Category: Litigation Legal

HC allows child visit and custody to father under DV Act

Bombay High court IN,  Payal sudeep laad @payal Sharma v/s Sudeep Govind laad and another:

Section 21 of DV Act provision reads as follows:

21. Custody orders.: Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangement for visit of such child or children by the respondent :

Provided that if the Magistrate is of the opinion that any visit of the respondents may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.”

As such an application was made by the husband seeking for the custody of child. the wife has contended that the husband could have approached the Court under Section 26 of the Hindu Marriage Act seeking custody of the child.

The remedy lies before other forum and the application before the Trial Court in the present case was not maintainable. that the child was in custody of mother (applicant) from 2nd December 2017. In the complaint under the DV Act preferred on 17th July 2017, the same indicate that the applicant had preferred the said complaint u/s 18, 19, 20, 21, 22 and 23 of DV Act. The form/complaint reflects that the applicant had sought relief under the various provisions including Section 21 which relates to custody orders. It is the contention of the applicant that unless the applicant prefers any application under Section 21 for custody order, the access cannot be granted to the husband on an independent application preferred by him. It is contended that since section 21 does not provide any right to the husband to prefer such application, and since the legislature has not provided such right to the husband, except as stipulated in Section 21 of DV Act, the Court ought not to have entertained the application and granted relief as prayed by respondent no.1.that the wife had preferred an application under the Domestic Violence Act of 2005 for various reliefs against her husband and his family members. During the pendency of the aforesaid application, the husband filed an application under section 21 of the said Act praying that permanent custody of the minor child of the parties may be given to him and in the alternative it was prayed that visitation right may be granted to him to meet the minor child of the parties. A petition for grant of decree of divorce was also filed by the husband under Section 13 of the Hindu Marriage Act and the Family Court Jaipur with the consent of the parties passed an order regarding visiting rights of the Respondents to the effect that the petitioner will remain present along with the child on Second Saturday of every month and Respondent will be entitled to meet the child during that period. For the reasons stated herein above, I do not agree with the said decision and it was dealt in the peculiar facts and circumstances of the said case.

The application filed under Section 21 of the Domestic Violence Act seeking interim custody is maintainable before a Magistrate exercising jurisdiction in relation to area where family Court is established and the Magistrate has jurisdiction to decide such an application in accordance with law.

Thus the orders passed regarding custody of child under sec.21 of the DV act was allowed and thereby husband was given visiting rights and child custody for certain period of time in a month, under this provisions of the act.

Concurrent Jurisdiction of High court and sessions court under sec,438 of Cr.P.C For Anticipatory Bail

Bail Under Sec. 438 of Cr.P.C And Jurisdiction of Courts

The concept of bail came out with a view from the clash between the state’s power to restrict and deprive the liberty of a person who allegedly have committed a crime and the presumption of guileless or deceitful in his favor. the meaning of the word bail mean surety. The bail shall be granted on consideration of following criteria such as:

  1. Any prima facie or reasonable ground to believe that accused has committed the offence.
  2. Nature and gravity of charge
  3. severity of the punishment
  4. danger of accused absconding or fleeing if released on bail.
  5. character, behavior, means, position and standing of the accused
  6. likelihood of offence being repeated]
  7. reasonable apprehension of the witnesses being tampered
  8. danger of justice being thwarted by grant of bail.

The object of Section 438 CrPC has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of Section 438 CrPC cannot also be invoked to exempt the accused from surrendering to the court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amount to violence to the provisions of Section 438 CrPC, since even though a charge-sheet may be filed against an accused and charge is framed against him, he may still not appear before the court at all even during the trial.

Section 438 CrPC contemplates arrest at the stage of investigation and provides a mechanism for an accused to be released on bail should he be arrested during the period of investigation. Once the investigation makes out a case against him and he is included as an accused in the charge-sheet, the accused has to surrender to the custody of the court and pray for regular bail. On the strength of an order granting anticipatory bail, an accused against whom charge has been framed, the provisions of Sections 438 and 439 do not call for a restricted interpretation. The citizen has the right to choose. His application should be considered. Each case should be examined on its own merits. If it is found that the ground for grant of bail is not made out, the Court has the full jurisdiction to deny relief. Equally, if a case is made out the citizen’s liberty should not be allowed to be curtailed. It is for the citizen’s right to choose the forum to approach the Court and to make a prayer for bail.

