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.

Robbery of Bank Locker ……whether bank is liable for loss to the customer

 

Robbery of Bank Locker ……the bank is liable for loss to the customer under the Consumer Protection Act

  

Gist

June 13, 2017

  1. 26 lockers at a Punjab National Bank (PNB) branch in Ghaziabad near Delhi emptied out.
  2. CCTVs not working, no guard at bank.
  3. Robbery during week end by gang drilling hole into bank wall.

Facts

A group of thieves demolished a portion of the wall of the Punjab National Bank (PNB) bank’s branch in Ghaziabad  and emptied about 30 lockers.  The value would be in crores of rupees.

The police officers probing the bank robbery found that the CCTV cameras were not working, and there was no guard at the bank.

The police found that the gang had entered the bank by boring through a concrete wall. A dense cover of bushes concealed them as they demolished the wall.

According to the police, the burglary which was discovered on June 12, 2017

took place either on Saturday or Sunday when the bank was shut.


“I visited the crime spot and found that the bank lacks security measures. If any attempt was made to intrude into the bank, a siren should have gone off. But the siren did not work,” said a police officer.

 

Whether the Banks are liable for the loss


Similar locker robberies have taken place from time to time. The Banks deny any liability.

 The RBI and the public sector banks deny any liability

 A lawyer filed applications under the Right To Information Act (RTI) to the Reserve Bank of India  and 19 Public Sector Banks.

 

The Reserve Bank of India  and the 19 Public Sector Banks absolved themselves of any responsibility of items from personal lockers. They replied that Banks are not responsible for the loss or robbery of any valuables from a personal locker because the relationship between customers who use bank lockers and the banks themselves is that of a lessee (landlord) and lessor (tenant). 

 

Decisions under the Consumer Protection Act

 

The following are the arguments usually advanced by banks in such cases:


(i) That since the controversy involved in this case pertains to a criminal case which is also pending  before the competent criminal court, therefore, this Commission had no jurisdiction to decide the matter in question and thus the complaint filed by the complainant is not maintainable.

 

(ii) That as per the agreement executed between the complainant and opposite party  and as per terms and conditions thereof the complainant is estopped from questioning the bank for stolen of the ornaments in the incident of theft which had taken place in the bank.

 

(iii) That under the  conditions of the Safe Deposit Memorandum of hiring of lease,  it is clearly mentioned that the bank would not be responsible for any damages or loss to the contents kept in the safe deposits vault as a result of any act of war or civil disorder or theft or burglary and the contents would be kept by the hirer at his sole risk and responsibility. In light of above, for the loss of articles  in any incident of theft/ burglary, the bank cannot be held liable.

Various Consumer Commissions and Forums have found the bank liable in appropriate cases.  I am giving the link to one decision.

 

Decision of the State Consumer Disputes Redressal Commission
RAJASTHAN, JAIPUR

Vivek Agarwal  & Ors.  Vs  Indian Overseas Bank

19 May, 2010

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

Execution Applications under Section 25 and 27 of the Consumer Protection Act


Execution Applications under Section 25 and 27 of the Consumer Protection Act

What to do if the Opposite Party does not obey the order of the various Consumer Forums / Commissions which have attained finality…..
You have to file Execution Applications under Section 25 and 27 of the Consumer Protection Act

 

In Maharashtra State Consumer Disputes Redressal Commission
Mr Amir Ali Tharani  vs  Mr Rajesh Sukhtnkar decided on 27 September, 2010, the Commission has detailed the difference between these two provisions and the procedure to be followed.

I am giving the gist below…….I am also giving the link to the full decision at the end of this article.


            (j)      While dealing with proceeding under Sections 25 & 27, procedure as provided under Sections 13 & 14 will not be applicable;

           (k)     Proceeding under Section 27 is a criminal proceeding and the said proceeding is required to be dealt with in accordance with the provisions laid down in Section 27 only.  The procedure is a summery criminal procedure to be followed in case of offence and therefore, Chapter XX & XXI which dealt with the procedure of the summery trial of the criminal case will be and shall be applicable in a proceeding under Section 27;

          (l)      It is clarified that the orders passed by the Consumer Fora are no more deemed to be a decree of the Civil Court so as to attract provisions of Order XXI of Code of Civil Procedure.  After the amendment of Section 25, procedure as provided in old Section 25 is not applicable and therefore, the Consumer Fora cannot invoke powers under Order XXI of Code of Civil Procedure for execution of the order; after new Section 25 has been brought on Statute Book dated 15/03/2003 and therefore, neither the Consumer Fora nor the Civil Court can now execute the orders of the Consumer Fora as if they are decrees of the Civil Court as was permissible under the old Section 25;

          (m)    Under Section 27 District Consumer Forum in a composite way is constituted as a Judicial Magistrate of First Class and conferred with the powers of the Judicial Magistrate of First Class and this status and the powers have been given by Section 27(2) by applying non-obstante clause and it is clarified that said non-obstante clause is only applicable in sub-Section (2) of Section 27 by which the Consumer Fora have been declared as a Judicial Magistrate of First Class with conferment of powers as such Judicial Magistrate of First Class.  Had the said non-obstante clause been not there, it would have been necessary for the Consumer Fora to get a status of Judicial Magistrate of First Class and conferment of the powers under Section 11 of Code of Criminal Procedure.  However, in order to avoid such difficulties, the Legislature has directly conferred the powers & status of the Judicial Magistrate of First Class directly by the legislation and for said limited purpose, non-obstante clause has been introduced in Section (2) of Section 27.

