In a case of Redevelopment Agreement with Society, on termination of Agreement with Promoter what is status of Society ? Is Society a Promoter? What happens to Rights of Flat buyers of free sale component? Does Judgment need a serious Review at earliest?
In recent Judgement of Bombay High Court in the matter of A.O Stamp No 22143 of 2019 Goregaon Pearl C.H.S.L. vs. Dr. Seema Mahadev Paryekar & Ors. that its not a promoter and how this is an erroneous Judgment we shall discuss here. Let us see first FACTS of the case: In an Appeal from Order Appellants challenged an order passed by Bombay City Civil Court at Dindoshi, Mumbai on a notice of motion. By the impugned order, the Appellant (original Defendant) was restrained from alienating, or creating any third party interest in, the suit flat. This was by way of an ad-interim protection to the Respondents (original Plaintiffs).In the above matter Appellant had opted for redevelopment of their property, who is a cooperative housing society of about sixty members, who have already handed over possession of their respective flats for redevelopment and are currently said to be roofless. The redevelopment was entrusted by the Appellant society to Respondent No.2 developer (original Defendant No.2) under a development agreement. Under this agreement, the developer was duty bound to complete the project within twenty-two months from the date of receipt of commencement certificate with a three months grace period. The project involved construction of two wings of the new building, Wings A and B. Both wings were to partly accommodate the members of the Appellant society and partly third party purchasers of the free sale component of the project. In pursuance of the agreement, all members of the Appellant society vacated their respective flats by handing over possession to Respondent No.2 developer. Respondent No.2 had executed a bank guarantee in favour of the society in the sum of Rs.5 crores for fulfilling his commitment under the agreement. On or about 17 June 2008, a commencement certificate for construction of the new building was issued by the Municipal Corporation of Greater Mumbai (‘MCGM’) to the developer. Though construction was undertaken in pursuance thereof, it was nowhere near completion even as late as by August 2016, that is to say, even after passage of eight years from issuance of the commencement certificate. In the premises, by their notice dated 16 August 2016, the Appellant revoked the Power of Attorney given by it to the developer for development of the suit property. This was followed by an arbitration petition under Section 9 of the Arbitration and Conciliation Act, 1996 (“Act”) by the Appellant society seeking inter alia appointment of a court receiver for taking over the redevelopment project and completing it. Various breaches on the part of Respondent No.2 developer was alleged in the arbitration petition. These included non-completion of the project within the stipulated period of 25 months, change of plans without the society’s consent and unauthorised construction of two additional floors for which stop-work notice was issued by MCGM. In the meantime, the bank guarantee of Rs.5 crores was invoked and en-cashed by the Appellant society. After various interim orders passed by Bombay High Court on that arbitration petition, finally, on or about 7 July 2017, the parties entered into Consent Terms. Under these Consent Terms, the total liability of the developer […]
Read moreWhen prior Registration of Real Estate Projects with Real Estate Regulatory Authority (RERA) is not required?
To understand the scope and jurisdiction of mandatory registration provisions we need to know the Statement, Object and Reasons of the Bill when introduced in Parliament. Statement of Objects and Reasons. – The real estate sector plays a catalytic role in fulfilling the need and demand for housing and infrastructure in the country. While this sector has grown significantly in recent years, it has been largely unregulated, with absence of professionalism and standardization and lack of adequate consumer protection. Though the Consumer Protection Act, 1986 is available as a forum to the buyers in the real estate market, the recourse is only curative and is not adequate to address all the concerns of buyers and promoters in that sector. The lack of standardization has been a constraint to the healthy and orderly growth of industry. Therefore, the need for regulating the sector has been emphasised in various forums. In view of the above, it becomes necessary to have a Central legislation, namely, the Real Estate (Regulation and Development) Bill, 2013 in the interests of effective consumer protection, uniformity and standardization of business practices and transactions in the real estate sector. The proposed Bill provides for the establishment of the Real Estate Regulatory Authority (the Authority) for regulation and promotion of real estate sector and to ensure sale of plot, apartment or building, as the case may be, in an efficient and transparent manner and to protect the interest of consumers in real estate sector and establish the Real Estate Appellate Tribunal to hear appeals from the decisions, directions or orders of the Authority The proposed Bill will ensure greater accountability towards consumers, and significantly reduce frauds and delays as also the current high transaction costs. It attempts to balance the interests of consumers and promoters by imposing certain responsibilities on both. It seeks to establish symmetry of information between the promoter and purchaser, transparency of contractual conditions, set minimum standards of accountability and a fast-track dispute resolution mechanism. The proposed Bill will induct professionalism and standardization in the sector, thus paving the way for accelerated growth and investments in the long run.” So main object of this Act is to regulate Real estate sector and protect flat purchasers. For which every project where there is invitation to public is required to be registered and that provision is made in Section 3 of the RERA. Let us read now provisions of Section 3 of RERA. 3. PRIOR REGISTRATION OF REAL ESTATE PROJECT WITH REAL ESTATE REGULATORY AUTHORITY (1) No promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner any plot, apartment or building, as the case may be, in any real estate project or part of it, in any planning area, without registering the real estate project with the Real Estate Regulatory Authority established under this Act: Provided that projects that are ongoing on the date of commencement of this Act and for which the completion certificate has not been issued the promoter shall make an application to the Authority for registration of the said project within a period of three months […]
Read moreCan Tenancy be Assigned or Sub-let?
