NO AGREEMENT FOR SALE, NO REFUND, RULES MAHARERA, MUMBAI

 

NO AGREEMENT FOR SALE, NO REFUND, RULES MAHARERA

 

Brief Facts

A group of 15 persons who had booked flats in JVPD Properties Pvt. Ltd. (commonly known as Bhagtani group) Serenity project in Powai  filed a complaint with the MahaRERA, Mumbai  claiming refund of the amounts paid by them to the builder together with interest.

The builder  had  only given them allotment letters that contained a clause saying their investments will be refunded with a15 per cent interest if project approvals do not come forth. Similar allotment letters were issued to buyers in Riyo (Mira Road), Sapphire (Dahisar) and Savannah (Kanjurmarg) housing projects. There was no Agreement for Sale.

 

Decision

By his order dated December 29, 2017, Bhalchandra Kapadnis,  the Adjudicating officer and Member, MahaRERA, Mumbai  held that if the builder had not entered into an Agreement for Sale, the purchasers could not approach RERA.

He held that Section 18 clearly stipulates that a promoter is liable to pay interest or compensation if he fails to complete or is unable to give possession of an apartment in accordance with the terms of agreement for sale.

“The Section 18 clearly indicates that there must be an agreement for sale for invoking Section 18. The allottee gets a refund only when the promoter fails to complete the apartment in accordance with the terms of agreement for sale or he is unable to give possession on the date specified in the agreement. Therefore, in the absence of any agreement for sale, section 18 has no role to play. It is necessary to bear in mind that issuance of allotment letter is the first stage and execution of the agreement for sale is the subsequent stage,” said Kapadnis in his ruling.

The affected persons are going to file appeal.
I suggest they approach the Consumer Forums.

MOFA – No conveyance for 21 years – Director of Satellite Developers sentenced to  two years jail

 

MOFA – No conveyance for 21 years – Director of Satellite Developers sentenced to  two years jail


Builders violate the provisions of the Maharashtra Ownership of Flats Act (MOFA) with impunity. But MOFA contains harsh punishments which aggrieved purchasers of flats do not resort to for fear of retaliation or ignorance or both.

The following case is a good example how effective MOFA can be.

 


Facts

 

Ravindra Hingwala, one of the flat owners of a building in Ghatkopar, Mumbai, moved the Magistrate’s Court in 2006 against Kiran Amin, Director of Satellite Developers Pvt. Ltd.  (builder) for not completing the conveyance.  The completion certificate of the building was obtained in 1989. The mandatory housing society was registered in 1996. But conveyance has still not been given.

 

Hingwala told the Magistrate that he had purchased the flat from Jasmine Builders Pvt. Ltd. In 1992, Satellite Developers Pvt. Ltd. took over the rights and liabilities of Jasmine Builders Pvt. Ltd.


Hingwala argued that according to Section 11 of the MOFA, Kiran Amin, Director of Satellite Developers Pvt. Ltd. should have conveyed the property to the housing society within four months from the registration of documents.

 

Builders Arguments

 

The Builder contended that the Complainant could not move the court on his own in the absence of the co-operative housing society.

The Builder also contended that the fact that the question of conveyance is presently a subject of arbitration is a reasonable cause for not handing over possession of the plot to the Complainant and therefore, no offence under Section 13(1) of MOFA is made out.

 

The Builder further contended that new buildings were constructed by the accused in 2003 on the same land, which is required to be conveyed to Gayatri Dham, therefore conveyance cannot be executed in favour of it.

 

(Section 13(1) of MOFA provides that if the promoter is able to show reasonable cause because of which it is not possible to give conveyance, same could not constitute an offence under this Act.)  