Thus the High Court and the Court of Session have concurrent jurisdiction under Section 438 of Cr.P.C. It is for the accused to choose the forum and the same cannot be restricted by construing the provision of Section 438 of Cr.P.C.

RERA V/s Consumer Protection Act Vs Insolvency And Bankruptcy Code 2016

RERA V/s Consumer Protection Act Vs Insolvency And Bankruptcy Code 2016

Real Estate (Regulation and Development) Act, 2016 (RERA):
A recently promulgated legislation, RERA seeks tocurb the shortcomingsof respective Ownership Acts prevailing in each state. A centre enacted legislation, RERA seeks to provide uniform laws throughout the states, for protecting the interest of home buyers and seeks to increase transparency in functioning of construction companies and reduce the chances of default or misappropriation of funds by Builders.

RERA provides for establishment of following authorities/Tribunals:
1.Real Estate Regulation Authority (“RERA Authority”) in each state;
2.Real Estate Appellate Tribunal in each state.
It seeks to provide for establishment of authorities/tribunals for providing mechanisms to flat purchasers/home buyers for expeditious Redressal of complaints under the Act.
It basically and broadly provides for remedy for following breaches/contraventions by Promoter/Real Estate Agent:
1.Inviting/Offering for sale etc. without registration of project by Promoter/Developer;
2.Acting as agent or inducing/facilitating purchase by Home Buyer without registration as Real Estate agent or project being registered with Real Estate Authorities;
3.Any unfair practice being adopted by Promoter/Developer/Real Estate Agent;
4.Violation of terms and conditions by Promoter/Developer subject to which approval granted by Competent Authority;
5.Adoption of fraudulent practice by Promoter/Developer;
6.Violation of any provisions of the Act/Rules/Regulation.

Consumer Protection Act, 1986 (CPA):
CPA enacted to provide speedy Redressal mechanism to”CONSUMERS”under the CPA by establishments of Forums at District, State and National level. CPA only applies in case of CONSUMER alleges Unfair Trade Practice or Deficiency with respect to Goods or Services. Each of the terms are well and broadly defined under the Act. The home buyers were also included within the purview of the Act by interpreting the word “Services” under the Act to include construction, since construction is also a service.Otherwise transactions in Immovable Properties are outside the ambit of CPA since they are not goods within the meaning of the Act. Hence transaction relating to sale /exchange of Immovable Properties, specific performance of the same, claim for damages for non-performance of agreement of sale is outside the purview of CPA since Immovable Properties are not “goods” within the meaning of the CPA.

Insolvency and Bankruptcy Code, 2016 (IBC):
IBC was one of the most successful piece of legislation promulgated by the Parliament to provide a uniform code for Insolvency Resolution of all persons whether Individual, Partnership Firm or Corporate entity. It contains different chapters for Insolvency of different types of persons. For Corporate Entities it provides for Corporate Insolvency Resolution Process (CIRP)for 6 months to provide an opportunity to revive the Corporate Entity if Financial Creditors of the Company by requisite majority so agree by approving Resolution Plan and to prevent further erosion of capitaland if possible to appreciate the capital of the Company.If CIRP fails, the Company goes into liquidation and liquidation in done in the manner provided in the IBC.

By virtue of recent amendment in August 2018, the Allottees of project are considered and are deemed to be Financial Creditors within the meaning of the Act. Hence they are entitled to maintain Insolvency Application and in case of admission of Insolvency Application by other Creditors, Financial or Operational, are entitled to participate and vote in meeting of Committee of Creditors that is constituted.