Tenancy is an interest in property and right of occupation. Let us first learn provisions of Transfer of property Act,1882 ( TP Act) relating to tenancy. As per provisions of section 6 of the TP Act Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force, however under sub clause (i) it is provided that, Nothing in this section shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate, under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee. The term Lease is defined in TP Act as : 105. Lease defined. – A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lessor, lessee, premium and rent defined. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent. 106. Duration of certain leases in absence of written contract or local usage:– (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. Under Section 111 of said TP Act in case the lessee renounces his character as such by setting up a title in a third person or by claiming […]
Read moreIS DOCUMENT STAMPED WITH MAHARASHTRA STAMP SIGNED AND NOTARIZED OUTSIDE STATE VALID?
This question was put up by a Co-operative Society, who objected to accept a document signed outside state on Maharashtra Stamp paper. Than our office researched the law and came across a Judgment of Division Bench of Bombay High Court. It was filed in the year 1988. Matter went up to Supreme court, it was remanded back to Bombay High Court for hearing and final disposal. Let us see what happened in the said matter. Recently a group of matters came up for final disposal before division bench of Bombay High Court namely Indian Hume Pipe Company Limited and Others Versus State of Maharashtra and Others In Writ Petition No.2519/1988, a declaration is sought that the provisions of sections 3, 7 and 19 of the said Act to the extent to which the same seek to levy stamp duty on the copies of the instruments executed outside the State of Maharashtra are null and void. It is stated in the said petition that a Debenture Trust Deed dated 6th April 1987 (for short “the deed”) was executed by the first petitioner company in the State of Gujarat. The first petitioner and the State Bank of India are the parties to the said deed. The State Bank of India is a trustee. A mortgage of the immovable properties of the first petitioner company was made under the deed with a view to secure the issue and allotment of the debentures of the first petitioner. As a substantial part of the mortgaged property was situated in the State of Gujarat, the deed was executed in the State of Gujarat and was stamped as per the law prevailing in the State of Gujarat the Bombay Stamp Act, 1958 as applicable to the State of Gujarat). As the registered office of the first petitioner company is situated in Mumbai, the charge of mortgage was required to be registered with the Registrar of Companies in Mumbai pursuant to the provisions of the Companies Act, 1956 (for short “Companies Act”). In response to the query made by the second respondent the Superintendent of Stamps, the petitioners contended that the said original deed is not received in the State of Maharashtra. In Writ Petition No.2488/1988, a similar deed was executed by the first petitioner company in the State of Gujarat. Stamp duty was paid and it was registered in the State of Gujarat. A copy of the said deed was filed with the Registrar of Companies in Mumbai for registering the charge as the registered office of the first petitioner is in the State of Maharashtra. A demand for the difference in the stamp duty payable in the State of Maharashtra and the stamp duty paid in the State of Gujarat was made by the second respondent. That is how this writ petition is filed challenging the demand. Even in this petition, there is a challenge to the constitutional validity of the relevant provisions of the said Act in so far as they permit levy and recovery of stamp duty in respect of copies of instruments. In Writ Petition No.2534/1988, a similar deed was executed and registered […]
Read moreCAN GIFT DEED BE REGISTERED AFTER DEATH OF DONOR?