            It is to be clarified that offence under Section 27(1) of the Act has been provided under the Special Act, namely, Consumer Protection Act, 1986.  So far as trial is concerned, sub-Section (3) has specifically provided for summary procedure of trial and we held that the procedure as provided under Chapter XX & XXI of Code of Criminal Procedure is required to be followed.  We also clarify that in view of provisions of Section 45 & 6 of Code of Criminal Procedure read with provisions of Consumer Protection Act, 1986 it follows that except and for the purpose, the specific procedure which has been provided under the Consumer Protection Act, 1986 rest of the procedure as may be applicable from the Code of Criminal Procedure shall be followed by the Consumer Fora while dealing with the complaint or application under Section 27 i.e. while sitting and dealing with the application under Section 27 as a Judicial Magistrate of First Class and from that angle, we have analysed the procedure in the earlier part of the judgement.

        The third party application may be permissible in a proceeding under Section 25(1) &(2) as discussed above.  However, third party proceeding is not applicable in case of proceeding under Section 25(3) before the Consumer Fora.  That may be possible while the Collector has taken steps for recovery of the amount as arrears of land revenue under Section 210 of the Maharashtra Land Revenue Code, 1966. So far as proceeding under Section 27 is concerned, there would not be a third party proceeding, since this is a criminal proceeding where the opponent who is a person allegedly committed an offence as provided under Section 27(1).  This a question is to be considered by the Consumer Fora sitting as Judicial Magistrate of First Class composite.

       (n)     There may be multiple execution applications either under Section 25 or under Section 27 depending upon the facts of the case;

 

Link to the full decision:
https://indiankanoon.org/doc/48891284/

 

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.

Lokayukta, Maharasthra  –  How to file Complaint

 

Lokayukta, Maharasthra  –  How to file Complaint with

Complaints of corruption and grievance against public servants in the state can be lodged online. The office of the Lokayukta, the state’s anti-corruption ombudsman, has launched its website.


While inaugurating the website a few months ago, Lokayukta Justice (retired) M L Tahaliyani said: “Most problems facing the country today are due to the disease of corruption that is growing at a rapid pace. The lokayukta functions to protect the interest of the common man and receives complaints from big scams to smaller grievances about pensions not being paid. The website is a way to take the office of the lokayukta closer to the people to make it more effective. The message has to go out to everyone that dishonesty does not pay.”

 

Grievance

A grievance has to be filed within 12 months of the date on which the action complained against became known to the complainant.

 

Allegation

An allegation can be made within 3 years from the date on which the action complained against is said to have taken place

 How to lodge Complaints Online

Citizens can file complaints through the Lokayukta’s website address : lokayukta.maharashtra.gov.in

The site at present includes information about the law, the ways to lodge a complaint and the format in which a complaint should be lodged.


The office of the Lok Ayukta, Maharashtra receives between 6,000 and 7,000 complaints a year. These include grievances as well as allegations of corruption.

As of now, the Lokayukta has only powers to recommend action. But a Complaint often resolves the problem.


The website address is :

lokayukta.maharashtra.gov.in

SDO Palghar Arrested by ACB, Thane While Taking Bribe Of Rs 50 Lakhs

 

SDO Palghar Arrested by ACB, Thane While Taking Bribe Of Rs 50 Lakhs

Fri, 25 Nov 2016-09:10am , PTI

 

In one of the biggest bribe cases of bribery, after the demonetisation, the Anti-Corruption

Bureau (ACB), Thane  arrested three persons including the Sub Divisional Officer (SDO) of

Palghar on Thursday for allegedly accepting a bribe of Rs 50 lakhs for giving favourable

ruling in land-related cases.

 

ACB Thane unit arrested SDO Palghar, Shivaji Davbhat (46), Nayab Tehsildar

Satish Manivade (57) and Jayesh Patil (25). Jayesh worked as Davbhat’s driver, an ACB

official said.

 

 

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

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

Builder constructs illegal flat on car parking area and sells it


Builder constructs illegal flat on car parking area and sells it

 

The Maharashtra State Consumer Commission has ordered Shreekrishna Developers – a builder to pay to a buyer –  the complainant Rs 26 lakh, the 2012 (year of filing the complaint) value of a 525 sq feet flat in the vicinity. The buyer who had taken possession of the flat in 2005 after buying it for Rs 4.95 lakh, realized that anomaly after the society refused to induct him as a member.

“From perusal of the occupancy certificate, it is seen that after getting the occupancy certificate from the corporation, the opponent (Shreekrishna Developers) has constructed the flat without the sanction of the municipal corporation. Thus, there is a clear-cut deficiency in service on the part of the opponent who also adopted unfair trade practice by carrying out the unauthorized construction and allotting the same to the complainant,“ the Maharashtra State Consumer Disputes Redressal Commission said.

The spot where the flat was constructed was to be used for parking. The space will now be handed back to the society .

The complaint was filed by flat purchaser Sunil Gade in 2012. Gade told the commission that after receiving a negative response from the society about his membership, he approached the builder. When he got no response from the builder, he issued a notice through an advocate in November 2011and requested the builder to regularise the flat from the Navi Mumbai Municipal Corporation (NMMC) at its costs. Gade however, received a reply with the remark “not claimed“. In the commission, the builder submitted that Gade himself had chosen to stay on the ground floor. It contended that as the flat was constructed on Gade’s request and the possession had already been handed over, there was no deficiency in service.

The builder further stated that if Gade did not want to continue living in the flat, he could take back his entire payment along with interest and surrender the flat.

The full decision dt. 4 October 2016 is available at the following link:

file:///C:/Users/Eleena/Downloads/judgement2016-10-04.pdf