Saturday, January 28, 2017

If builder defaults then consumer court can help execute sale deed

Updated: Jan 23, 2017, 11.57 AM IST

By Jehangir B Gail, consumer activist 

Executing an order is sometimes more difficult than winning the case. Here is a case where the Supreme Court has come to the rescue of an aggrieved consumer. 

Case Study: Kamlesh Aggarwal had filed a complaint before the Ghaziabad District Forum against Navchetna Sahkari Awas Samiti. Her grievance was about the Society having cancelled her membership and having failed to allot and register a plot at Khoda Village for alleged default in payment. By its order of October 17, 2003, the forum allowed her complaint and directed the Society to allot the plot and register it in her name within three months. 

On failure to comply with this order, Kamlesh initiated execution proceedings. At this stage, a third party named Gulab Singh claimed that the same plot was allotted to him and was in his possession pursuant to a civil suit filed by him. The district forum concluded that its original order in Kamlesh's favour was void and refused to execute it. It asked Kamlesh to approach the civil court to decide where she or Gulab Singh were entitled to the plot. Kamlesh then appealed to the Uttar Pradesh State Commission, which held that the forum had no power to review and change its own order. The forum was directed to continue with the execution proceedings. Neither Kamlesh nor the Society challenged this order, but Gulab Singh questioned its correctness before the National Commission, which dismissed his revision. 

During execution, the forum asked the Society to either put Kamlesh in possession of the plot originally allotted, or allot an alternative plot, or pay its current market value. When the Society failed to comply with these direc tions, the forum ordered the Society's office bearers to three months imprisonment and a fine of Rs 3,000. This order of conviction was set aside by the state commission as the forum had failed to adopt the procedure for summary trial prescribed under Criminal Procedure Code, but surprisingly no directions were given to conduct a fresh trial following the prescribed procedure. So Kamlesh was unable to execute the order passed in her favour. Aggrieved, she went to the National Commission which refused to consider the case on a technicality that there was no provision under the Consumer Protection Act for a second appeal against execution proceedings. 



Kamlesh finally approached the Supreme Court, contending that the matter had reached a deadlock. The apex court observed that the state commission was wrong in leaving Kamlesh without any remedy by setting aside the conviction due to procedural lapses without ordering a re trial.Despite this, since there was no provision of a second appeal under section 27 of the Consumer Protection Act, the National Commission had no power to entertain Kamlesh's appeal and had rightly rejected it. Even the Supreme Court did not have any power to entertain a petition under Article 136 of the Indian Constitution. 

However, considering that Kamlesh had been deprived of the benefit of the order passed in her favour, the Supreme Court invoked its powers under Article 142 of the Indian Constitution. By its order of February 10, 2015 delivered by Justice V Gopala Gowda for the Bench along with Justice R Banumathi, 

the Supreme Court refused to go into the merits of the case, but remanded it back to the district forum directing it to conduct execution proceedings as prescribed under the Code of Criminal Procedure. 

The Supreme Court also observed that a consumer could additionally take recourse to the provisions of Order XXI, Rule 32 of the Civil Procedure Code to enforce the order of getting the sale deed registered. Under this rule when a seller does not sign the sale deed, an officer appointed by the court is empowered to execute the document in favour of the decree-holder. 

Conclusion: This judgement widens the scope of the benefits to a consumer who can now get his sale deed executed through an officer empowered by the consumer court. 

(The author has won the Govt.of India's National Youth Award for Consumer Protection.) 



http://economictimes.indiatimes.com/wealth/real-estate/if-builder-defaults-then-consumer-court-can-help-execute-sale-deed/articleshow/56728918.cms

Thursday, January 19, 2017

Property dispute decided after five decades with 58 parties

One of the oldest property disputes which dragged three generations of a family to court has reached finality after nearly five decades, with a Delhi court asking the litigants to arrive at a mutual agreement on the partitioning of the three buildings. The litigation which was initiated in 1968 between five parties, including four family members and DDA, has ended up with 58 litigants. The suit was filed between four brothers, all residents of central Delhi, seeking partition of three properties of their father after his death. During pendency of the matter, the original parties had died and the case was pursued by their children, who were the legal heirs, many of whom also died, and grand children. Additional District Judge Kamini Lau held in the verdict that the suit properties can be partitioned and granted six months to the parties to arrive at a mutual settlement regarding partition of the premises in terms of their share declared in the preliminary decree passed in November 1975. "In case of a mutual settlement/agreement between the parties for partition, the settlement deed shall be filed before the court within six months which shall form part of the final decree," the court said. The court further said that in case the parties fail to arrive at a settlement, the valuation of suit properties, two in Karol Bagh and one in Gurgaon, be made on the basis of the existing notified circle rates of the area. It also granted liberty to the parties to purchase the share of each other by making payment of the share of the other person. The court said if the litigants are unable to partition the properties in the two modes suggested by it, they can file an application for execution of the order after which the buildings would be auctioned and the amount would be divided among them as per their shares.

http://www.moneycontrol.com/news/current-affairs/property-dispute-decided-after-five-decades58-parties_8269901.html

Wednesday, January 18, 2017

E-Registration: A major step towards transparency

Let's look at e-registration of land in terms of ownership, broker roles and its various benefits. Here are the details

The most frequent disagreement in Indian real estate is land dispute. Cases range from of illicit land grabbing and illegal land sales, to instances of purchase of land where no actual purchase has taken place. The real estate market has historically been plagued by such issues. The current government’s initiative of facilitating e-registration to streamline the registration of immovable properties, is an extremely progressive move. This has been universally welcomed for its transparency and ease of use.

E-registration has simplified the process for providing evidence of titles and facilitating transactions, and will go a long way in preventing the unlawful disposal of land. This system effectively brought to the forefront, the various underlying problems and loopholes in the traditional land registration process. The Land Registration Act of 1925 typically involves Powers of Attorney, sale or mortgage of land and transfer of property under rent. The Land Registration Act of 2002 introduced the new system using verified electronic signatures to transfer and register immovable property online.

Ownership

If a piece of land has been passed on for generations or has seen multiple owners over time, a proper hierarchy of land holding needs to be available, so that current buyers or tenants can ascertain the exact value of land or the rent according to current market values. This is possible only when there is complete transparency in document verification and full disclosure of details about the property – gross carpet area, number of rooms, foundation details and wiring blueprints. Nothing should be hidden from the future investor/buyer. E-registration has provided a much-needed level of transparency to property dealings.

 The role of a broker after e-registration

Does e-registration negate the need for a real estate broker? While all details of the property may be available online, it may not be enough information to make a firm investment decision. The question of whether a particular property makes good investment sense – regardless of how many details are available online – can only be answered by a knowledgeable consultant.

The fees a broker will charge are definitely reduced by e-registration, but a broker is still required – not only to provide inputs on the advisability of the investment, but to mediate between the involved parties and help negotiate the price.

Benefits of land e-registration

The usual resource challenges at registrar offices are reduced drastically, allowing them to tend to more sensitive matters like disputes.
Consumer pays a relatively affordable registration amount.
There is no need to visit multiple offices to register a property.
Details and documents pertaining to land records can be accessed online.
Transparency in the registration process increases significantly, thereby, rationalising broker fees and negating the need for bribes to officials.
There is a software to calculate the stamp duty on the basis of the stored data which can be paid online directly.

A state-of-the-art system will reveal the current market price of any land located anywhere within the state.