An interesting question came up recently. A Gift Deed was executed but not registered ,and it was subsequently registered after death of Donor without consent of legal heirs. The question arose is such registration valid? We scanned the provisions of the Transfer of Property Act,1882 ( TPA) and the Registration Act ,1908. (RA) Section 123 of the TPA is relevant Section. Section 4 provides that, Enactments relating to contracts to be taken as part of Contract Act and supplemental to the Registration Act.—The Chapters and sections of this Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872 (9 of 1872). 1[And section 54, paragraphs 2 and 3, and sections 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, 2[1908 (16 of 1908)].] Section 122- 123 of TPA provides that, “Gift” defined.—“Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance when to be made.—Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void. Section 123 Of TPA provides that; 123.Transfer how effected For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered. Section 47 of RA says- Time from which registered document operates.—A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. Judgments: Madras High Court in Venkati Rama Reddi And Ors. vs Pillati Rama Reddi And Ors. on 19 July, 1916 (1916) 31 MLJ 690 who answered question referred to the Bench ” whether a deed of gift registered by the donee after the death of the donor without the consent of the legal representatives of the donor is valid ” in the affirmative. It was observed that,there is nothing in this section which requires the donor to have the deed registered; all that is required is that he should have signed the registered instrument. Once such an instrument is duly executed, the Registration Act allows it to be registered even though the donor may not agree to its registration and upon registration the gift takes effect from the date of execution. The doctrine that a donor who has left his gift incomplete cannot be compelled to complete it has no application to a case like this, for so far as he is concerned he has by executing the deed done all that he need do, for registration can be effected even without his […]
Read moreCAN PLAINTIFF APPLY FOR DELETION OF HIS NAME?
To understand the issue involved let us first read the law ORDER XXIII withdrawal and adjustment of suits 1. Withdrawal of suit or abandonment of part of claim.— (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied,— (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, It may, on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff— (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiff. Judgments : In Robert Watson v. The Collector of Zillah Rajshahye Privy Council held that, “We have not been referred to any case, nor are we aware of any authority which sanctions the exercise by the Country Courts of India of that power which Courts of Equity in this Country occasionally exercise, of dismissing a suit with liberty to the Plaintiff to bring a fresh suit for the same matter. Nor is what is technically known in England as a nonsuit, known in those Courts. There is a proceeding in those Courts called a nonsuit, which operates as a dismissal of the suit without barring the right of the party to litigate the matter in a fresh suit; but that seems to be limited to cases of misjoinder either of parties or of the matters in contest in the suit; to cases in which a material document has been rejected […]
Read moreCessed Building or legal structure can be declared as Slum under Maharashtra Slum Laws? Why there is recent trend declaring such building as slum?
We have come across a new trend from Builders and Developers , they buy land along with structure and than they approach SRA ( Slum Rehabilitation) for declaring property as Slum. While discussing this issue with professional colleague we came to know its not one incident in most of cases to avoid giving more areas under Redevelopment Laws , they approach SRA where FSI is high which goes up to 4.9 or sometime between 6 to 9 as per 2034 DCR Mumbai. These structures are legal structures or Cessed Building. Yet survey report is prepared and notification is issued by SRA inviting objections from concerned parties. Now if this is trend its for the Courts to finally decide whether this trend is right and legal or ultra-vires? If so why such trend started? Whether any curb or lid is required to lay on such trend? Why SRA entertain such applications, despite of an extension of Corporation though independent records are in common which is maintained by Mumbai Municipal Corporation. Let us see provisions of Slum Law in Maharashtra. the occupiers under Section 2e of the Slum Act is reproduced hereunder: (e) “Occupier” includes, (i) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable; (ii) an owner in occupation of, or otherwise using, his land or building; (iii) a rent-free tenant of any land or building; (iv) a licensee in occupation of any land or building; and (v) any person who is liable to pay to the owner damages for the use and occupation of any land or building; The definition of owner of the said Slum Act 1971. The said definition is in Section 2f of the Slum Act. (f) “Owner” when used with reference to any building or land, means the person who receives or who is entitled to receive the rent of the building or land, if the building or land were let, and includes, (i) an agent or trustee who receives such rent on account of the owner; (ii) an agent or trustee who receives the rent of, or is entrusted with, or concerned for, any building or land devoted to religious or charitable purpose; (iii) a receiver, sequestrator or manager appointed by a court of competent jurisdiction to have the charge of or to exercise the rights of owner of the said building or land; and . (iv) a mortgagee-in-possession; 3 [but does not include, a slumlord;] Mandatory provision of Chapter II Section 4 of the Slum Act 1971 has put an embargo on declaring any property as ‘Slum’ in explanation to Section 4(1) of the Slum Act 1971. We say that the Slum Authority as no power to declare following buildings as slum areas: Cessed building; Building constructed with permission of the relevant authority at any point of time; Any building in an area taken up under the Urban Renewal Scheme. The said provision is reproduced herein below. “[Explanation. – For the purposes […]
Read morePossession taken without Occupation certificate, can flat purchaser have remedy under RERA?