 

Decision and Jail

 

Sri V V Patil, Magistrate at Vikhroli Court relied on the observations of the Sessions Court which had dismissed the appeal of the accused against the issuance of process in the case. The Sessions Court had observed that a Complainant, being a member of the society, is entitled to get conveyance on his behalf from the promoters under Section 11 of the MOFA. “Promoters are under legal obligation to convey the title and execute the documents in his favour. They did not convey with this legal provision. The Complainant is, thus, an aggrieved person,” the Sessions Court had said.

 

The Magistrate pointed out that the grounds of reasonable excuse raised by the accused has been rejected by the Bombay High Court and Supreme Court over the years in appeals filed by the accused. “Moreover, the offence was committed in June 1996, and there was no other construction on the land except Gayatri Dham building. Therefore, there was no excuse for the accused to withhold the conveyance,” the Magistrate held.

 

The Magistrate said, “For more than 10 years, the complainant is awaiting conveyance of the plot, which the accused failed to give. Considering the facts of the case, the conduct of the accused and intention of the legislature behind enacting the legislation, I am of the view that the accused be dealt with necessary punishment under the Act.”


Sri V V Patil, the Magistrate found Kiran Amin, Director of Satellite Developers Pvt. Ltd, guilty under the provisions of the Maharashtra Ownership of Flats Act (MOFA) and sentenced him to simple imprisonment for 2 years.

 

I am giving the link to the full decision:

http://services.ecourts.gov.in/ecourtindia/cases/display_pdf.php?filename=/orders/200349000972006_1.pdf&caseno=Summons%20Cases%20SS/4900097/2006&cCode=12&appFlag=

No objection certificate is not required from the advocate on record when a new advocate files Vakalatnama


No objection certificate is not required from the advocate on record when a new advocate files Vakalatnama

 

Sometimes Litigants are not happy with their Advocates and want to change them.  But the Advocates demand money and resort to arm twisting to return the case papers and to give no objection.

The law on this point is very clear. No objection is not required from the previous advocate and the Advocate has to return the case papers even if money is due to him.

Karnataka High Court Decision
The following is the decision of the Karnataka High Court dated 2nd December 2016

 

THE HON’BLE MR. JUSTICE H.G.RAMESH
AND
THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA
MISCELLANEOUS FIRST APPEAL NO.6526/2013 (LAC)

BETWEEN:

KARNATAKA POWER TRANSMISSION
(BY SRI AJITH ANAND SHETTY, ADVOCATE)

AND:

1. M.RAJASHEKAR and others.


“ 1. Whether vakalatnama filed by a new advocate is to be
accepted in the absence of ‘no objection’ of the advocate
already on record, is the short question for consideration in
this case.

 

2.  Registry has raised an objection on the vakalatnama
of the appellant filed by Sri Ajith Anand Shetty, advocate;
objection is that the vakalatnama does not contain
‘no objection’ of the advocate already on record for the
appellant.


3.  We have heard Sri Ajith Anand Shetty, learned
counsel, on the objection raised by the Registry. The
learned counsel submitted that a party to a litigation has
an absolute right to appoint an advocate of his choice,
to terminate his services, and to appoint a new advocate.
Hence, a party cannot be compelled to obtain ‘no objection’
from the advocate already on record. Insisting for ‘no
objection’ from the previous advocate will amount to
putting a restriction on the right of a party to appoint an
advocate of his choice. He sought for overruling of the
objection raised by the Registry. In support of his
submission, he relied on two decisions of the Supreme
Court in R.D.Saxena v. Balaram Prasad Sharma [AIR 2000
SC 2912], and in New India Assurance Co. Ltd. v.
A.K.Saxena [AIR 2004 SC 311], and also a Division Bench
decision of this Court in Sri C.V.Sudhindra & Ors.
vs M/s Divine Light School for Blind & Ors. [ILR 2008 KAR
3983].