(The author is the CEO – Residential Services, JLL India)

https://housing.com/news/e-registration-a-major-step-towards-transparency-2/

प्रॉपर्टी सेक्टर को 'वाइट मनी' वाले ग्राहकों का इंतजार

नई दिल्ली
काले धन के लिए सुरक्षित स्थान कहे जाने वाले प्रॉपर्टी मार्केट में नोटबंदी के बाद से ही ग्राहकों का टोटा है। डिवेलपर्स के मुताबिक बीते तीन महीनों में ग्राहक करीब 50 पर्सेंट तक कम हो गए हैं। अब रीयलटी सेक्टर के लोगों की उम्मीद आने वाले दिनों में 'वाइट मनी' वाले निवेशकों पर ही टिकी हैं। घरों के बाजार में निवेश करने वाले लोग फिलहाल पैसा निकालने से बच रहे हैं। इन लोगों का मानना है कि आने वाले दिनों में ब्याज दरें और कम होंगी। इसके अलावा नोटबंदी के असर से प्रॉपर्टी मार्केट में भी कीमतें गिरेंगी।

इंडस्ट्री डेटा के मुताबिक काले धन को खपाने के लिए सबसे सुरक्षित माने जाने वाले रीसेल और सेकंडरी मार्केट में सबसे कम कस्टमर्स आ रहे हैं। यही नहीं प्रॉपर्टी के रजिस्ट्रेशन में भी तेज गिरावट आई है। प्रॉपर्टी कंसल्टेंट नाइट फ्रैंक इंडिया के मुताबिक, 'नोटबंदी के बाद से अब तक डिवेलपर्स को 22,600 करोड़ रुपये के नुकसान का अनुमान है। इसके अलावा राज्य सरकारों को स्टांप ड्यूटी के तौर पर 1,200 करोड़ रुपये के नुकसान का अनुमान है।'

चेन्नै, कोलकाता, हैदराबाद, पुणे और मुंबई से लेकर एनसीआर तक के तमाम डिवेलपर्स के टॉप अधिकारियों ने माना कि नोटबंदी के बाद मार्केट पर बड़ा असर पड़ा है। हालांकि डिवेलपर्स को लॉन्ग टर्म में फायदे की उम्मीद है और भविष्य में बैंकिंग चैनल के जरिए ही डील्स होंगी। हालांकि कई डिवेलपर्स और प्रॉपर्टी कंसल्टेंट्स ने कहा कि अभी यह कहना जल्दबाजी होगा कि ब्लैक मनी का पूरी तरह सफाया हो चुका है। हां, यह सही है कि अब कैश ट्रांजैक्शंस करना मुश्किल होगा।

डिवेलपर्स का मानना है कि नोटबंदी, बेनामी प्रॉपर्टीज ऐक्ट और नए रियल एस्टेट ऐक्ट के चलते भविष्य में इस सेक्टर में काले धन को नहीं खपाया जा सकेगा। इससे इंडस्ट्री की इमेज भी सुधरेगी। रीयल्टर्स की शीर्ष संस्था क्रेडाई के प्रेजिडेंट गीतांबर आनंद ने कहा, 'प्राइमरी और सेकंडरी, दोनों तरह के मार्केट में प्रॉपर्टी सेल कमजोर हुई है। नवंबर-दिसंबर में नोटबंदी के चलते लोगों ने खरीददारी का प्लान सिर्फ रीयल एस्टेट सेक्टर में ही नहीं, बल्कि सभी सेक्टर्स में टालने का फैसला लिया।'

Saturday, January 14, 2017

Rose Valley chit fund scam: Here’s all we know so far about the multi-crore chit fund scam

New Delhi, Jan 3: After the major financial scam caused by the collapse of a Ponzi scheme run by Saradha Group, it was the turn of Rose Valley chit fund scam in West Bengal. The Rose valley scam is similar to Saradha scam as it has many TMC links. Trinamool Congress MP and Tollywood actor Tapas Pal is one of brand ambassadors of the company who has been arrested by the CBI. The Rose Valley scam is seven times bigger than the similar, Rs 2,460-crore Saradha scam. The Rose Valley group was into real estate, films, media, jewellery, hotels and resorts and its firms operated unlicenced financial schemes that escaped regulators’ scrutiny. As per reports, the group allegedly robbed millions of investors in at least 10 states by promising exaggerated returns. These investors were majorly from from the low-income group.
What is the Rose Valley chit fund scam?
The Rose Valley chit fund scam could have raised nearly Rs 38,000 crore in West Bengal, Tripura, Jharkhand, Orissa, Assam and Bihar. As per reports by Enforcement Directorate, Rose Valley raised Rs 15,000 crore from depositors. Gautam Kundu, chairman of Rose Valley while responding to the allegations in 2015 said, “It is a free country. Anybody can say anything. We are in this business for the last 10 years. So we know what we are doing.” Kundu was arrested last year by the Enforcement Directorate (ED) in Kolkata. The Rose Valley Group was one of the sponsors of Indian Premier League franchise Kolkata Knight Riders. It was also the title sponsor of an international chess meet in Kolkata in 2012.
As per reports by Business Standard, the chit fund company had started its operation in 1997 in West Bengal and had acquired immovable properties of Rs 800-900 crore and movable properties of Rs 200 crore. It also stated that the company had flouted the guidelines of market regulator Securities and Exchange Board of India (SEBI), Reserve Bank of India (RBI) and Registrar of Companies (RoCs).
The central government through the Income Tax Department and Enforcement Directorate launched a multi-agency probe to investigate the Saradha scam and similar Ponzi schemes. As per reports, Rose Valley wrote a letter to West Bengal Chief Minister Mamata Banerjee after the Saradha scam broke out in 2013. In the letter, Rose Valley clarified that it had assets worth Rs 10,000 crore and was ready to pay off investors if they were asked to. Despite the assurances, Rose Valley’s offices at Tamluk in East Medinipur and Ranigunj in Bardhaman were vandalised by depositors and agents recently.
CBI files chargesheet against Rose Valley Group of Companies in 2016:
The Central Bureau of Investigation (CBI) in January 2016 filed its preliminary charge sheet against Rose Valley Group of Companies for duping investors of Rs 17,000 crore across country through various schemes. The 86 page charge sheet filed by CBI in the special CBI court in Bhubaneswar named Goutam Kundu, chairman of the group, Shibamoy Dutta, managing director and directors Ramlal Goswami and Ashok Saha after recording 131 witnesses.
These three have been booked under 120 (B) (criminal conspiracy) and 420 (cheating), sources said. Kundu was arrested last year in Kolkata. Shibamoy Dutta and Ashok Saha were arrested by the CBI earlier while Ramlal Goswami is still absconding.
The CBI issued summons to two Trinamool Congress MPs, Sudip Bandyopadhyay and Tapas Paul, in connection with the alleged Rose Valley scam on December 27, 2016 and both the leaders were asked to appear at the CBI office here on December 30.
TMC links with Rose Valley chit fund scam:
The Rose valley chit fund scam is similar to Saradha scam as it has many TMC links. Trinamool Congress Lok Sabha MP Sudip Bandyopadhyay and Actor-turned TMC MP Tapas Pal have been making headlines for their involvement in the scam. The Central Bureau of Investigation (CBI) today arrested Sudip Bandyopadhyay for his involvement in Rs 60,000 Cr Rose Valley group chit fund scam. Bandyopadhyay reached CBI at its office in Kolkata for questioning today. Before he went inside for questioning, he said, “I have come to clarify my position on whatever questions they have”.
Actor-turned MP Tapas Pal was arrested by the CBI on December 30 after being interrogated for four hours for his alleged links with ponzy scheme with the Rose Valley chit fund organisation. The Rose Valley scam is believed to be the biggest ponzi fraud in India as it encompasses a larger amount of money as compared to the Saradha case. Pal vehemently denied the allegations that he took financial advantage from the chit fund company and said that his party stands by him. “My party is with me.”. He also alleged that Union minister Babul Supriyo is involved in the multi-crore Rose Valley chit fund scam. “Babul Supriyo tricked me into the scam and he is involved in it,” Pal claimed.
Mamata Banerjee stands with accused party members:
West Bengal Chief Minister and Trinamool Congress chief Mamata Banerjee fumed over the arrest of Trinamool Congress Lok Sabha MP Sudip Bandyopadhyay and said, “If they (government) think that after the arrest Sudip Bandhopadhyay we won’t protest, they are wrong”. She further added saying that she will take the legal battle forward and will seek justice from the court.
Mamata condemned the political vindictive attitude of Narendra Modi and Amit Shah and said the arrests have been made for no reasons. Mamata said both, the Prime Minister and Amit Shah should be arrested. Mamata said she will protest over arrest of Bandhopadhyay tomorrow . In December, the West Bengal Chief Minister had accused the Centre of resorting to vendetta politics after Sudip Bandopadhyay was asked by the CBI to appear before it in connection with the Rose Valley chit fund scam.

http://www.india.com/news/india/rose-valley-scam-heres-all-we-know-so-far-about-the-multi-crore-chit-fund-scam-1738519/

Thursday, January 12, 2017

"नोट-बन्दी से प्रॉपर्टी नहीं होगी सस्ती"

वहम है कि नोट-बंदी से प्रॉपर्टी सस्ती हो जायेगी. प्रॉपर्टी में हूँ सालों से. कुछ नहीं होगा. लोग रेट कम कर ही नहीं रहे. कौन अपनी करोड़ों रुपये की जायदाद रातों-रात आधी कीमत पर बेचने को राज़ी होगा?