Comparing Remedy Under Rera Vs Cpa Vs Ibc On Certain Parameters From Home Buyers Perspective:

Time RERA has been formed recently and it takes on an average couple of years for Redressal of Grievances. It takes about 5-6 Years for Redressal of Grievance or adjudication of dispute by Consumer Forum. It takes about 6 Months for adjudication of Insolvency Application and to admit the same by Adjudicating Authority.
Who can file A Purchaser/Home Buyer or prospective purchaser/Home Buyer offered flat can file Complaint irrespective of the fact that such person is Corporate Entity or Individual. A Consumer i.e. a person who satisfies the requirement under Section 2(d) of CPA can file complaint. Thereby only a person, typically Individual who enters into agreement for purchase of Flat can file complaint when he purchases the same for his individual use and residence. Since by recent amendment in August 2018, the Allottee of Project is considered a Financial Creditor,any person whether an Individual or Corporate Entity can file an Insolvency Application under Section 7 of IBC. Also allottee who is competent to file Application in my view can be both purchaser under Redevelopment or existing tenant/owner/occupant of Flat/Apartment.
Application/Complaint to be filed before whom Complaint is to be filed before Real Estate Regulatory Authority established in each state by respective State government where the project is situated. Complaint is to be filed before Consumer Forum having territorial and pecuniary Jurisdiction to hear Complaint. Insolvency Application is to be filed before Adjudicating Authority i.e.
a)National Company Law Tribunal having territorial jurisdiction over the place where registered office of Corporate entity is situated in case of Corporate Entities;
b)Debt Recovery Tribunal in the territorial jurisdiction of which individual resides, carries on business or personally works for gain.
Appellate Structure under the Act. Real Estate Regulatory Authority;
B.Real Estate Appellate Tribunal;
C.High Court;
D.Supreme Court.
a)District Forum;
b)State Forum;
c)National Forum;
d)Supreme Court.
*A writ petition under Article 226 & 227 can be preferred in exceptional circumstances against the decisions of the Forums.
a.National Company Law Tribunal;
b.National Company Law Appellate Tribunal;
c.Supreme Court.
*A writ petition under Article 226 & 227 can be preferred in exceptional circumstance’s against the decisions of the Company Law Tribunals.
Accessibility There are typically as of now, one or two Real Estate Regulatory Authority offices in each state which has constituted the Authority under the Act. District Forums are established in every district of the State. Furthermore State Commission presides in capital of each state and sometimes has benches in other parts of the State. National Commission presides at Delhi and has circuit benches in various parts of the Country which are rotating. NCLT is typically constituted for each state andpresides at one place in the state or one NCLT is commonly empowered and is having jurisdiction over two states.
Execution/Reliefs provided Real Estate Regulatory Authority typically exercise its power by way of an order to impose fine, deregister the project, include the promoter in list of defaulters, direct completion of project in manner provided in consultation with State Government and pass appropriate orders incidental thereto.
*Since Home Buyers are particularly interested in completion and handing over possession of their flats, RERA Authority provides for stages wise utilisation of moneys paid by them and a separate account to be maintained for the purpose. In case of default to complete project or other non-compliances, RERA provides for various measures to complete the project and empowers the authority for the same for that home buyers are not kept in lurch. Also it tries to penalise builders by aforesaid measures so that they are prevented and discouraged from undertaking further projects when they do not have requisite resources.
The Consumer Forum has the power to execute its own orders. This makes execution of orders also an expeditious affair in comparison to regular suits or execution of orders passed by various Courts/Quasi-Judicial Forums. Also since scope of Consumer Act is limited, the relief and consequently is execution is comparatively an expeditious affair. Once, NCLT admits the Insolvency Application,IRP comes into the picture to manage the affairs of the Company and in case of failure of Corporate Insolvency Resolution Process (“CIRP”) (In case of Developer being a Corporate Entity), Liquidation would be commenced. NCLT monitors the entire process and time to time, various reports are required to be filed with NCLT.In other cases liquidation would be commenced by DRT.

Analysis Of Provisions Relating To Granting Of Reliefs Under The Acts:
A.*By virtue of provisions of Proviso to Section 71(1)of RERA it is explicitly clear that a person can avail one of the two remedies, either file Complaint with RERA Authority or before appropriate Consumer Forum. This is due to the fact that in both the remedies one is seeking or can seek recovery of money along with interest, compensation and costs. It proceeds on principle of constitution under Article 20(2)of Indian Constitution provides for equitable principle “that nobody can be prosecuted and punished for the same offence twice or more times”.