 

4.  To examine the question raised, it is relevant to refer
to the following observations made by the Supreme Court in R.D.Saxena v. Balaram Prasad Sharma [AIR 2000 SC 2912]:

15. A litigant must have the freedom to change his
advocate when he feels that the advocate engaged by
him is not capable of espousing his cause efficiently or
that his conduct is prejudicial to the interest involved in
the lis, or for any other reason. For whatever reason,
if a client does not want to continue the
engagement of a particular advocate it would be a
professional requirement consistent with the
dignity of the profession that he should return the
brief to the client. It is time to hold that such
obligation is not only a legal duty but a moral
imperative.

17. If a party terminates the engagement of an
advocate before the culmination of the proceedings that
party must have the entire file with him to engage
another advocate. But if the advocate who is changed
midway adopts the stand that he would not return the
file until the fees claimed by him is paid, the situation
perhaps may turn to dangerous proportion. There may
be cases when a party has no resource to pay the huge
amount claimed by the advocate as his remuneration. A
party in a litigation may have a version that he has
already paid the legitimate fee to the advocate. At any
rate if the litigation is pending the party has the right to
get the papers from the advocate whom he has changed
so that the new counsel can be briefed by him
effectively. In either case it is impermissible for the
erstwhile counsel to retain the case bundle on the
premise that fees is yet to be paid.

18. Even if there is no lien on the litigation papers of
his client an advocate is not without remedies to realise
the fee which he is legitimately entitled to. But if he has
a duty to return the files to his client on being
discharged the litigant too has a right to have the files
returned to him, more so when the remaining part of the
lis has to be fought in the court. This right of the litigant
is to be read as the corresponding counterpart of the
professional duty of the advocate.

23. We, therefore, hold that the refusal to return the
files to the client when he demanded the same
amounted to misconduct under Section 35 of the Act.
Hence, the appellant in the present case is liable to
punishment for such misconduct.


……………………. It is true that an advocate is
competent to settle the terms of his engagement and his
fee by private agreement with his client but it is equally
true that if such fee is not paid he has no right to retain
the case papers and other documents belonging to his
client. Like any other citizen, an advocate has a right to
recover the fee or other amounts payable to him by the
litigant by way of legal proceedings but subject to such
restrictions as may be imposed by law or the rules made
in that behalf. ………….”
(Emphasis and underlining supplied)

 

5.    In the context of the question raised, the following
observations made by a Division Bench of this Court in
Sri C.V.Sudhindra & Ors. vs M/s Divine Light School for
Blind & Ors. [ILR 2008 KAR 3983] are also apposite:

“7. We are therefore of the considered opinion that
the contract of vakalathnama can be withdrawn by the
client at any time. There is nothing known as irrevocable
vakalathnama. Precisely the same right has been
exercised by respondent No.1 herein (defendant No.7 in
the suit) who had earlier engaged the petitioners on
their behalf as Advocates to represent them. …………..

8. ……If the Advocate feels that he has any
genuine claim or grievance against his client, the
appropriate course is to return the brief with
endorsement of no objection and agitate such right in an
appropriate forum, in accordance with law and not
indulge in arm twisting methods by holding on to the
brief.”
(Underlining supplied)

 

6.  As could be seen from the observations made in the
two decisions extracted above, a party to a litigation has an
absolute right to appoint an advocate of his choice, to
terminate his services, and to appoint a new advocate. A
party has the freedom to change his advocate any time and

for whatever reason. However, fairness demands that the
party should inform his advocate already on record, though
this is not a condition precedent to appoint a new advocate.

 

7.    There is nothing known as irrevocable vakalatnama.
The right of a party to withdraw vakalatnama or
authorization given to an advocate is absolute. Hence, a
party may discharge his advocate any time, with or without
cause by withdrawing his vakalatnama or authorization. On
discharging the advocate, the party has the right to have
the case file returned to him from the advocate, and any
refusal by the advocate to return the file amounts to
misconduct under Section 35 of the Advocates Act, 1961. In
any proceeding, including civil and criminal, a party has an
absolute right to appoint a new Advocate. Under no
circumstance, a party can be denied of his right to appoint
a new advocate of his choice. Therefore, it follows that any
rule or law imposing restriction on the said right can’t be
construed as mandatory. Accordingly, Courts, Tribunals or
other authorities shall not ask for ‘no objection’ of the
advocate already on record, to accept the vakalatnama filed
by a new advocate.