जिसकी कोई ज़बरदस्त ज़रूरत हो तो बेच भी जाए, लेकिन  ऐसे लोग तो पहले भी औने -पौने में बेच जाते थे. बावज़ूद उसके बगल वाली प्रॉपर्टी उससे सवाये रेट पर बिकती थी. बगल वाली क्या उसी  प्रॉपर्टी को खरीदने वाला सवाई ढेड़ गुणा कीमत पर बेच जाता था.


सो अभी लोग इंतज़ार करेंगे. कौन जाने अढाई साल बाद सरकार बदल जाए. नई पालिसी आ जाए. 

और खरीदने वाले को भी कैसे कुछ सस्ता मिलेगा? वो अगर एक करोड़ रुपये की प्रॉपर्टी को तीस लाख रुपये में दिखाता था तो आज उसे अगर वही प्रॉपर्टी सत्तर लाख रुपये में मिल भी जाए तो जो चालीस लाख रुपये वो पहले से ज़्यादा वाइट में दिखा रहा है उस पर टैक्स नहीं भरेगा क्या? 

कोई खास फर्क नहीं है खरीदने वाले को. वो पहले सारा धन बेचने वाले को देता था, अब अगर बेचने वाले को थोड़ा कम दिया भी तो जितना कम देगा, उससे कहीं ज़्यादा सरकार को टैक्स देना होगा.

सो नतीजा निल-बटा-सन्नाटा.

Wednesday, January 11, 2017

During July-December 2016, residential sales across top 8 cities dip 23%: Knight Frank - The Economic Times

MUMBAI: Residential property sales in Mumbai Metropolitan Region have declined 26% during the second half of 2016 as the demonetisation disrupted the market sentiment in fourth quarter of the year, said a Knight Frank report. New residential launches during the period also slipped 53% from a year ago.

In the quarter ending December, sales plunged by 50% to 8,617 units and launches by 77% to 2,617 units. New launches and sales in the premium segment declined 69% and 16% from a year ago, respectively during the second half of 2016.

Premium markets of South Mumbai and Central Mumbai were the worst hit with sales declining 54% and 41% respectively between July-December. Thane and Peripheral Central Suburbs at 37% and 28% decline were relatively better off, the report said.

Unsold inventory levels have come down steadily from a peak of 213,742 units in first half of 2014 to 154,699 units in the second half of 2016.

"H1 (January-June 2016) raised hopes for the MMR residential market and we predicted H2 2016 on a growth trajectory. But, H2 2016 suffered a setback with launches and sales down by 53% and 26% YOY respectively," said Samantak Das, Chief Economist & National Director - Research, Knight Frank India. "The major reason of this fall can attributed to the demonetisation move. In fact, the last quarter (Q4 2016) witnessed a steep 39% decline in sales YOY resulting in the MMR residential sales in 2016 being at its worst in the last seven years. We believe that uncertainties will prevail till the next quarter."

Mumbai's office market witnessed a decline in both new completion and transactions during the second half of 2016. New completion at 1 million sq ft was lower by 73%, while transactions dipped by 34% to 3.3 million sq ft.

Shrinking new completions and lower vacancy level have pushed up office rents with Bandra-Kurla Complex and Central Mumbai moving up 6% in the second half of 2016.


"The office market saw a marginal slide of 6% YOY in transaction in 2016 and this has brought a pause on the growth momentum of last three years. The major reason for this slowdown in transaction may be attributed to the limited supply in the region. Vacancy at the city level is on a decline and sought after business districts like BKC and Lower Parel experience a vacancy of sub 5%. Because of steady demand and limited supply, rentals have jumped by 16% YOY during H2 2016," Das added.

Delhi's circle rate: SC issues notice to Delhi government on Central Government's appeal - The Economic Times

The Supreme Court on Monday issued notice to the Delhi government on the plea of the central government in connection with the circle rate issue in the national capital.

The Central government has challenged the Delhi High Court order on circle rate issue in the apex court.

The Delhi High Court had in August 2015, refused to stay a Delhi government's notification that tripled circle rates of agricultural land in the national capital.

Refusing to pass an interim order to stay the notification, saying it would hear the Delhi government's stand before passing any order, the court had asked the Delhi government to file its response by September 23, 2015 and also apprise it whether the notification could be issued without the Lieutenant Governor'sapproval.

The Delhi government had on August 2016 issued a notification in which circle rates of agricultural lands were revised. The Aam Aadmi Party (AAP) government has fixed the new rates in the range of Rs 1 crore to Rs 3.5 crore per acre from the earlier Rs 53 lakh per acre.

However, the former Lieutenant Governor Najeeb Jung stayed the notification followed by a resolution passed by the Delhi government against the Lieutenant Governor's stay.

In a latest development, the Delhi government has in January this year formed a committee to rationalise and review discrepancies in circle rates, keeping fall in property rate post demonetisation in view.

Smart things to know about benami property transactions - The Economic Times

1. A benami transaction is one where a property is held by one person and the amount for it is paid by another. The transaction is done to benefit the person who pays for the property either directly or indirectly.

2. The Prohibition of Benami Property Transactions Act, 1988, is an amendment of the older Benami Transactions (Prohibition) Act, 1988, and has come into force from 1 November 2016.

3. It prohibits illegal benami transactions, and provides imprisonment up to seven years and fine for violation of the Act which may extend to 25% of the fair market value of the benami property.

4. The new law provides for authorities to conduct inquiries on any benami transactions. These are, the Initiating Officer, Approving Authority, Administrator, and Adjudicating Authority.

5. Under the new law, an Appellate Tribunal will hear appeals against orders passed by the Adjudicating Authority. Appeals against orders of the Tribunal, in turn, will be heard by the High Court.

(The content on this page is courtesy Centre for Investment Education and Learning (CIEL). Contributions by Girija Gadre, Arti Bhargava and Labdhi Mehta.

Property cards issued by South Delhi Municipal Corporation - The Economic Times

NEW DELHI: South corporation on Wednesday started distribution of Unique Property Identification Code (UPIC) cards along with inaugurating the "Link your Record" programme for residents in its jurisdiction.

The taxpayers will now directly have access to their digitised records and will be able to upload their documents, which will be vetted by the civic body. UPIC cards have a QR Code, which on being scanned will directly links the user's property record files.

The civic body had run a 15-day pilot before inaugurating the scheme, which it claims will benefit four lakh people.

South corporation mayor Shyam Sharma said that there are around 16 lakh properties under SDMC from whom tax needs to be collected. "To ensure collection from all property holders and identify the name and details of those who are not depositing tax, it is essential to have a separate unique UPIC Number," he added.

8 IMPORTANT JUDGMENTS REGARDING EARNEST MONEY

1. In “Sarla Devi vs Budhan” on 28 April, 2011 R.S.A.No. 130/2007 & CM No. 9195/2006, the Hon’ble High Court of Delhi observed, “the Plaintiff had entered into an agreement to sell with the defendant; this was qua 45 sq. yards of property comprising of one room with latrine, bathroom measuring 16 ft. X 25 ft situate in Khasra No. 15 of Village Mandoli; total consideration agreed was Rs. 1,60,000/-; plaintiff had paid the sum of Rs. 50,000/- as an advance/earnest money. In terms of the aforestated agreement, the balance amount of Rs. 1, 10,000/- had to be paid by 25.08.2000, on which date the defendant was required to execute the documents of transfer in favour of the plaintiff before the Sub- Registrar. The plaintiff reached the office of the Sub-Registrar on 25.08.2000 for getting the documents of transfer executed but the defendant did not came there till 1 pm.”