B.However where different reliefs are to be sought from RERA Authority and Consumer Forum, different complaint in both the institutions is maintainable. However only two remedies which RERA can provide, apart from slightly more expeditious disposal of cases which the consumer forums are not competent are:-

i.Power to issue directions for completion of project in consultation with State Government by appointment of suitable agency;
ii.Power to include Builder/Developer in the list of defaulter and/or to prohibit it from undertaking new projects.

C.However Section 71(1) read with 72(2) of RERA makes it abundantly clear that the bar is only in respect of remedies that can be commonly obtained under both the Authorities. Hence one it always at liberty to approach RERA or Consumer Forum for remedies not availed from before in other Forum.

D.Also proviso to Section 17(2) of RERA provides for handing over possession within 30 days of obtaining occupancy certificate and execution of conveyance within 3 months of obtaining occupancy certificate. However it does not provide for deemed conveyance unlike Maharashtra Ownership of Flats Act, 1963. In RERA provisions of Section 17 read with Section 34 and Section 38 in my view, one cannot seek relief as to directions to be issued to Developer/Builder for complying with conditions for granting Occupation Certificate and obtaining grant of the same. Even in case of failure of Developer/Builder to hand over possession or grant conveyance,the RERA can only impose monetary penalty and relief in the nature of monetary interest. This is in my view due to the fact also that RERA is an “Authority” formed for limited purpose. A statute cannot be interpreted so liberally so confer power on an authority which the Act does not explicitly provide.RERA in my view is administrative authority, having regard to the scheme of the Act, though it may perform quasi-judicial or quasi legislative functions incidentally. However most decisions of RERA are administrative decisions for enabling it to carrying out its functions as administrative authority under the Act.

E.However Consumer Forums have the power to grant reliefs in the nature of directions to the Developer to provide Occupation Certificate, handover possession and grant Conveyance in favour of ultimate entity formed of flat/apartment purchasers. Since Section 14(1)(e) of CPA provides for power of Consumer Forum to issue directions “to remove the effects or deficiencies in the services in question, the word”removal of deficiency in service” would also include power to grant reliefs as aforesaid as stated previously, since construction is also “Service” within the meaning of CPA.

F.However since Home Buyer/Flat Purchaser are deemed to Financial Creditors under IBC, they can file an Insolvency Application under section 7 of IBC. However an interesting question would arise as to when would there be “Default”on the part of Developer. One has to always keep in mind that construction activity or Real Estate Projects are complex in nature, hence a holistic and equitable view of the transaction has to be taken. A number of transactions and agreements are entered into between Developer, Flat Purchaser, Owner and/or Planning Authorities. Every delay in possession than delivery date or non-observance of agreement or statutory possession cannot be construed harshly against the Developer. On admission of Insolvency Application, in case against Developer being a Company,moratorium would come into force for a period of 6 months which would lead to stay of all proceedings before every court. However same does not apply to criminal proceedings and writ proceedings as held by Hon’ble NCLAT in case of Canara Bank vs Deccan Chronicles Holdings Limited.

G.A company or corporate entity would sought to be revived in case eligible person submits a Resolution Plan and the same is approved by requisite majority of Creditors in the Committee of Creditors. On failure of the same the Company would go in liquidation. Hence after company goes under liquidation, the assets/liabilities would be liquidated in the manner provided in IBC. Flat Purchasers would have priority in discharge of its debts over other creditors and would also have a charge on the property/flat allotted to them at whatever stage of construction it might be under. In case of builder/developer being Individual or partnership firm, then same would straight away go in liquidation.

H.However, if builder is complying with provisions of RERA as to separate bank account opened for money received with respect to flat under construction, and has been unable to complete construction due to financial paucity or any other reason, he will be financial creditor only with respect to interest on amount paid from date of default till completing project or till RERA taking action to complete the project if flat purchaser does not choose to terminate the agreement.