 

8.  As observed in the decisions referred to above, if an
Advocate is discharged by his client and if he has any
genuine claim against his client relating to the fee payable
to him, the appropriate course for him is to return the brief
and to agitate his claim in an appropriate forum, in
accordance with law.

 

9.    As stated above, under no circumstance, a party can
be denied of his right to appoint a new advocate of his
choice. The right is absolute and not conditional. Hence,
the objection raised by the Registry on the vakalatnama is
overruled. Hereafter, the Registry shall not ask for ‘no
objection’ of the advocate already on record, to accept the
vakalatnama filed by a new Advocate.


Sd/-
JUDGE
Sd/-
JUDGE
KSR

 

The link to the full decision

 http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/143617/1/MFA6526-13-02-12-2016.pdf

State Police Complaints Authority, Maharashtra

State Police Complaints Authority, Maharashtra

If you are not satisfied with the working of the police, like not registering FIR, etc.

You can send your complaint to the above authority for quick redressal.

Unfortunately, it does not have a proper web site…….

 

16 November 2017

I visited the office of the State Police Complaints Authority personally to file a complaint against the police for not registering an FIR.
The office people were nice.
Let us see the outcome.

Orders of the Human Rights Commissions

 

Orders of the Human Rights Commissions

 

There are two major issues relating to orders passed by National Human Rights Commission which are faced by litigants:

1. Since there is no appeal against the orders of the Human Rights Commissions, what is the remedy?
2. Are the orders of the Human Rights Commissions simply advisory or binding.

Brief Facts

An undertrial prisoner, Omendra (son of Brahm Dutt) died on 21 May 2012 while in the custody of the District Jail, Muzaffarnagar. The prisoner was lodged in the district jail on 9 September 2011. He was under treatment of the jail hospital from 15 May 2012. On 21 May 2012, his condition became serious and he was referred to the district hospital where he was declared “brought dead”.

During the course of enquiry under Section 17 of the Protection of Human Rights Act, 1993, on 2 September 2014, the National Human Rights Commission issued a show cause notice to the Chief Secretary of the UP State Government. In response to the notice, the Superintendent of the District Jail, Muzaffarnagar submitted a reply on 10 October 2014.
After examining the facts in detail, the Commission issued an order on 4 April 2015 holding that a clear case of violation of Human Rights was made out in the death of the deceased under-trial prisoner Omendra which deserved to be compensated. Keeping in view the facts and circumstances of the case, the Commission recommended to the Govt. of Uttar Pradesh through its Chief Secretary to pay a compensation of Rs.2,00,000/- (Rupees Two Lakhs only) to the next-of-kin of the deceased prisoner Omendra. The Chief Secretary, Govt. of Uttar Pradesh, was directed to submit compliance report along with proof of payment within 8 weeks.

(The National Human Rights Commission has discussed the facts in detail in its order.)

 

Writ filed by the State Government

 

The State Government challenged the order dated 28 April 2015, communicating the decision to award compensation and submit compliance report by filing a Writ in the Allahabad High Court.

The State Government claimed that that the power of the Commission under Section 18 (a) (i) of the Act is to “recommend” to the concerned Government or authority to make payment of compensation or damages to the complainant or to the victim or the members of his family. Hence, it has submitted that the power of the Commission being recommendatory in nature, the directive to furnish proof of compliance is contrary to law and is liable to be set aside.

 

Decision of the Allahabad High Court

 

The Allahabad High Court has held that :

First, the enactment of the Protection of Human Rights Act, 1993 is an intrinsic part of the enforcement of the fundamental right to life and personal liberty under Article 21 of the Constitution. Equally, by enacting the legislation, Parliament has evinced an intention to enact legislation in compliance with India’s obligations under the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations.