Then the Honorable Court held, “It is also relevant to state that the statement of the defendant had been recorded on 24.10.2002 under Order X of the Code of Civil Procedure. In this statement, she had denied the execution of the agreement to sell Ex. PW-1/1; however in her deposition on oath in Court she had admitted this document. On the preponderance of probabilities and after a detailed examination of evidence both oral and documentary the court had held that Ex.PW-1/1 had been executed by the defendant; the plaintiff was entitled to refund of the earnest money i.e. double the amount of `50,000/- which amount of 1 lac was rightly granted in his favour.”

2. In “Shri Virender Aran vs Shri Devinder Singh” on 10 December, 2013 RFA(OS) 113/2013, CM APPL.13749/2013, the Hon’ble High Court of Delhi observed,  “if the first party refuses to sell the said property within stipulated period as mentioned above then the first party shall be liable to pay the earnest money as double to the second party, in case if the second party refuses to purchase the said property within same time then her/his earnest money shall be forfeited by the first party and after it the first party shall have full right to resell the said property to any person at any rate.”

Then the Honorable Court held “This Court is of the opinion that for rescinding the contract, only invocation of Clause 5 and due communication of the same was required; which was duly done, hence the agreement stood rescinded on 24.05.2011. Consequently, twice the amount of the earnest money i.e. Rs.6,00,000/- was payable to the purchaser. The seller had got the demand draft of Rs.3,00,000/- prepared on 3rd June, 2011. Although the time frame for refund was not mentioned in the agreement, he has nevertheless shown his readiness and willingness to repay the money. The offer to repay Rs.6,00,000/- along with 18% interest thereon is, in the opinion of this Court, fair and adequate. In view of the preceding discussion, the impugned order is set aside, the appellant is directed to pay Rs.6,00,000/- with interest thereon at the rate of 18% per annum from 24.5.2011 and costs of Rs.1,00,000/- to the respondent within 4 weeks from today.”

3. In “Birbal vs Dharam Pal And Others” on 6 May, 2014, RSA No.4056 of 2009 (O&M) the Hon’ble Punjab-Haryana High Court observed, "The plaintiff filed a suit for possession to effect that on 24.1.1991, defendant No.1 entered into an agreement to sell suit land measuring 8 bigha 4 biswas bearing khasra No.159/1(1-14),159/3(6-10) khatoni No.476 khewat No.166/136 min vide sjamabandi 1991-92 situated at village Tiwala, for a consideration of Rs.1,95,000/- and for delivering the possession of land and getting the registry in favour of the plaintiff and setting aside the judgment  and decree of exchange dated 16.1.1993 vide which exchanged property by defendant No.1 with defendants No.2 and 3 is illegal and against the facts and not binding upon the rights of plaintiff because it is mere paper proceedings just to defeat the right of the plaintiff and defendant No.2 and 3 have no concerned with the suit land."

Then the Honorable Court held, “The suit was dismissed with costs by the trial Court vide impugned judgment and decree dated 11.06.2003. However, appeal was accepted by the First Appellate Court vide impugned judgment and decree dated 31.3.2009 to the extent that respondent No.1 was directed to return the double amount of earnest money i.e. ` 50,000/- within a period of two months from the date of order.”

“Moreover, keeping in view the facts and circumstances of the case, appellant has been granted the relief of recovery of double the amount of earnest money and in view thereof, this Court is not inclined to interfere in the impugned judgment and decree of the First Appellate Court. Thus, this appeal is Dismissed.”

4. In “Jai Pal Singh vs Gurinder Pal Singh” on 23 January, 2015, RSA No.1233 of 2014(O&M) the Hon’ble Punjab-Haryana High Court observed, “the Defendant is in second appeal aggrieved against the concurrent findings returned by the Courts below whereby the suit filed by the respondent/plaintiff for recovery of double the amount of earnest money in light of agreement to sell dated 24.09.2005 was decreed by the learned Civil Judge (Sr. Divn.), Ambala vide judgment and decree dated 23.07.2012 and the findings thereof were affirmed by the learned District Judge, Ambala vide judgment and decree dated 18.09.2013.”

Then the Honorable Court held, “The sole point that arises for determination before this Court is that whether the respondent/plaintiff was entitled to recover Rs.2 lacs i.e. double the amount of earnest money from the appellant as per the stipulation contained in agreement to sell (Ex.P-1). 3. In view of the settled principles of law that the Civil Court is required to adjudicate the matter on the basis of preponderance of evidence led by the parties, this Court is of the opinion that both the Courts below have rightly decreed the suit of the plaintiff/respondent and no interference is warranted in the well reasoned judgment and decrees passed by the Courts below. In view of the above, finding no question of law much less substantial question of law arising for determination in the present second appeal, the same is hereby dismissed.”              

5. In “Dadarao And Anr vs Ramrao And Ors” on 2 November, 1999, CASE NO.: Appeal (civil) 176 of 1982, the Hon’ble Supreme Court of India observed, "Tukaram Devsarkar aged about 65, Agriculturist R/o Devsar, purchaser (GHENAR)- Balwantrao Ganpatrao Pande aged 76 years r/ o Dijadi Post Devsar, Vendor (DENAR), who hereby give in writing that a paddy field situated at Dighadi Mouja, Survey No. 7/2 admeasuring 3 acres belonging to me hereby agree to sell to you for Rs.2,000 and agree to receive Rs. 1,000 from you in presence of V.D.N. Sane. A sale deed shall be made by me at my cost by 15-4-1972. In case the sale deed is not made to you or if you refuse to accept, in addition of earnest money an amount of Rs. 500 shall be given or taken and no sale deed will be executed. The possession of the property has been agreed to be delivered at the time of purchase. This agreement is binding on the legal heirs and successors and assigns.”

Then the Honorable Court held, "While disposing of the suit, the trial court had directed the defendants to pay back Rs. 1,000 plus interest at the rate of 6 per cent per annum from the date of the suit till realisation. In addition thereto, the Civil Judge had required the defendants to pay Rs. 500 as damages to the plaintiff. Keeping this in view, while allowing this appeal, we affirm the decree of the trial court with this modification that the sum of Rs. 500 will also carry an interest of 6 per cent per annum with effect from 8th July, 1977, being the date of the decree by the trial court. This will be in addition to a decree for Rs. 1,000 plus interest at the rate of 6 per cent thereon from the date of the filing of the suit till the date of realisation.”

6. In “
Satish Batra vs Sudhir Rawal” on 18 October, 2012, CIVIL APPEAL NO. 7588 OF 2012, the Hon’ble Supreme Court India held, "Law is, therefore, clear that to justify the forfeiture of advance money being part of ‘earnest money’ the terms of the contract should be clear and explicit. Earnest money is paid or given at the time when the contract is entered into and, as a pledge for its due performance by the depositor to be forfeited in case of non-performance, by the depositor. There can be converse situation also that if the seller fails to perform the contract the purchaser can also get the double the amount, if it is so stipulated. It is also the law that part payment of purchase price cannot be forfeited unless it is a guarantee for the due performance of the contract. In other words, if the payment is made only towards part payment of consideration and not intended as earnest money then the forfeiture clause will not apply."

7. In “Sh. Dharam Singh vs Smt. Manju Bansal” on 29 May, 2015, Suit No.214/2015, the Honorable ADDL. DISTRICT JUDGE (CENTRAL¬07), TIS HAZARI COURTS : DELHI held, “A decree of specific performance of agreement to sell dated 12.04.2013 in respect of the suit property is passed in favour of the plaintiff and against the defendant and defendant is directed to execute the sale deed in respect of the suit property in favour of the plaintiff after getting balance sale consideration of Rs.9.5 lacs and get the sale deed registered before the concerned Sub-Registrar, Delhi. If defendant failed to execute the sale deed in respect of the suit property in favour of the plaintiff, the plaintiff is entitled to get it executed and registered through the court.”


8. In “Zarina Siddiqui versus A. Ramalingam alias R. Amarnathan”, CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 9947 OF 2014 (Arising out of Special Leave Petition (C) No. 19555 of 2012), THE HONORABLE SUPREME COURT OF INDIA ordered the owner of the suit property to execute the sale deed in favour of the person who gave the earnest money to the same.