I.However if flat purchaser chooses to terminate the agreement, then he becomes Financial Credit To the extent of payments made to Developer plus interest due from the date of default. DATE OF DEFAULT in my view would be of critical importance and it should be date on which there has been failure on part of builder to provide possession as per the agreement or date for completion of project disclosed to RERA,whichever is earlier. Default can also mean valid termination of agreement as per clauses of the binding agreement or under the provisions of any Act and DATE OF DEFAULT would mean the date from which termination is effective.

J.Insolvency Would be optional remedy, which would be only feasible if company does not have sound financial position and the same is deteriorating. As to the Applicant would have better prospects at recovering his money along with interest. It will be fruitful remedy when the Applicant only seeks to recover money invested along with interest predominantly.

K.If the Developer has sound financial position and flat purchaser seeks to obtain specific performance as to completion of the project,then filing an Insolvency Application may not be feasible option.

L.If flat purchaser is Consumer, Consumer Forum would be a great alternative remedy to obtain specific performance. However if flat purchaser is not competent to obtain relief under CPA, then Civil Courts are the only remedy he has for specific performance and compensation etc.

M.Also RERA is more effective remedy when the project is purely development project or there are large numbers of sale flats which have been sold. This is because in a pure Redevelopment Project, there are less number of tenements available for Developer to be sold and hence less moneys raised and kept in a separate escrow account to be utilized for the purpose of completion of project. Also if more number of charges or mortgages are created on the sale component , then the matter would be only more complex as banks/FI would also put forth their claim on the moneys in the Escrow Account.

Conclusion Of Above Observations And Analysis:-
a.If person is a consumer and seeks performance of statutory obligation or compensation in respect thereof, then Consumer Forum is a better and effective remedy especially in case where Developer has financial ability to pay. Also he may file a complaint with RERA to blacklist Developer and other reliefs which RERA can provide but consumer forum cannot.

b.If a person is not a consumer,then RERA would be more appropriate remedy.

c.If a person is not a consumer and seeks specific performance of statutory obligations from Developer, his only remedy would be to file a regular suit. However, for compensation and other reliefs he may approach RERA.

d.If Person, whether consumer or not, is seeking only return of his money, especially when Developers financial position is deteriorating, then Insolvency Application before NCLT would be appropriate remedy more so when its redevelopment of property that does not involve many flat in sale component.

e.Also them ore the project is closer to the verge of completion, RERA would be a more effective remedy especially if Flat Purchaser/Home Buyer desires to obtain a Flat and vice-versa coupled with the consideration that RERA can also provide compensatory reliefs.

f.Insolvency can always be availed as an alternative remedy when a Flat Purchaser feels that financial position of Developer is deteriorating and Developer will not be able to complete the project and return the money with interest to be able to prevent further deterioration. It will help to obtain recovery of maximum amount of money invested along with Interest.Completion of project may take several years due to various practical difficulties that may arise in the completion of project. Also execution of order for payment of money will not have any fruitful result if Developer does not have financial ability to pay it.

g.In terms of execution, Insolvency since being process to liquidate the assets of entity or person will be a more lucrative remedy in case there is high probability that Developer may not be in position to return the money invested.Consumer Forum since having power to enforce their own orders also provide great remedy in case where builder has completed construction but delayed possession or not complied with statutory obligation to obtain reliefs in respect of both.

h.The Flat Purchaser/Home Buyer can always initiate criminal proceedings against Developer against fraud or other criminal offences or acts committed by it.

Benami Transactions Amendment Act 2016

Benami Transactions  Amendment Act 2016

The amendment of the above act is to amend the prohibition of Benami Property transactions act 1988. The effect of this amendment act is retrospective i.e. with effect from 1988.

