not be able to purchase flat at the same rate, what was prevailing in the year 2006.  Therefore, by allowing both the appeals, we direct the Respondent /org. O.P. to hand over possession of both the flats to the appellants after accepting the balance amount in case of flat no. 401.”

 

  1. Since, it is a case, where purchaser of flat in complaints (No. 390/2007) has paid the entire consideration and purchaser of flat in complaint (No. 398/2007) is ready and willing to pay the balance amount, the petitioner/builder cannot deprive them of their legal right to have possession of both flats.

  2. Petitioner/builder, in the present case “wants to have the cake and eat it too” as in one case, admittedly it has received the entire consideration whereas in other case, certain amount is due, which the purchaser is willing to pay.

  3. Thus, petitioner being the builder, is enjoying possession of both flats as well as substantial amount of considerations paid by the respondents.  On the other hand, both respondents after having paid full amount of consideration in one case and in the other case after having paid substantial amount of consideration, are still without any roof.

  4. In Narsingh Singh through LRs & Ors. Vs. Shanti Devi through LRs & Ors.2010 (115) DRJ 601.  Delhi High Court observed;

          “It is well settled that where two Courts below have given a concurrent findings of facts, this Court under Article 227 of the Constitution of India shall not disturb the findings even if there is some mistake committed in appreciation of some part of evidence.  Under Article 227, this Court does not correct the mistakes of law or mistakes of facts.  The intervention of the this Court under Article 227 has to be only in those exceptional cases where the fora below had either not exercised their jurisdiction or had acted beyond jurisdiction or had ignored the well-settled legal proposition and acted contrary to law.”

 

  1. Supreme Court in Mudigonda Chandra Mouli Sastry vs. Bhimanepalli Bikshalu and others, (AIR 1999 (SC) 3095) observed;

“It was also not open to the High Court in exercise of its revisional jurisdiction to have indulged in a reassessment of evidence and thereby interfered with the finding of the facts recorded by the two Courts below.”

 

  1. Recently, Supreme Court in Rubi (Chandra) Dutta vs. United India Insurance Co. 2011 (3) Scale 654 observed that;

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. IN this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora.

 

  1. Such type of unscrupulous act on the part of petitioner/builder should be dealt with heavy hands who after grabbing the money from the purchasers enjoy and utilize their money but does not hand over the flats, on one pretext or the other.  Petitioner has made respondents run from one Fora to other Fora during last four years so that respondents cannot have any roof over their head and he (petitioner) can go on enjoying respondent’s money without any hindrance. 

 

  1. Since two Fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, in our opinion, the present petition is nothing but gross abuse of the process of law and the same is totally frivolous in nature, which is required to be dismissed with punitive cost of Rs. 1 Lakh (One Lakh).  Accordingly, we dismiss these petitions with cost of Rs. 1 lakh.

  2. Out of this cost, Rs.25,000/- each shall be paid to each of the respondent’s in these two petitions.

  3. Petitioner is directed to deposit the cost by way of cross cheque for a sum of Rs.50,000/- in the name of “Consumer Legal Aid Account” and two cheques in the sum of Rs.25,000/- each in the name of each of the respondents’ within four weeks from today.

  4. In case the costs are not deposited within the prescribed period, the petitioner shall be liable to pay interest @ 9% p.a. till realization. 
  5. The cost awarded to the respondents shall be paid to them only after the expiry of period of appeal or revision preferred, if any.

  6. Accordingly, both the revision petitions stand disposed of.

  7. List for compliance on 12-08-2011.

  Sd/-

……………………………J.

(V.B. GUPTA)

PRESIDING MEMBER

                                                                                                                                                                                        Sd/-

………………………………

(SURESH CHANDRA)

MEMBER

aj

 

Associate Member of Housing Society can be member of Managing Committee

Kalpit Mankikar

| TNN | Feb 2, 2015, 04.44 AM IST

 

MUMBAI:

In many old societies, senior citizens owned flats but would not show interest, and associate members were barred from participating in managing committee proceedings.


Section 2 (19) of the Maharashtra Cooperative Societies Act says an associate member jointly holds a share of the society with others, but whose name is not first in the share certificate. Rule 56M of the Maharashtra Cooperative Societies Rules, 1961, and Section 2 (19) (b) of the Maharashtra Cooperative Societies Act, 1960, state an associate member can vote and participate in elections but cannot become an office-bearer of the society where his name appears as an associate member in the society register. 

 

The state cooperative election authority (SCEA) has clarified that a housing society’s associate members can be part of the managing committee. This will be a shot in the arm for old cooperative housing societies as more residents can participate in their housing complex’s affairs.

 

http://timesofindia.indiatimes.com/city/mumbai/Associate-member-can-be-part-of-managing-panel/articleshow/46090740.cms