Secondly, the Commission is a high powered body which has been vested with exhaustive powers to order an investigation, conduct enquiries ,etc.
The Allahabad High Court has held that an authority or a government which is aggrieved by the order of the Commission is entitled to challenge the order. Since no appeal is provided by the Act against an order of the Commission, the power of judicial review is available when an order of the Commission is questioned.
The Allahabad High Court has held that having regard to the importance of the rule of law which is but a manifestation of the guarantee of fair treatment under Article 14 and of the basic principles of equality, it would not be possible to accept the construction that the State Government can ignore the recommendations of the Commission under Section 18 at its discretion or in its wisdom. That the Commission is not merely a body which is to render opinions which will have no sanctity or efficacy in enforcement, cannot be accepted. This is evident from the provisions of clause (b) of Section 18 under which the Commission is entitled to approach the Supreme Court or the High Court for such directions, orders or writs as the Court may deem fit and necessary.

 

The High Court has held that Governed as we are by the rule of law and by the fundamental norms of the protection of life and liberty and human dignity under a constitutional order, it will not be open to the State Government to disregard the view of the Commission. The Commission has directed the State Government to report compliance. The State Government is at liberty to challenge the order of the Commission on merits since no appeal is provided by the Act. But it cannot in the absence of the order being set aside, modified or reviewed disregard the order at its own discretion. While a challenge to the order of the Commission is available in exercise of the power of judicial review, the State Government subject to this right, is duty bound to comply with the order. Otherwise the purpose of enacting the legislation would be defeated.
The Allahabad High Court has held  we find no substance in the petition. The writ petition is, accordingly, dismissed.



Result

The aggrieved party can file a writ against the order of the National Human Rights Commission, but the Commission’s order are binding and can be ignored.

 

Allahabad High Court

Hon’ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon’ble Yashwant Varma,J. (Per : Dr D Y Chandrachud, CJ)

WRIT – C No. – 15570 of 2016    Order Date :- 8.4.2016

Petitioner :- State Of U.P. And 2 Others
Respondent :- N.H.R.C. And 3 Others
Counsel for Petitioner :- Piyush Shukla

Link to the full decision:

http://www.livelaw.in/human-rights-commission-orders-not-merely-recommendatory-state-duty-bound-comply-allahabad-hc/

Maruti dealer ordered to give a new car to the purchaser in lieu of defective car.


Maruti dealer ordered to give a new car to the purchaser in lieu of defective car.

 

Grievance

 

The complainant had booked Maruti Swift Dzire ZXI car with an authorized dealer of Maruti cars. The complainant had paid Rs.40,000/- by cheque on 29/01/2009 at the time of said booking. On 23/02/2009, when complainant visited the showroom of the dealer for selection of car accessories and for making further payment, he was shown another car model of Maruti i.e. SX4 ZXI of which complainant took a test drive and decided to purchase said car i.e. SX4 ZXI instead of Swift Dzire. Complainant had paid entire consideration of Rs.7,80,000/- for the same to the dealer and he was assured that the car was new and manufactured in the current year.

 

But on 07/03/2009, when the complainant went to the showroom of the dealer for taking delivery he found that colour of car was faded, plastic/rubber covering was looking old, car was having 4-5 scratches and it was looking old. Therefore, complainant complained to the Sales Executive about condition of the car, but no satisfactory answers to the queries were given by the Sales Executive.

 

Complaint before District Consumer Forum

 

The complainant was insisting for delivering him a new car manufactured in the year 2009 or for refund of consideration but the dealer or Maruti did not give any response and as such complainant filed a complaint against the dealer and manufacturer before the Learned District Forum claiming price of the car i.e. Rs.7,80,000/- along with interest and compensation.
The District Forum partly allowing the complaint filed by the complainant directing the dealer to remove all the superficial defects in the vehicle as mentioned by the complainant and also directed the dealer to pay amount of Rs.10,000/- to the complainant towards compensation for mental agony and cost of litigation. The complaint against Maruti, the manufacturer was dismissed.