Supreme Court raises serious questions about collusion between Noida authorities and builders - Times of India

NEW DELHI: The Supreme Court on Monday agreed to examine real estate major Supertech Ltd's plea against the Allahabad high court's order directing demolition of two 40-floor towers in Noida and ordered the company not to sell or transfer flats in the buildings.
A bench headed by Chief Justice RM Lodha issued notice on a batch of petitions filed by Supertech, Noida, flat owners of the controversial buildings and the petitioner on whose plea the high court had passed the order. It also expressed surprise on how Noida (New Okhla Industrial Development Authority) had permitted the construction of 40-floor buildings and said that if they are to be demolished then the authority will have to face the consequences.


If the towers are demolished then money must be paid to flat owners by the authority as it colluded and participated in giving sanction for them, the court said. The bench also raised questions on how the floors was raised from 24th to 40th floor during the construction.
The bench was hearing pleas in which the petitioners had submitted that the high court order to demolish the towers — Apex and Ceyane — be immediately stayed. The high court had ordered demolition of Supertech's two under-construction towers in the real estate firm's Emerald Court project.
The two towers have 857 apartments in total. Of these, about 600 flats have already been sold. In its petition, the firm has claimed that the two towers were being constructed as per "approved building plans" and "there is no violation".
On April 11, the Allahabad high court had ordered demolition of the two towers and directed the company to refund money to the home buyers. The HC order came on a petition of the Emerald Court Owner Resident Welfare Association, which had alleged that the approval and construction of the two towers was "in complete violation of the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act".
The association has also claimed the authority had given permission to raise the height of the two towers, which was earlier supposed to have only 24 floors each, "without maintaining the mandatory distance of 16 metres from an adjoining building block," making it "unsafe, apart from blocking air and light".

Avoid Fraudulent High Yield Investment Programs | HSBC India

HSBC received alerts from cautious customers about some fraudulent approaches from individuals stating that they should invest in PPP (Private Placement Programs) schemes whereby an exceptional amount of returns are guaranteed within an extremely short tenure. This is in the form of High Yielding Investment Programmes / Financial Instruments, examples of which are as under

The Scheme talks about offering 300% returns to HSBC Bank customers over a short period of time through pledging of Fixed Deposit (FDs). The amount will be utilized in high return instruments by the operator. The FDs should be above INR 50 Crores.
Funds in excess of INR 50 Crores needs to be transferred to the mentioned account, This will be pledged against, SBLC issued favoring other customers. This scheme assures high returns to investors.

Instructions for Customers

Kindly record details of individuals, companies & any available documentation of a suspect proposal pertaining to PPP schemes wherein you have been approached for investments in these schemes / routing of such funds through HSBC accounts.
Since such schemes are fraud prone do not invest in such schemes and contact your Relationship Managers / HSBC branch staff for guidance immediately.

Home loan:bank of baroda offers cheapest home loan - Navbharat Times

मुंबई

सस्ते लोन की रेस में बैंक ऑफ बड़ौदा पब्लिक सेक्टर के सबसे बड़े बैंक एसबीआई और सभी प्राइवेट बैंकों से आगे निकल गया है। बैंक 8.35 प्रतिशत पर होम लोन दे रहा है, जो इंडस्ट्री में सबसे कम रेट है। दूसरे बैंक अपने पुराने ग्राहकों को रेट में आई कमी का फायदा नहीं दे रहे हैं। बैंक ऑफ बड़ौदा सस्ते रेट से उन्हें लुभाने की कोशिश कर रहा है। बैंक ने पुराने ग्राहकों के लिए बेस रेट वाले लोन को मार्जिनल कॉस्ट लेंडिंग रेट में शिफ्ट करने के लिए स्विचिंग फी भी माफ कर दी है।

अभी होम लोन ग्राहकों को बेस रेट से एमसीएलआर में शिफ्ट होने के लिए 5,000 से 10,000 रुपये की फी देनी पड़ रही है। दूसरे बैंकों और हाउजिंग फाइनैंस कंपनियों के ग्राहक अपना लोन बैंक ऑफ बड़ौदा में बिना किसी चार्ज के शिफ्ट कर सकते हैं।

बैंक ने एक स्टेटमेंट में बताया, ‘एमसीएलआर में 0.55-0.75 प्रतिशत की कटौती के बाद बैंक ने होम लोन की ब्याज दरों को इस साल 7 जनवरी से 0.70 प्रतिशत कम किया है।’ बैंक सबसे कम रेट पर होम लोन दे रहा है। बैंक ऑफ बड़ौदा ने हाल ही में एक साल का एमसीएलआर रेट घटाकर 8.35 प्रतिशत किया था, जो पहले 9.05 प्रतिशत था।



अगर आपने 50 लाख रुपये का होम लोन लिया है तो आप बैंक ऑफ बड़ौदा के 0.70 प्रतिशत रेट कट से हर महीने की किस्त में 2,496 रुपये की कमी आएगी। वहीं, 30 साल तक की लोन की पूरी अवधि में आप 9 लाख रुपये बचा पाएंगे। बैंक 8.85 प्रतिशत पर कार लोन दे रहा है, वहीं लोन अगेंस्ट प्रॉपर्टी पर उसका रेट 10.35 प्रतिशत है।

उधर, एसबीआई होम लोन लेने वाली महिलाओं को 75 लाख के कर्ज पर 8.65 प्रतिशत का रेट ऑफर कर रहा है। एचडीएफसी, आईसीआईसीआई और इंडियाबुल्स महिलाओं को 8.65 प्रतिशत और अन्य बॉरोअर्स को 8.7 प्रतिशत पर 75 लाख रुपये तक का होम लोन दे रहे हैं।

Modi govt wants to snatch 16k properties of Muslims by playing fraud on Constitution | The Siasat Daily

There has been law since independence regarding the properties left behind by the migrants to Pakistan. First the law was passed as the Administration of Evacuee Property Act, 1950 after the war against Pakistan. Another law was passed in continuation of the provision of the Administration of Evacuee Property Act that was named as Enemy Property Act later.



Those persons who had migrated to Pakistan and left properties in India were made subject to the provision of the Evacuee Property Act and their properties were taken over by the government of India. A large number of disputes gave way to a prolonged litigation and meanwhile Enemy Property Act into being.

The properties left by migrants leaving other members of the family were snatched from the surviving members and their progeny.

This phase of litigation made suffer a large number of Indian citizens.After the subsequent enactment the sufferings were multiplied and till now litigations are in the courts.For example the properties of Nawab of Bhopal presently under Pataudi family are still subject to litigation pending in Jabalpur High Court.

The glaring case among the 16000 such properties mostly belong to Muslims is the case of MAM Khan , the Raja Mehmoodabad having 936 properties in Lucknow, Sitapur and Lakhimpur.



It’s surprising that even after the final pronouncement by the Supreme Court of India the above noted properties are duly owned by Raja Mohammed Amir Mohammad Khan, as legal successor of Raja Mehmoodabad. In its remarkable judgment Union of India v Raja MAM Khan the Supreme Court on October 21, 2005, held that on the death of an enemy, the property devolves in succession and ceases to be enemy property if the successor is a citizen of India.

But the central government is adamant to deny him property rights by enacting a law debarring the actual owners of 16000 properties including the properties of Raja Mahmudabad and Nawab of Bhopal.

The enactment to the effect to take over the above noted properties has been passed by the Lok Sabha but due to strong opposition by members of opposition like D Raja, Sitaram Yechuri,Sharad Yadav KC.Tyagi etc the bill could not be passed by Rajya Sabha even after tabling it five times in the House last time on 23rd Dec 2016.

Its very relevant to mention here that the honorable President of India has raised strong objection while signing the Enemy Property (Amendment and Validation) Ordinance for the fifth time when the Ordinance was put before him for the record fifth time in a row.

It’s also to be noted that recently the Apex court has painfully said that repetition on of any Ordinance even twice on the subject is a fraud on the Constitution of India.

In worst case if the Ordinance becomes an Act could you imagine Mohammad Amir Mohammad Khan of Mahmudabad, a former lawmaker who preferred to live in India when his father emigrated to Pakistan in 1957 , the former captain Indian cricket team, late Mansur Ali Khan Pataudi, his wife Sharmila Tagore and their children Saif, Saba and Soha Ali Khan will be considered the ‘enemies’ India. Aren’t the patriot Indian Muslims being treated like traitors by the present Modi government?

