Questions and Answers December 2023

Question 1: The land booking has been cancelled, and there is a request for a refund of the money paid to the builder. The agreed-to-sell document was signed, but objections to the terms arose before registration, resulting in a refusal to register. The total amount paid is Rs 2, 96, 00,000, distributed across installments of Rs 1,000, Rs 99,000, and Rs 96,132. (Jitendra Yadav, Jhansi, UP)

Answer: If the agreement remains unsigned, no terms have been agreed upon. In situations where legal requirements dictate that an agreement must be registered to be valid, failure to register renders it as unsigned. This is particularly applicable to agreements involving immovable property, where registration is deemed mandatory.

How buyer has the right to cancel the booking, as per agreement

Buyer can cancel the booking within the stipulated time frame of one month from the receipt of the Unregistered Agreement for Sale (Plot) dated 14/07/2023.
That the agreement between the promoter and the allottee becomes binding only after the allottee signs and delivers the agreement along with the necessary schedules and payments within 30 days from the date of receipt.
The submission of the draft agreement with the allottee’s appearance for registration before the Sub-Registrar is a crucial step in this process. As per clause 20 of the draft agreement, since this process remains incomplete, there is no formal agreement established between the parties.
Promoter has also not taken initiative to get the document registered to make it complete contract, hence the application of the allottee shall be treated as cancelled as per draft agreement clause 20 & 22.
The sums deposited by the allottee, including the booking amount, are to be returned without interest or compensation.

Reasons for cancelling the deal: Legal issues

Failure to adhere to the obligatory stipulations outlined in The Uttar Pradesh Real Estate (Regulation and Development) (Agreement for Sale) Rules, 2018, as per the RERA Act of 2016, including the omission of critical sections such as “21. Entire Agreement.”
Non-receipt of the Non-Encumbrance Certificate and a No Objection Certificate (NOC) from the relevant authority, a prerequisite for loan approval from any bank.
Indication of the land being mortgaged to HDFC Bank, necessitating permission from the bank, with no recorded evidence of such approval.

The verbal assurances given by the representatives of the promoter substantially deviate from the terms specified in the Agreement for Sale (Plot), particularly in relation to the insistence on a 90% payment without obtaining the necessary No Objection Certificate (NOC) and Non-Encumbrance Certificate.

Status of Contract

There is no fully registered agreement with the sub-registrar; what exists is merely an offer or proposal. Without formal acceptance, there is no legally recognized contractual agreement. This situation involves the provision of funds for a contract that remains incomplete, placing the recipient of the funds in debt to the homebuyer. The obligation is to refund the money along with interest and compensation due to the breach of contract, which has led to misrepresentation to the homebuyer and the squandering of time, energy, and other potential opportunities.

Question 2: Is it possible for me to approach the High Court for the enforcement of the consumer court order while the opposite party’s appeal is pending before the State Commission?

Background: The truck, financed through a loan, had one instalment unpaid. The bank repossessed and sold the vehicle at auction. However, the truck has not yet been transferred to the buyer. A consumer complaint was filed, and since the opposite party did not appear, an ex-parte order was issued in favour of the complainant. The case has now reached the execution stage, but the opposite party has filed an appeal. Can I seek execution in the High Court while allowing the appeal to continue in the State Commission? (Shubh Yadav)

Answer: After appeal is filed, execution shall be stayed. Court may order the lower commission to hear the case on merits and send back to the District commission for trial. High court has no jurisdiction to enter into the matter. In some cases where execution by revenue department is delayed, HC in writ has ordered to speed up execution but not in cases of appeal.

Question 3: My phone sustained physical damage, and I personally arranged and paid for the repairs within the warranty period. Currently, the phone is malfunctioning, and the service centre has declined repair requests multiple times. Now that the warranty has expired, can I still request repairs despite the device being out of warranty? (Aniket, Faridabad, Haryana)

Answer: It’s crucial to grasp the terms of the warranty. Typically, if an unauthorized entity performs repairs during the warranty period, it may void the warranty. However, if the service centre conducts the repair, you generally have the right to request further repairs. In your situation, where the damage is a result of your actions, there might be complications. Nonetheless, legally, if you reported the issue during the warranty and it remains unresolved even after the warranty has expired, it can be considered a continuing cause of action.

Question 4: Is it possible to scrutinize the LIC policy under Section 45 of the Insurance Act after the policy is revived by paying the missed premium?