  • After the introduction of the provision of Benami transactions act, 1988, as there were some infirmities in the said 1988 act and to set right the rules were required to be framed but as the rules were not framed as such the said act 1988 did not come into force.
  • However, later a new bill, “The Benami Transactions Prohibition) bill, 2011, was to replace the provisions of “The Benami Transactions Prohibition) act 1988, was introduced in lok sabha in July 2011. this bill was referred to the standing committee on Finance by Loksabha for its examination. the report was submitted by the standing committee in July 2012. The standing committee made various recommendations and suggested changes to the proposed bill which was introduced in the loksabha. But The Benami Transactions Prohibition) bill 2011 however lapsed in view of the dissolution of the 15th
  • the new bill The Benami Transactions Prohibition) bill 2015 incorporating the various features was prepared and forwarded to the ministry of Law. It was suggested by the ministry of law that it would be advisable to comprehensively amend the existing provisions of The Benami Transactions Prohibition) act 1988, so that the offences committed during the last 26 years are also covered. this would enable action against The benami Transactions” took place on or after 1988 Act.
  • Taking into account the provisions of The benami Transactions Prohibition (Amendment) bill 2015, the standing committee on finance headed by Dr.M.Veerappa Moily, has suggested comprehensive changes to the existing The Benami Transactions Prohibition) act 1988. therefore the present amendment act 2016 is to amend the 1988 and not proposing a new Act.
  • In this background, The benami Transactions Prohibition) Amendment act 2016 has come into force;
  • But no where the definition of The Benami Transactions “ as per the amendment act 2016, needs to be examined taking note of the following to evaluate whether the transactions for acquiring land fills out of the ambit of The Benami Transactions”
  1. The Funds used for acquiring the land/Immovable property shall be out of Known source of Income”
  2. The acquisition/holding of land/immovable property should be a genuine and bonafide transaction:
  • The transactions to acquire/hold the land/immovable property should be under bonafide arrangements entered into in relation to transfer of immovable property
  1. Any bonafide transition should not be deemed as Benami” when it involves transfer of Immovable property entered into under:
  2. a registered agreement to sell
  3. A registered GPA
  4. A registered Development agreement on payment of stamp duty.
  5. Benami Transaction does not cater to situation where the consideration is bonafide, with paid or provided by a lender under a Financial arrangement.

A transaction or an arrangement- the property is used for the immediate or future profit, direct or indirect, of the person who has provided the consideration, except when the property is held by a person standing in a fiduciary capacity for the profit of another person towards whom he stand in Such Capacity.

Litigation Services




The National Company Law Appellate Tribunal (NCLAT) has held that pendency of proceedings under Section 138/441 of the Negotiable Instruments Act, 1881 cannot be considered as a dispute pending before a court of law, and hence, cannot be used as a reason for rejection of an application under Section 9 of the Insolvency and Bankruptcy Code.

“The pendency of the case under Section 138/441 of the Negotiable Instruments Act, 1881, even if accepted as recovery proceeding, it cannot be held to be a dispute pending before a court of law. Thereby we hold that the pendency of the case under Sec.138/441 of Negotiable Instruments Act, 1881 actually amounts to admission of debt and not an existence of dispute.” .

As such NCLAT admitted the application under sec.9 and issued the Order for moratorium.

No Arbitration, If the Agreement Does not Provide a Clause of Arbitration

It’s Not Arbitration If Jurisdiction Of The ‘Designated Officer’ Can’t Be Invoked By Both Parties To The Dispute…

““Arbitration has always been understood to mean the process by which a dispute is resolved by an arbitrator chosen or acceptable to both sides under an arbitration agreement between the two parties.”

Arbitration agreement should contain the Arbitration clause to invoke the jurisdiction and the matter to be refereed to arbitrator for adjudication of the disputes. any agreement should expressly include the clause of Arbitration in the case of disputes arises and that has to be resolved by invoking the Arbitration clause of the agreement.

If the agreement specifies a designated officer then it does not mean that the parties can invoke the jurisdiction of the Arbitrator. that any such officer or competent officer so designated are there only to resolve the issues between the parties. they cannot act as the Arbitrator for deciding the disputes between the parties as any such officer cannot be enjoined to act as Arbitrator judicially. thus if the agreement terms does not specify the Arbitration clause to be invoked in case of dispute then the question of appointment of arbitrator invoking such clause will not arise and it cannot be held as terms of agreement entered between the parties to decide the dispute. hence no jurisdiction arises to appoint any arbitrator.