Courtesy: Muslim Mirror

http://www.siasat.com/news/epo-2016-modi-govt-wants-snatch-16k-properties-muslims-playing-fraud-constitution-1104833/

After 76 long years, family gets its property back - Times of India

Three members of a family have been given back over three acres of land in Byrasandra that they had acquired from the family patriarch back in 1941. Legal dispute over acquisition of the land went on all these years. The family members claimed that they were never paid compensation for the land originally notified by the then Government of Mysore to build a central prison. The prison was never built and though the authorities claim that the award/compensation had been paid, they were unable to produce documents "as they were unavailable".
The High Court of Karnataka judgment came in favour of Venkatamma, Chandrasekhar and Rathna, the wife and children of Venkatesh. Three acres, 32 guntas of land belonging to Venkatesh's father Appaiah was part of 131 acres of land the government had acquired in 1941. Both Appaiah and Venkatesh are dead now.
They contended before the HC that 131 acres of land was acquired in 1941 for constructing a central jail. The jail was not built and different portions of the land were allotted to different departments of the government. So far as their lands were concerned, "neither award was passed, nor compensation paid". The government had transferred 25 acres of land to the Fire Service Department in 1967, but their land was not part of what was now in the department's possession.

Sunday, January 8, 2017

home buyers:demonetization effect: home buyers expect the fall in prices, this will have a negative impact on property sales - Navbharat Times

सैकत दास, मुंबई

हाउजिंग फाइनैंस कंपनियों ने रेग्युलेटर नैशनल हाउजिंग बैंक (NHB) के साथ हुई मीटिंग में पिछले महीने की शुरुआत में घोषित किए गए डीमॉनेटाइजेशन के चलते रियल एस्टेट सेक्टर में दबाव को कम करके बताया। लेकिन, उन्हें डर है कि कन्ज्यूमर सेंटीमेंट कीमतों में गिरावट की उम्मीद कर रहा है, जो आने वाले महीनों में होम सेल्स पर असर डालने के साथ ग्रोथ को कमजोर कर सकता है। घटनाक्रम की जानकारी रखने वाले कई सूत्रों ने यह बात इकनॉमिक टाइम्स को बताई है।

डीमॉनेटाइजेशन के असर का आकलन करने के लिए पिछले दो हफ्तों में NHB ने दिल्ली, मुंबई और चेन्नै में 81 हाउजिंग फाइनैंस कंपनियों के साथ तीन मीटिंग्स की है। नेशनल हाउजिंग बैंक के सीईओ श्रीराम कल्याणरमन ने इकनॉमिक टाइम्स को बताया, ‘डीमॉनेटाइजेशन के बीच स्थिति का आकलन करने के लिए हमने हाउजिंग फाइनैंस कंपनियों की रीजनल लेवल कॉन्फ्रेंस की है।’ उन्होंने बताया, ‘हमने इस सेक्टर में चुनौतियों, अवसरों के बारे में और हाउजिंग फाइनैंस कंपनियां (HFC) कैसे 2022 तक सभी लोगों के लिए घर के लक्ष्य को पूरा करने की दिशा में काम कर सकती हैं, इस पर विचार-विमर्श किया गया है।’

कल्याणरमन ने चुनौतियों के बारे में विस्तार से नहीं बताया, लेकिन मीटिंग में हिस्सा लेने वाले कुछ लोगों ने बताया कि उन्होंने रेग्युलेटर का ध्यान कीमतें घटने को लेकर कन्ज्यूमर की बढ़ती उम्मीदों की ओर खींचा। एक बड़ी HFC के हेड ने बताया कि रेंटल यील्ड और मॉर्गेज लोन यील्ड में करीब 3.4 फीसदी (टैक्स अडजेस्टेड) की गिरावट आई है, जो अभी किराये के घरों में रहने वाले लोगों की तरफ से हाउजिंग डिमांड को बढ़ाने में अहम भूमिका निभा सकता है।


कई कन्ज्यूमर्स ने फिलहाल घर खरीदने के अपने फैसले को रोक रखा है, क्योंकि वह कीमतों में गिरावट की उम्मीद कर रहे हैं। उनका कहना है कि इसका असर होम लोन डिमांड पर पड़ सकता है, ऐसी कयासबाजी खत्म करने के लिए उन्होंने NHB के दखल की मांग की है। रेग्युलेटर का मानना है कि घरों की कीमतों में थोड़ा शॉर्ट टर्म करेक्शंस (10-15%) देखने को मिल सकता है, लेकिन असल टैक्सपेयर्स के ट्रांसपैरेंट डील्स के लिए आने पर घरों की कीमतों में तेजी देखने को मिलेगी।

Benami Properties Act:property sales dip due to fear of note ban and benami properties act - Navbharat Times

कैलाश बाबर/सोबिया खान, मुंबई/बेंगलुरु

बीते साल 8 नवंबर को नोटबंदी के ऐलान बाद से तमाम अहम मार्केट्स में रियल एस्टेट सेल्स ठहर सी गई है। कुछ बाजारों में इसमें तकरीबन 20 फीसदी तक की गिरावट हुई है। नोटबंदी और बेनामी प्रॉपर्टीज ऐक्ट की कार्रवाई के डर, दोनों वजहों से निवेशक रियल्टी में पैसा लगाने से बच रहे हैं, जबकि एंड यूजर्स को नोटबंदी के बाद ब्याज दरों में कटौती और प्राइस करेक्शन का डर है।

बेनामी संपत्तियों पर सख्त कार्रवाई की संभावना है। हालांकि, अधिकारी आय से ज्यादा संपत्ति के संबंध में मालिकाना हक स्थापित करने के लिए इनकम के स्तर का मिलान करेंगे। प्रॉपर्टी ब्रोकर्स का कहना है कि घर के खरीदारों को केंद्रीय बजट का इंतजार है और उन्हें हाउसिंग लोन रेट में कटौती के अलावा टैक्स बेनेफिट्स का भी इंतजार है।

लाइसेज फोराज रियल एस्टेट रेटिंग एंड रिसर्च के एमडी पंकज कपूर ने बताया, 'दिसंबर को खत्म क्वॉर्टर के दौरान राजस्थान, मध्य प्रदेश, गुजरात और कोलकाता समेत नॉर्थ इंडिया के टियर-1 और टियर-2 शहरों के मार्केट्स में प्रॉपर्टी की सेल्स में 15-20 फीसदी की गिरावट का अनुमान है। खास तौर पर नोटबंदी के 50 दिनों में यह आंकड़ा शायदा 30 फीसदी तक पहुंच जाए। पश्चिम और दक्षिण भारत के शहरों में असर अपेक्षाकृत कम था। 8 नवंबर 2016 के बाद से मार्केट में कोई गतिविधि नहीं दिखी और फिलहाल मार्केट अब फिर से चीजें तय करने के मूड में है।'


कपूर को ब्याज दरों मे कटौती और प्रॉपर्टी की कीमतों में वास्तविक गिरावट तक मार्केट में सुस्ती जारी रहने का अनुमान है। इसमें कुछ महीनों का वक्त लग सकता है। सरकार ने हाल में बेनामी सौदे (पाबंदी) संशोधन कानून, 1988 को मंजूरी दी है। इस कानून का उल्लंघन करने पर 7 साल की सजा होगी और प्रॉपर्टी के मालिक को कोई सजा दिए बिना संपत्ति को जब्त करने की भी बात है। इस कानून के दायरे में अचल, चल, तमाम तरह की संपत्तियां शामिल हैं। संशोधित कानून में टैक्स चोरी के मकसद और आय से ज्ञात साधनों से इतर इनकम के जरिये फर्जी नाम पर खरीदी गई मौजूद संपत्तियों को जब्त करने के लिए सरकार को अधिकार दिया गया है।

पीडब्ल्यूटीसी में टैक्स एंड रेगुलेटरी सर्विसेज, पार्टनर अभिषेक गोयनका ने बताया, 'यह एक मुश्किल काम हो सकता है, लेकिन अधिकारी प्रॉपर्टी खरीदारों के इनकम का पता कर सकती है और खरीदारी के वक्त प्रॉपर्टी की वैल्यू से इस इनकम का मिलान कर सकती है। इससे लोअर इनकम और इसके अनुपात से अधिक संपत्तियों की खरीद के मामलों को पकड़ा जा सकता है। इसके बाद लोगों को नोटिस भेजे जा सकते हैं और अगर जवाब संतोषजनक नहीं है, उनसे आगे भी पूछताछ होनी चाहिए।'

Saturday, January 7, 2017

Business Law: Is Maintenance and Champarty illegal in India?