 

Appeal before the Maharashtra State Consumer Commission

 

The Complainant preferred appeal before the Maharashtra State Consumer Commission.

The Commission held as follows:

“ As regards, the order of removing superficial defects, we find that when the complainant has paid entire consideration of said vehicle for brand new Maruti car, it was reasonably expected by him from the dealer i.e. that he should provide to the complainant with a brand new car without any defect-superficial or otherwise. If the dealer would have provided the complainant the said car in brand new condition without any defects mentioned above, there was no reason for the complainant for not accepting the said car after paying entire cost of the vehicle.

” We do not find any reason for him not to take delivery of the car if it would have been in proper condition of a new brand car. This itself is enough and sufficient to establish that said car was not appearing like a new brand car and there were defects appearing on the face of it as pointed out by the complainant at the time of the said delivery.

 

“ In this situation, we find that when the consumer has paid the entire purchase cost to the dealer, he rightly expected to get a brand new car from the dealer which should appear also to be as such. However, over a period of time as the said vehicle cannot be expected to be in the condition of brand new car, we find that only removing superficial defects of the car as ordered by the Learned District Forum will not suffice and will not give justice to the complainant.

 

( The State Commission differentiated this case from two decisions of the National Consumer commission. Decision in First Appeal Nos.303 & 304 of 1993 decided on 06/11/1995 reported in I (1996) CPJ 182 NC and decision in First Appeal Nos.132 & 260 of 1993 decided on 17/05/1995 reported in II (1995) CPJ 187 (NC)).

 

 “ In the light of above discussion, we are of the opinion that as the dealer has failed to deliver the vehicle in a brand new condition without any defect superficial or otherwise in spite of receiving entire amount of purchase price, it will be just and proper to direct the dealer to refund the amount paid by the complainant along with interest. The order of the Learned District Forum needs to be modified accordingly. Hence, we pass the following order :-

  1. Appeal is partly allowed.
  2. The Dealer is directed to provide the appellant-original complainant with alternate car in a brand new condition or in the alternative to refund the amount paid by the complainant of Rs.7,80,000/- (Rupees Seven Lakhs Eighty Thousand only) along with interest @ 9% p.a. from the date of alleged delivery till the date of realisation.
  3. Compenstation ordered by the Learned District Forum regarding the amount of compensation for physical and mental agony and costs of litigation of Rs.10,000/- (Rupees Ten Thousand only) is maintained.

Note:  In this case, the Complainant had not taken delivery of the car from the showroom.

 

BEFORE THE HON’BLE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI

BEFORE: Justice A.P. Bhangale PRESIDENT A. K. Zade MEMBER

Appeal No. A/14/714   decided on 9 th October 2017

Mr.Umesh Desai  Versus 1. Maruti Suzuki India Ltd. and  2. Jay Vijay Motors Pvt. Ltd.

 

Axis Bank directed to refund the money lost due Bank Fraud

 

Bank Frauds are on the rise. The cheated are left high and dry. The Banks put the blame on their customers.

I had occasion to deal with one bank fraud of Rs. 14 lakhs. I lost before the District Forum. But the State Commission passed the order in favour of the cheated customer.
The following are extracted from the judgement.

“ The appeal is directed against order dated 24/07/2014 passed by the District Forum, Central Mumbai dismissing the Complaint. The complainant was surprised to find that amount of Rs.14,00,900/- was withdrawn from his Savings Bank Account by 22 internet transfers between the dates 08/01/2013 and 09/01/2013 to 12 different accounts of which 10 accounts were with the Axis Bank.