Background: The LIC policy was initiated on 28.10.2016 by my father. A premium was missed, and revival occurred on 16.7. 2020 after a thorough health check-up. The policyholder passed away on 18.2.2021, and the three-year period had not elapsed. Post-revival, the policyholder underwent heart treatment. The claim was declined due to non-disclosure, despite the demise not being attributed to a heart attack. (Raj Jain)

Answer:

Two questions involved –

Within three years, can the company cancel the policy ?YES Section 45 (2) A policy can be called in question at any time within three years from the date of commencement of the policy or the date of revival of the policy or from the date of rider of the policy…..

But it should have been communicated in writing to insured about the reason and decision and opportunity to explain. If cause of death is not the non-disclosure of material fact, in your case heart attack, you need to specifically disclose with evidence the cause of death and proved facts so not disclosed are not ‘material’ in your case.

Question 5: Is it possible to exchange my vehicle or receive a refund if a feature is absent?

Background: I bought a car from Tata Motors in May 2023. In July, I discovered that a feature mentioned in the brochure (Dual function of DRL with indicator) was missing. Upon contacting the showroom, they explained that this feature is intended for a higher model and is not available in my model. Additionally, other complications could not be rectified. (Abhishek Singh Rathore, Pune)

Answer: If the brochure affirms the inclusion of a particular feature in your version, the dealership is obligated to provide that feature if it is feasible. If it turns out that the promised feature cannot be implemented in your model, you have the right to either exchange the car or receive a refund.

For any additional complications that can be addressed through repairs or part replacements, every effort should be made to rectify the issues. If, despite attempting repairs and changing parts, the problems persist and cannot be resolved, the next step would be to consider exchanging the vehicle.

Question 6: S.Dass – Execution against Jiva club issue.

Facts -Execution petition filed, OP not appearing before the court. Available address rented. I have no property details but bank account details

Can account be attached?

Answer:

Two issues involved –a) Notice not served

Notice can be sent to available address last known to the court and you.
Can send through E-mail also
Can do substituted service through publication in the local paper where OP office/branch, application to court for permission and notice matter.

b) Attachment of property stage comes only after notice served property and still OP does not appear.
c) Account cannot be attached without taking all steps as it leads to many complications, other business /personal activities of a person get affected
c) You can get address and other details from the bank, can request court to direct bank to do so.

Question 7: Rajnikanth Panigrahi :Procedure in Appeal before state commission

Facts: Complaint before District commission for defective paper cup machine making three parties-Dealer Rashmi Enterprises, Manufacturer Aman Impex and SBI General Insurance for loan

Only Rashmi Enterprise appeared, order against Rashmi Enterprises and in my favour

I appealed for not giving compensation

SBI &Rashmi Enterprises also challenge the order

State commission finds district order erroneous because Aman impex was not served and manufacturer is not liable now

State commission suggests to attract Product liability clause for execution of order in the absence of manufacturer .

Answer:

In the absence of any order against manufacturer, you can catch hold dealer only under product liability clause section 85,86

Question Sanchay Deshmukh :Property issue

Facts ;Purchased a land which belonged to Govt(school &garden land) but colonizer and sarpanch illegally sold to me.They were sent to jail for crime.Now not getting any approvals for construction

Answer; this is not your land now, its declared Govt. land .You can file case for refund of your money in civil court as recovery suit and compensation also for unfair dealing

Can also file before consumer court/RERA for unfair trade practices and refund with compensation

Question 8: Builder issue

Fact: complaint filed before consumer forum against DHFL which was dismissed approached NLCT &copy to president, nothing has happened

Ans :

NCLT is not appellant court for consumer matters ,hence if filed appeal,it will not work
In case case dismissed because OP Is Declared Insolvent ,Then You Have Become financial creditor and file claim before NCLT for refund or any other solution as per resolution passed by NLCT

Question 9: Imran khan builder issue

Facts; Booked flat in 2017, 3 years’ time for construction

After 6 year’s now flat ready but asking for increased cost.

Answer:

File complaint before consumer commission and ask for some interim order for possession at agreed cost till matter is decided on merits

Claim for compensation for delay before the court
Contest the issue of cost increase because delay was due to builder and homebuyer had agreed for cost which was at the time of three years of construction period.

Question 10: Purchase of vehicle

Facts: Purchase vehicle, delivery due on 6.12.2023 .At the time of delivery sunroof not working, promised to give on 11/12/2023 neither delivery nor changing vehicle.

