Monthly Archives: April 2021

Remedy to An Allottee — Under RERA Act

In terms of Section 18 of the RERA Ct, if a promoter fails to complete or is unable to give possession of an apartment duly completed by the date specified in the agreement, the promoter would be liable, on demand, to return the amount received by him in respect of that apartment if the allottee wishes to withdraw from the project. Such right of an allottee is specifically made “without prejudice to any other remedy available to him”. The rights so given to the allottee is unqualified and if availed, the money deposited by the allottee has to be refunded with interest at such rate as may be prescribed. The proviso to Section 18(1) contemplates a situation where the allottee does not intend to withdraw from the project. In that case he is entitled to an must be paid interest for every month of delay till the handing over of the possession. It is up to the allottee to proceed either under Section 18(1) or under proviso to Section 18(1). Imperia Structures Ltd. v. Anil Patni, (2020) 10 SCC 783.

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Compromise Decree Comprising of Immovable Property Other Than That Which is subject matter of Suit or Proceeding – Requires Registration

A compromise decree passed by a court would ordinarily be covered by Section 17(1)(b) but sub-section (2) of Section 17 provides for an exception for any decree or order of a court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding. Thus, by virtue of sub-section 2(vi) of Section 17 any decree or order of a court does not require registration. In sub-clause (vi) of sub-section 2, one category is excepted from sub-clause (vi), a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding. Thus, by conjointly reading Section 17(1)(b) and Section 17(2)(vi), it is clear that a compromise decree comprising immovable property other than which is the subject matter, of the suit or proceeding requires registration, although any decree or order of a court is exempted from registration by virtue of Section 17(2)(vi). Mohd. Yusuf v. Rajkumar, (2020) 10 SCC 264.

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Triple Talaq – Grant of Anticipatory Bail

The statutory text indicates that Section 7(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019 does not impose an absolute bar on grant of bail. On the contrary, the Magistrate may grant bail, if satisfied that “there are reasonable grounds for granting bail to such person” and upon complying with the requirement of hearing the married Muslim woman upon whom talaq is pronounced. Hence, though Section 7 begins with a non obstante clause which operates in relation to the CrPC, a plain construction of Section 7(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019 would indicate that it does not impose a fetter on the power of the Magistrate to grant bail, save and except, for the stipulation that before doing so, the married Muslim Woman, upon whom talaq is pronounced, must be heard and there should be a satisfaction of the Magistrate of the existence of reasonable grounds for granting bail to the person. This implies that even while entertaining an application for grant of anticipatory bail for an offence under the Act, the competent court must hear the married muslim woman who has made the complaint, as prescribed under Section 7(c) of the Act. Only after giving the married Muslim woman a hearing, can the competent court grant bail to the accused. Rahna Jalal v. State of Kerala, (2021) 1 SCC 733.

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Gift Deed – Required to be Compulsorily Attested

A gift deed is required to be compulsorily attested in terms of Section 123 of the Transfer of Property Act, 1882. Similar is the provision in respect of execution of a Will which is required to be attested in terms of Section 63 of the Succession Act, 1925. Section 68 of the Evidence Act makes it mandatory to examine one of the attesting witnesses for the purpose of proving of the execution of the Will but such limitation is not applicable in respect of proof of execution of any document which has been registered in accordance with the provisions of the Registration Act, 1908, unless the execution is specifically denied. Govindbhai Chhotabhai Patel v. Patel Ramanbhai Mathurbhai, (2020) 16 SCC 255.

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Proceedings under the Rent Act – Is of Summary Nature

The proceedings under the Rent Act is of summary nature wherein the jural relationship of landlord and tenant is to be taken note of to the extent it is required for considering such eviction petition and the rigour of examining the ownership ought not to be indulged in the manner as is done in a title suit unless the respondent sets up title to the very rented property which is adverse to that of the landlord. Santosh Chaturvedi v. Kailash Chandra, (2020) 16 SCC 672.

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Secondary Evidence – No Requirement of Application

There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed. Dhanpat v. Sheo Ram, (2020) 16 SCC 209.

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