“ We have heard Learned Counsel Mr .Binoy Gupta for appellant …. With the help of both parties, we have gone through the material on record. The Learned Counsel for the appellant first submitted that the opponent- bank ought to have been held guilty of gross deficiency in service to the complainant since all that was done could not have been done without the negligence of the officials concerned of the opponent No.1-Bank.

“ The undisputed facts are that the complainant had Salary Savings Account with the Axis A/14/755 Page 5 of 10 Bank Ltd. at Khar (West) Branch. ……… There is increase in the grievances of the customers in relation to unauthorized banking transactions in respect of electronic online remote payment and cashless transactions e.g. internet banking, mobile banking, card not present (CNP) transactions, pre-paid payment instruments resulting in debits from their Bank accounts and customers need to be protected in unauthorized electronic banking transactions. Banks need to assure safety to the customers making them feel safe and secure in respect of the electronic banking transactions. Banks are duty bound to take appropriate steps to assess the risk and provide for robust mechanism to prevent and detect fraud and to provide for liability arising out of misappropriation or fraud.

“ In view of the reasons stated, we pass the following order :- We set aside and quash the impugned Judgment and order dated 24/07/2014 passed in Consumer Complaint case No.140 of 2013 by the District Forum, Central Mumbai and we allow the appeal with costs quantified at Rs.20,000/- to be paid to the appellant by the respondent No.1. We direct the opponent/respondent No.1-Bank to deposit back the sum of Rs.14,00,900/- (Rupees Fourteen Lakhs Nine Hundred only) unauthorizedly transferred to the accounts of other Banks on 08/01/2013 and 09/01/2013 from the accounts of the complainant. If the opponent/respondent No.1-Bank fails to deposit back the amount as directed within a month from the date of this order, the sum shall be payable together with interest at the rate of Rs.9% interest till realisation. The compensation for mental harassment to the appellant/complainant is arrived at Rs.One Lakh and litigation costs in the sum of Rs.25,000/- which shall be payable by opponent/respondent .”

HON’BLE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA,

[ Justice A.P. Bhangale ] PRESIDENT [ D.R. Shirasao] JUDICIAL MEMBER

Pronounced in Appeal No. A/14/755  on 7th August 2017.

Consumer Protection Act – Reply to complaint should be filed within 45 days, rules SC


Consumer Protection Act – Reply to complaint should be filed within 45 days, rules SC

The Consumer Protection Act (CPA) stipulates that the party against whom a complaint is lodged must file its reply within a particular time frame – 30 days which can be extended by up to 15 days.
But this stipulation has often been ignored.
The Consumer Forums have been granting extension of time repeatedly “in the interest of justice”.

(Earlier there were some conflicting judgments on the interpretation of this provision as to whether this period was mandatory, or merely procedural and directory.)

In Civil Appeal Nos. 10941 10942 of 2013 New India Assurance Co. Ltd. v/s Hilli Multipurpose Cold Storage Pvt. Ltd. the Supreme Court has resolved the conflicting interpretations.

In this decision dated December 4, 2015, a specially constituted three-judge bench of the Supreme Court has now authoritatively laid down the law that the time stipulated under the CPA must be strictly adhered to.

It observed that consumer fora are bound to follow the procedure prescribed under the CPA. The law provides that the version in reply to the complaint has to be filed within a period of 30 days or such extended period not exceeding 15 days, as may be granted. This provision is for having a speedy trial. If this period is not adhered to, it will defeat the legislative mandate to dispose of consumer cases within three months, or five months, where laboratory testing of goods is required.

Accordingly, the court concluded that the legislative mandate to file the version within a maximum period of 45 days must be strictly adhered to.
In other words, the Consumer Forums cannot grant any time beyond 45 days.

Conclusion

This landmark ruling will ensure that opposite parties do not delay filing their version to deliberately delay the proceedings in order to harass the consumer.