Refusing cancelling Registration

Answer:

Can file complaint before consumer commission you have options to repair, change, refund etc. depending on merit of the case

Question 11: Complaint ;Radhey Gupta ,Education issue

Facts; Case filed against University. Court asks for some document or proof to show you are a consumer in education matter

Answer:

Student is not consumer against University

Bihar examination board case 2009

Question 12: Sandeep Arora

Facts: New Bike with starting problem .Service centre failed to remove the defect .Now case filed before consumer commission and service centre refused to give any service. Next date is 19.2.24

Any way to get bike repaired or early date possible .What application can be filed before court.

Answer:

You can file an application stating your this problem and ask for early date
You can also file an application during hearing next time for interim order do get vehicle repaired till case decided on merits
You can also request court to obtain expert opinion about the defects in the vehicle and decide the relief on merits

Question 13: Electricity Bill

Facts: Getting huge bill of Rs 25000/- for four months due to fast meter

Answer:

Application to electricity department for checking meter, you need to pay some fee for it

In case meter found fast /defective, billing shall be done on the basis of earlier billing pattern calculating average during the last six months

Question 14: Purchase of vehicle

Facts :Purchase Yamaha Aero ON 5TH Oct 023 Engine stops after driving 1364 Km ,repaired after 4 days Again after 3200 km same problem

Can I get vehicle changed

Answer:

Not a case of change unless declared beyond repair or having manufacturing defect .May go to consumer court, ask for obtain expert opinion and order on merits

Question 15: Construction issue

Facts Collaboration with dealer for construction .Work not completed, Lift not made functional .Given us fourth floor

Answer: Explore any payment issue .Can go to consumer commission /RERA

Question 16: A.Kapur Advocate

Can relevant law be incorporated in the petition/complaint?

Answer:

Generally petition /complaint is narration of facts with relevant documents. Case law, citation and judgments are attached with written arguments and discussed at the time of oral arguments

But while drafting complaint when you allege for deficiency in service, you can refer to relevant provisions such as how you become complainant as per definition of complainant, product liability clause, express warranty, unfair trade practice or misleading ads defined in the act.

Question 17: Rajput Baghela

Builder has not obtained completion certificate but forcing to take possession.

Answer:

First, you can refuse to take possession without completion certificate because there might be some incomplete work or administrative/legal requirement for which Completion certificate is either rejected or not applied by builder

Second: sometimes due to so much delay, homebuyer accepts possession without completion certificate, in such situation corporation may ask for extra taxes for this default. There are judgments that such penal taxes are to be borne by builder only for which you may have to go to court

Third, you can go to consumer commission or RERA at this stage also for possession with completion certificate and compensation for delay.

Question 18: Advocate Raj Jain

After 45 days of notice, OP comes with excuse that policy record of complainant not traceable, time be given to trace records.Commission asked to submit proof of service made .Is this the duty of consumer to track service of notice?

Answer: After 45 days from proper notice with documents, this excuse cannot work. Commission asking you to provide proof of service is to confirm that service is made in proper manner. After confirmation of notice served, commission can exercise its power to go expert against OP.

It’s not duty of complainant to track service of notice but you can facilitate the court when you press for proceeding ex party against OP.

Question 19: Dilip kumar

Can we ask for govt. documents also through RTI ?

Answer:

Yes, you can ask for documents also if you are an interesting party. You need to prove how you are entitled to get information or documents. Further under RTI you can be given information only but cannot reply as to why no action/or un- favouring action has been taken

Question 20: Smitha Bangalore

What is the difference between execution through civil court and consumer commission, explain procedure.

Answer: There is no difference in procedure for execution of order by consumer commission. In both places order xx1 Ist schedule of CPC 1908 is to be followed. Consumer commissions are given power of Ist class Magistrate to follow this procedure within the Act under sec 71&72

Procedure is the same –Notice, BW, NBW through police, Arrest by police &fine by commission, order for attachment of property.

Question 21: Vinod Yadav

How medical negligence cases are proceeded and proved

Answer:

Procedure is same for all cases coming to consumer commissions since in medical cases, medical literature, expert opinion etc. are required. Treatment record is also important factor, Sometimes more than one affidavits are needed for evidence. There may be more than one expert opinions are accepted or sought by courts. Hence process becomes lengthy

Negligence is proved on the basis of entire facts, circomstances, treatment record, medical literature and medical expert opinion. Activities of para medical staff, required infrastructure in the hospital /nursing Home and requisite facilities are also considered for reaching to some logical end