When there is delay in giving possession, sometimes builder offers key and issues subjective Letter of Occupation to the flat purchaser when still construction work or completion work is going on. He asks flat buyers to occupy and say we have applied, and we will get Occupation in next 15-20 days. You may proceed to occupy. In such case the buyer loses his right to get back his money?. Let us analyze now First let us see relevant provision of Real Estate ( Regulation and Development) Act,2016 ( RERA ). 18. RETURN OF AMOUNT AND COMPENSATION (1) If the promoter fails to complete or is unable to give possession of an apartment, plot or building,— (a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or (b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act: Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed. (2) The promoter shall compensate the allottees in case of any loss caused to him due to defective title of the land, on which the project is being developed or has been developed, in the manner as provided under this Act, and the claim for compensation under this subsection shall not be barred by limitation provided under any law for the time being in force. (3) If the promoter fails to discharge any other obligations imposed on him under this Act or the rules or regulations made thereunder or in accordance with the terms and conditions of the agreement for sale, he shall be liable to pay such compensation to the allottees, in the manner as provided under this Act. On plain reading of this provision it becomes clear that date of completion referred to in this provision means the date specified in the agreement. The word “therein” refers to the “agreement” and not the date of completion revised by the promoter unilaterally while registering the project. Notes: Possession without Occupation Certificate illegal : In Sion Kamgar cooperative Society vs MCGM Bombay High Court held that ,occupying the building without occupation certificate and commencing the activity styled as Nursing Home, cannot be countenanced and permitted in law. What if Developer fails to give possession on time? : In the matter of Avinash Saraf, Neha Duggar Saraf … Complainant.Vs Runwal Homes Pvt. Ltd. COMPLAINT NO: CC006000000000032 Section 18 of RERA imposes the liability on the promoter to […]
Read moreCAN SENIOR CITIZEN REVOKE GIFT DEED? IF YES HOW?
First let us see the provision of the Law. In 2007 Legislature enacted The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 for giving legal security to senior citizens. With passage of time society has changed. Joint families are now past and we see in house either husband and wife or their children. Days are gone in family we see three or four generations staying together. Children neglect parents and don’t want to take responsibility. There were incidents where parents were thrown on roads or in old age homes. In some cases children took property as gift and deserted parents by driving out them from home. System of education, transition has changed the thought perceptions. Considering increase in number of such cases government thought it fit to give legal protection to Senior Citizens, therefore Legislature enacted the said 2007 Act. The definition of Senior Citizen under the Act is , senior citizen means any person being a citizen of India, who has attained the age of sixty years or above; the term Children is defined as children includes son, daughter, grandson and grand-daughter but does not include a minor; Welfare means provision for food, health care, recreation centers and other amenities necessary for the senior citizens. Section 5 of Act lays down obligation of the children or relative as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life. Section 5 to 7 is about Senior Citizen Tribunal and Application. We are concerned with Section 23 here . It provides that, 23 Transfer of property to be void in certain circumstances. (1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal. (2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right. (3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section 5. In series of cases it has so happened that, children take property by way of gift but thereafter they neglect or desert their parents totally. In times when parents need emotional support they give mental agony and put them in old age home. In such cases Section 23 comes to their rescue. Several courts have passed […]
Read moreCan Judge Recall his order? ‘Whether, after a judgment has been orally dictated in open Court but before it is signed and sealed, it can be completely changed?’
First let us see provisions of Code of Civil Procedure,1908 regarding passing of the order.ORDER XX : JUDGMENT AND DECREE1. Judgment when pronounced[(1)] The Court, after the case has been heard, shall pronounce judgment in open Court, either at once or, as soon thereafter as may be practicable, on some future day; and when the judgment is to he pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders :][Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within fifteen days from the date on which the hearing of the case was concluded but, where it is not practicable so to do, the Court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond thirty days from the date on which the hearing of case was concluded, and due notice of the day so fixed shall be given to the parties or their pleaders :Provided further that, where a judgment is not pronounced within thirty days from the date on which the hearing of the case wag concluded, the Court shall record the reasons for such delay and shall fix a future day on which the judgment will be pronounced and due notice of the day so fixed shall be given to the parties or their pleaders.][(2) Where a written judgment is to be pronounced, it shall be sufficient if the findings of the Court on each issue and the final order passed in the case are read out and it shall not be necessary for the Court to read out the whole judgment, but a copy of the whole judgment shall be made available for the perusal of the parties or the pleaders immediately after the judgment is pronounced.(3) The judgment may be pronounced by dictation in open Court to a shorthand writer if the Judge is specially empowered by she High Court in this behalf :Provided that, where the judgment is pronounced by dictation in open Court, the transcript of the judgment so pronounced shall, after making such correction therein as may be necessary, be signed by the judge, bear the date on which it was pronounced, and form a part of the record.]2. Power to pronounce judgment written by judge’s predecessor[A Judge shall] pronounce a judgment written, but not pronounced, by his predecessor.3. Judgment to be signedThe judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added, to save as provided by section 152 or on review.4. Judgments of Small Cause Courts(1) Judgments of a Court of Small Causes need not contain more than the points for determination and the decision thereon.(2) Judgments of other Courts- Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.5. Court to state its decision on […]
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