‘Maintenance’ may be defined as an agreement whereby a stranger promises to help another person by money or otherwise in litigation in which that -third person has himself no legal interest. ‘Champerty’ is an agreement whereby a person agrees to assist another in litigation in exchange promise to hand over a portion of the proceeds of the action. Thus, in both cases financial or professional assistance is provided with a view to assisting another person in litigation but in case of champerty the party helping in litigation also shares in the gains of the litigation in addition to interest on money advanced or fees for professional services.

Under the English Law such agreements are absolutely void.’ The Indian Law, however, does not make them absolutely void because of the peculiar position of Indian litigants many of whom are too poor to afford expensive litigation. “The uncertainties of litigation are proverbial; and if the financier must need risk losing his money he may well be allowed some chances of exceptional advantage” (Ram Sarup vs Court of Wards).

The rules applied in India are as follows: - -

I. An agreement for supplying funds by way of ‘maintenance for ‘Champerty’ is valid unless:

(a) it is unreasonable so as to be unjust to the other party, or

(b) It is made by a malicious motive like that of gambling in litigation or oppressing other party by encouraging unrighteous suits, and not with the -bona fide object of assisting a claim believed to be just (Bhagwat Dayal -Singh vs Debi D “I Sahu ).

II. An agreement for providing professional services is valid if it is made by way of maintenance’ and with a bona fide object of assisting a claim believed to be-just and obtaining a reasonable recompense therefore. But if it is made by way of ‘Champerty’, i.e., making the remuneration dependent to any extent whatsoever upon the result of the suit, it is void (Ko/hi Jairam vs Vishvanat).

Illustrations

(a) Where 75 paise in a rupee was agreed as the share of the financier, out of the prop recovered, It was held that the agreement was unreasonable and hence void. However, the plaintiff (financier) was awarded the expenses legitimately incurred by him with interest (Nuthaki Venkataswami vs Katta Nagi Reddy).

(c) An agreement by a client to pay his lawyer according to the result of the case was held opposed to public policy and void, it being against the professional code of conduct (Kothi Jairam vs Vishvanath).

The Legal Disservice: Top 6 reforms in legal services sector that India (n)ever had, (n)ever will in 2016! | Krishnayan Sen | Pulse | LinkedIn

Amongst the professional services, the law of inertia has perhaps had its most lasting impression on legal services. The legal services sector – the term itself has its fair share of protestors who prefer the more nobler expression ‘profession’ than ‘legal services’ – has been the most resistant to any kind of change, let alone welcoming reforms. The three main players in the sector are the lawmakers, practitioners (lawyers, judges, law firms and law associations/ bodies) and the consumers or end-users. There is, apparently, also the influence of the invisible hand of foreign law firms, but - if the liberalisation process (or the lack of it) is any indicator - I am not sure how much influence they have actually had in the process so far. As we usher in 2016 with renewed optimism on the Indian economy and its effect globally, I wonder how a vibrant economy can surge ahead without an equally enabling or progressive legal machinery. Legal services are at the very heart of that legal machinery; and unless we address, debate and ultimately bring in reforms in this sector – it would only serve as a snag, instead of a facilitator, to India’s economic resurgence. I set out below my list, not in any particular order, of the best reforms in the legal services sector that India never had and, perhaps, never will in the near future (for reasons that remain best unknown).

Make lawyers accountable, please! : There is absolutely no accountability of lawyers or law firms in India. Any professional services firm, including a law firm, should be accountable for the advice that it renders to its clients – as is the norm in all developed jurisdictions. However, in India, there is no quality control whatsoever on the products or services that is routinely doled out by firms or lawyers. Engagement letters ordinarily have a clause that the law firm will not be liable for any advice unless there is gross professional negligence or fraud. And even in such cases, the extent of liability is contractually capped at the professional fees charged by the firm. Needless to add, this clause is rarely, if at all, pressed into service. I find no reason why lawyers need to be treated as a privileged class of professionals who enjoy near immunity from the advice that they render to their clients. At present, there is neither any discussion nor debate on the need to draw up acceptable standards of service or extend the principles of product liability to legal services as well. It is one thing to say that legal advice, by its very nature, is susceptible to a certain degree of uncertainty or diversity; but can we stretch that notion to a point where there is no accountability at all. For sake of completeness, I might add that insurance for professional negligence is, therefore, not surprisingly still at a very nascent stage India.
Allow third party litigation funding: There are a few items on this list which have been long considered as the taboo-items. Third party litigation funding is one such item. Litigation funding, also known as third-party funding, allows a party to litigate or arbitrate without having to bear the costs of such litigation – either because they are unable to pay for it or because they want to hedge their risk of ultimately losing the litigation. A third party professional funder can pay some or all of the costs/ expenses associated with a dispute in return for a share of the proceeds of the award or decree. If the litigation is not successful, the funder bears the costs it has agreed to fund. In India, third-party funding is not permitted as being against public policy - as we follow the common law principles against champerty. Almost all developed jurisdictions have moved on from the rule against champerty and adopted a legal and regulatory structure prescribing for third party funding. Given the glorious uncertainties of litigation in India, it will come as a boon to litigants if part of the financial burden of litigation can be passed on to professional funds. As I have always maintained, common litigants (even small to mid-sized companies) cannot afford to litigate on issues as it is prohibitively expensive and protracted to litigate in India. Therefore, you use third party funding as a financing tool to survive the rigors of litigating in Indian courts. One may start with a lot of zeal, but not before long, the litigant will run out of steam especially if he wants the services of senior counsels representing them – which brings me to my next item.
Regulate extortionate fees of Senior Counsels: I will try to put this as mildly as possible. The fees charged by most designated senior counsels of the Supreme Court or High Court are not only exorbitant – they are simply extortionate. Illustratively, a top counsel of the Supreme Court, when appearing at the Delhi High Court charges about INR 15,00,000/- ($ 22,550) per hearing – even if the hearing last only for five minutes or there is a simple adjournment. If the hearing is before a tribunal, the fees could be even higher. At the time of admission of new matters before the Supreme Court, a top Senior Counsel will charge about INR 5,50,000 – 7,50,000/- ($ 8,268 - $11,300) per hearing – the hearing will usually not last more than a few minutes. Imagine the plight of the litigants when there are multiple hearings in those cases. For international arbitrations, fees of Senior Counsels range anywhere between INR 7,00,000/- to 25,00,000/- ($10,530 to $37,608) per hearing. Yes, clients are grudgingly paying such fees – but do they really have a choice? There is no better example of the anti-trust principle of abuse of dominant position or cartelisation than when it comes to the fees charged by the top Senior Counsels. There is absolutely no reason why hapless litigants are made to cough up such insane amount of fees with the hope that this is their best chance of getting a favourable order. Litigation will never be a viable option to redress disputes in India, unless the government regulates and puts reasonable ceilings on the fees charged for the services provided by Senior Counsels. Litigants (including corporates) will continue to be disillusioned by the legal process and conflict resolution system where escalating legal costs (contributed mostly by the exorbitant fees of the senior counsels) and protracted judicial proceedings only add to the woes of the end users.
Permit contingent/ success/ alternate fee arrangements: I think it is time that the regulations permit consumers to enter into conditional or contingent fee arrangements. A contingency fee arrangement provides access to the courts for those who cannot afford to pay the lawyers’ fees and costs of civil litigation. It also allows clients to escape them from paying their attorneys by the hour irrespective of the result in the litigation. Moreover, since the lawyers assume the financial risk of litigation, the number of speculative or unmeritorious cases may be considerably reduced. Many developed jurisdictions including United States, United Kingdom, Australia, Brazil, Canada, France, Japan, New Zealand allow such arrangements and provide for suitable regulations. The end users or clients will, at least, have the option or choice of proposing a success fee model – a choice which is simply not permitted today.
Allow legal advertising and marketing: There is a prohibition today on lawyers or law firms to advertise in India. Yes, it will be good for lawyers to drum up their business if they were so permitted. But more importantly, it will also enable consumers or clients to better understand the precise expertise and skill-sets of the lawyers or law firms. Most law firms continue to have truncated websites which provide very basic information about their respective expertise to comply with the current restrictions on advertising. However, if the legal service sector has to thrive in a global economy, they need to have an equal platform to showcase their expertise as the international firms. Therefore, the archaic restrictions on advertisement must give way to greater transparency and knowledge dissemination of prospective service providers.
Facilitate lawyers to raise debt for their business: The single most handicap of a law firm to scale up its business is that it can’t avail loans from bank for its business. The unwritten code amongst banks and financial institutions is not to provide loans to lawyers for their business. This is one of the primary reasons why we have not witnessed a similar entrepreneurial trend in the legal services space as we have in other sectors. For a law firm to operate and grow as any other business entity, it needs access to debt to scale up fast. However, the banking industry has largely shunned the legal services sector altogether. Unless we have a clear change of mindset here, it will be extremely challenging, well-nigh impossible, for the domestic law firm sector to prosper and compete with international firms.
So, that’s my list. While I was very tempted to put two more reform items on this list; somehow I am cautiously optimistic that we will achieve these two items in 2016. First, we need more clarity from the Bar Council of India on whether law firms can operate as a limited liability partnership (LLP) — since that would be attractive to many lawyers. The other item is what will be the great “Wolf! Wolf!” moment – opening of the legal services sector to foreign firms. I think we are all, by now, tired of the discussion on entry of foreign firms. But I am hoping we will cross that bridge. Eventually.