 

Link to the Full Decision:

http://supremecourtofindia.nic.in/jonew/judis/43159.pdf

 

22.11.17   Appeal has been filed against the above decision which is pending:

http://sci.gov.in/jonew/bosir/orderpdf/2859262.pdf

Dr. Sitesh Roy – false and misleading advertisements

 

Dr. Sitesh Roy has the following words about himself on his blog

http://drsiteshroy.com/

VOTED AMONG BEST DOCTORS IN AMERICA 6 YEARS IN A ROW

For appointments

9833553343/24145656

I had found some of the degrees listed by him were not recognized in India. Some of the abbreviations in fact did not even exist.
And who voted him among best doctors in America 6 years in a row?
I took up the matter with the ASCI.

I am reproducing their findings:

Dear Dr. Binoy Gupta,  

Re: CCC Recommendation– 1706-C.499  –Your complaint against the advertisement of “Dr. Roy Health Solutions Clinic – Dr. Sitesh Roy”
————————————————————————————————————————————————————————–
The complaint was considered by the Consumer Complaints Council (CCC) at their meeting.

The ASCI had approached the advertiser for their response in addressing the grievances of the complainant and forwarded the details of the complaint, verbatim, to the advertiser with a request to respond to the same. The Advertiser was offered an opportunity for Personal Hearing with the ASCI Secretariat which they did not avail, but submitted their written response. The advertiser had stated in their response that he has been selected officially into the peer-reviewed Best Doctors in America listing for the years mentioned on the website. The claim “Voted Among Best Doctors in America 6 years in a Row”, is an honour, that he received while practicing at UMMC, Jackson, MS. The first time he was listed was in 2005-2006 and then again in 2007-2008, then again in 2009-2010 and finally in 2011-2012. He received this prestigious, peer-review based Listing Among the Best Doctors in America for 8 years in a row, however during the website designing it was listed only as 6 years in a row. As claim support data, the advertiser provided copies of registration certificates of Maharashtra Medical Council, Mumbai and Medical Council of India, copies of certificates of `Best Doctor’ certifying that Dr. Sitesh R Roy has been selected as one of the best doctors in America for 2005-2006 and 2007-2008.

The CCC viewed the website advertisement and considered the Advertiser’s response. The CCC observed that Dr. Sitesh R Roy has provided proof of his registration with Medical Council of India as well as Maharashtra Medical Council for additional medical qualification registration with the Maharashtra Medical Council of MD in Paediatrics University of Illinois Hospitals at Chicago in 2000, and the documents have a reference to his Registration number 79537. Based on this data, the CCC concluded that the qualification of the doctor has been substantiated. This complaint was NOT UPHELD.

Regarding the “Best Doctors” award, the CCC noted that the award being mentioned was for one financial year (such as 2005-06) and not for two years as interpreted by the advertiser. Advertiser provided proof of his listing among “best doctors in America” for only two years i.e. 2005-06 and 2007-08. The claim, “Voted Among Best Doctors In America 6 Years In A Row”, was thus not substantiated, and is misleading by exaggeration. The CCC also expressed its reservations regarding the “Best Doctors” award process and lack of any disclaimers in the advertisement to provide a reference to consumers regarding the nature of this poll. The website advertisement contravened Chapters I.1 and I.4 of the ASCI Code. This complaint was UPHELD.

Regarding the complainant’s allegations regarding the advertiser not possessing the advertised qualifications, the CCC recommended that the complainant may approach the State Medical Council or police for the grievance since this matter does not fall under ASCI’s purview.

We have advised the advertiser to withdraw or modify the said advertisement by October 12, 2017. You may note that while ASCI believes in persuation to ensure self regulation in advertising content, in case of continued non-compliance, alternate remedies are available to consumers to approach an appropriate forum such as State Consumer Forum. 

Thank you for having referred this complaint to us.

Assuring you of our services in the pursuit of Self-Regulation in Advertising.

Yours faithfully,

Riddhi Dharod
Executive – Complaints Handling
The Advertising Standards Council of India

 

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.