The views expressed herein are entirely personal and not necessarily that of the firm.

Entities funding India Inc's litigation costs see good business opportunity - The Economic Times

MUMBAI: Many Indian businessmen discover the travails of joint ventures with foreign partners when they find themselves in international courts of law, writing out fat cheques to men in black and Queen's Counsels in wigs.

Such expenses can burn a hole in balance sheets, and more and more Indian companies will have to shell it out as cross-border litigations surge. But a breed of specialised financiers is sensing this as a new business opportunity. These are the litigation funds, which bet on the outcome of high-stakes court battles.

Organised like private equity houses, they don't invest in stocks that traditional asset managers do, but instead fund the litigation costs of a company in return for a share of the proceeds.

If a client loses, the fund receives nothing - like a bet that has gone sour. Leading litigation funds like Burford, Harbour and Fulbrook are exploring the possibility of doing business with Indian companies and some have discussed the subject with local law firms.

"Litigation funding as a concept is very attractive to Indian clients and their lawyers. We know this from a recent visit to Mumbai during which we met with 10 law firms where we had an overwhelmingly positive response to our funding solution," said Susan Dunn, head of litigation funding at the London-based Harbour, one of the most experienced financiers.

The attraction largely stems from the fact that the budget is agreed and payments are made every month throughout the life of a case - a structure that minimises cash flow uncertainty.

People who run a fund like this know that in seven out of out ten cases they bankroll may generate nothing, but the other three they win could more than compensate the loss. There are different ways that a fund can capture the upside.

For instance, a fund backing a company involved in a patent fight, may structure the agreement in a way where it receives 10% of the royalty income if the court gives a favourable verdict.

Entities funding India Inc's litigation costs see good business opportunity If the dispute follows a breach of contract after a crash in share price or an exit by the foreign private equity investor, a litigation fund may get a share of the damages claimed by its client. Or, if one party is suing someone for a parcel of land, the financier may be given 5% right on the property title if the client wins the case.

"Litigation funds from the UK and the US are eyeing Indian market considering the spurt in number of international disputes involving Indian parties. A litigation fund will be a new asset class for India, and hence, for funding Indian parties innovative structures need to be devised that are not only legally and ethically permissible, but also tax efficient from an Indian law perspective," said Nishchal Joshipura, co-head, Fund Formation Practice at Nishith Desai Associates, a law firm that has been in touch with some of the funds.

According to his colleague Prateek Bagaria, who is a member of the International Dispute Resolution Practice at the firm, the Indian market is ready to be flooded with funding products, which enable a third party funder to fund Indian parties in their disputes, thereby reducing the stress on their balance sheets.

Indian companies are involved in 18% of the arbitration cases filed in Singapore last year. It may take a while for litigation funds to be registered in India (the way foreign venture capital funds are); and, given the restriction on capital transactions, such cross-border funding has to be approved by local regulators.

High court orders arrest of Neelankarai sub-registrar

CHENNAI: A sub-registrar, who had registered a site using the left hand thumb impression of an ill and unconscious man, is in trouble, with the Madras high court issuing oral directions for his arrest within 48 hours. 

Justice R Mahadevan, who ordered the arrest of M G Dhamu, sub-registrar of Neelankarai, said police will face consequences if they fail to arrest him. Dhamu has filed an anticipatory bail petition before another judge of the court, and it is likely to be taken up for hearing in a couple of days. 

It began with the arrest of Sakthikumar of Thiruvanmiyur in a case registered and probed by the CCB on the court's orders. 


After Sakthikumar filed a petition to quash the case, the prosecution told the court that the property was registered by the mother and brother of the de facto complainant, alleging that they had registered the property when her father was unconscious.

http://tinyurl.com/zzqqddl

Third Party Funding of Litigation in India--Placing the Gun on Another Shoulder?

Third party legal financing, whether of arbitration or of litigation, has taken on increasingly large proportions in recent years. The practice of funding someone else’s litigation, perhaps in return for a share of the proceeds, has been increasing for some time now.

India has a strict policy against contingency fees, and has stayed away from such practices in the past. However, courts have also held that the strict rules of champerty (an agreement whereby a person with no interest in a lawsuit finances it hoping to take a share in the case of a successful settlement), and maintenance (agreement whereby a person with no interest in a litigation agrees to help with the funding of the litigation, without any hope of remuneration)[1] do not apply in India[2]. So, there is nothing to prohibit third party funding under the law in India as it currently stands.

Large funds (akin to private equity firms) are increasingly beginning to finance such actions for a share of the awards. Though there is success in only a percentage of the cases so bankrolled, it is more than enough to cover the costs of the others. Litigation funds are yet to be registered in India, and keeping in mind the restrictions on capital transactions, Indian regulators will have to approve cross border funding[3].

Litigation financing, which often takes the form of monthly payments, can help immensely with cash flow issues. Further, it typically covers the expenditure incurred in the litigation such as money given to court as security, institutional fees etc. It is not in the form of a loan. Agreements can then be structured to ensure that litigation funds get as much value out of the deal as possible: this could include rights in the patent in case of a patent dispute, part of the title of the land so determined in the event of litigation involving property disputes, or simply a share of the proceedings in the case of a money decree.

This can help with intellectual property matters as well: litigations are long and expensive, and often end because parties run out of steam. In cases involving patent disputes, for example, funders ensure that there is suitable margin between the costs and the expected return. However, in cases involving more open access to knowledge, it is doubtful whether third party funds will be willing to finance causes where there can be no hope of monetary returns.

As litigation funding becomes more sophisticated, trade in claims as derivatives is also increasing. This is an increasing trend in the patents arena. However, creation of derivatives from commercial claims is restricted in most jurisdictions[4].

Such funding could provide a serious boost to dispute resolution in India. One lawyer in India, quoted in a news article[5], said: “The number of instances where claims do not get pursued or get abandoned is very high. More often than not, advantage of lack of staying power is taken and, in fact, it is standard strategy to wear out the claimant. Having recourse to lines of finance will have a significant impact, including the quantum at which claims get settled.” Genuine claims and claimants, deserving their day in court, can thus access funds as and when they urgently need them.

Still, serious doubts remain. In an article published in the Wall Street Journal as far back as 2011[6], concerns were raised that such commercialisation of litigation would go against the very ethos of the legal system. Further, in the face of so much pressure and seemingly endless resources, defendants could feel pressured to settle for far more than they should. Conversely, plaintiffs could be pressured to settle for less, in order for the fund to safely recoup as much of the initial investment as possible, as soon as possible. 

Ultimately, the question of whether the funding savours of impropriety appears to hinge on a single factor: the level of control the funder will exercise over the litigation. In the event that the funder is proving to be a guiding hand in the litigation, the spirit of litigation, and the idea of fair play and natural justice, could be lost. Therefore, courts, as well as the legal and financial industries should take care to ensure that proper rules for such funding are put in place as soon as possible. This will ensure that funds, investors, and litigants are all adequately protected.