India has given its mandate to
Prime Minister, Mr. Narendra Modi for his second term, thereby, ushering in an
era of stability to the business community and investors. There were several
sweeping changes that were introduced by Mr. Modi during his first term which
included demonetisation, introduction of a new tax regime, etc which had its
fair share of teething problems. This led to doubts about his re-election, as
the general feeling was that many people were disgruntled with the stringent
changes. However, patriotism got the better of most voters and they have voted
in favour of the Prime Minister once again giving him a second term.
The mandate given by India has
given Mr. Modi a full and clear majority validating that though he introduced several
changes, people understood that changes are for the better of the country.
India has now arrived in the
international arena as a good business destination. The fact that foreign
investments in India has grown by leaps and bounds in the last 5 years, even
overtaking foreign investments in China, speaks for itself. With Prime Minister,
Mr. Modi, there are bound to be several further changes that will assure global
business houses regarding successful business ventures in India.
The General Elections 2019 has
also proved the popularity of Mr. Modi as a global Leader and the victory assures
the people of India of speedy growth, stability and prosperity. This win is a
signal to the global business community that India is stable and India will
shine. Hats off! Prime Minister Modi.
In the recent past the Real Estate industry suffered severe
recession. This was a result of the spiral effect of the builders facing a
money crunch, crashing real estate prices and lack of interested buyers. During
the recession period in the Real Estate business in India, thousands of Home
Buyers suffered a setback, as their hard-earned money was blocked in incomplete
construction projects. When the Buyers claim their money back, builders make
fake promises and fail to return their money back.
This situation left the Home Buyers with no option but to
initiate recovery proceedings which invariably led to delays for several
reasons including the fact that builders delayed the proceedings further by
either not appearing or taking multiple adjournments. To make the matter worse,
the Home Buyers invariably got caught in technical grounds which sometimes even
resulted in dismissal of their case. What was even more worrying was that
builders approached the courts to declare themselves as bankrupt/insolvent
causing even further problems for the Home Buyers. What was even more difficult
for the Home Buyers was that in insolvency proceedings they were not considered
as Financial Creditors or as Operational Creditors.
The Home Buyers, to their relief, saw a silver lining in the
dark clouds when Supreme Court of India in the case of Chitra Sharma & Anr. Vs.
Union of India,Writ Petition (Civil) No 782 of 2017stated that the Home Buyers should be considered as the
Financial Creditors as the amount submitted by them to the builders are used
for the development of the buildings.
After this case the status of Home Buyers has been recognized as
Financial Creditors and now, they can initiate insolvency proceedings against
the corporate debtor under Section 7 of the Insolvency and Bankruptcy code,
2016 as amended thereof (IBC).
Although the above-mentioned Judgment gave relief to the Home
Buyers but they were still very far from recovering the amounts paid by them to
the corrupt builders. The mounting interest on home loans added to their woes.
The fact that they had to service their loan and were still not in possession
of their home only made things more difficult. In most cases the Home Buyers were
looking for a refund rather than possession, but the builders always evaded
this by citing contractual provisions, in the buyer’s agreement, that the Home
Buyers had entered with the builder. These agreements invariably did not
consider refund of the buyer’s money but only had a clause that allowed them a
small interest by way of penalty. This led to a nightmarish situation for the Home
Buyers as they were trapped in a home loan which they could not foreclose as
the money was with the builders.
The National Consumer Dispute Redressal Commission (NCDRC)
passed a final order in the case of Ajai Kumar & Anr. V. Supertech Ltd.,
CC/1639/2017 dated 22-04-2019, stating that in case where the builder
has delayed in handing over the occupancy certificate to the home buyers, then
in such a case the whole amount shall be refunded to them along with the
interest decided by the court. The complainants in the above mentioned case relied
upon Pioneer Urban Land &
Infrastructure Ltd. Vs. Govindan Raghavan Civil Appeal No. 12238 of 2018
decided on 02.4.2019in which
the Supreme Court has stated:
the present case, admittedly the appellant – Builder obtained the Occupancy
certificate almost two years after the date stipulated in the Apartment Buyer’s
Agreement. As a consequence, there was a failure to hand over possession of the
flat to the respondent – Flat Purchaser within a reasonable period. The
Occupancy Certificate was obtained after a delay of more than two years on
28.8.2018 during the pendency of the proceedings before the National
Development Authority V. M.K. Gupta,AIR 1994 SC 787 this court held that when a
person hires the services of a builder, or a contractor, for the construction
of a house or a flat, and the same is for a consideration, it is a “service” as
defined by Section 2(o) of the Consumer Protection Act, 1986. The
inordinate delay in handing over possession of the flat clearly amounts to
deficiency of service.
Infrastructure & Anr. Vs. Trevor D’Lima & Ors., Civil Appeal
No(s). 3533-3534 of 2017 this Court held that a person cannot be made to
wait indefinitely for possession of the flat allotted to him, and is entitled
to seek refund of the amount paid by him, along with compensation.
The Respondent – Flat Purchaser has made out a clear case of deficiency of
service on the part of the Appellant – Builder. The respondent – flat
purchaser was justified in terminating the Apartment Buyer’s Agreement by
filing the Consumer Complaint, and cannot be compelled to accept the possession
whenever it is offered by the Builder. The Respondent – Purchaser was
legally entitled to seek refund of the money deposited by him along with
NCDRC vide its order dated 16.04.2019 in CC No.2335 of 2017 STUC Awasiya
Grahak Kalyaan Association Vs. Supertech Ltd., held that the general
excuses made by the builders for the delay is not acceptable, unless they can
show a direct causal link, and held as under:
there was an order restraining the OP from extracting ground water for
construction purposes, it was for the OP to arrange water for construction
purposes from alternative sources and the flat buyers cannot be made to suffer
on account of such an order, if any.
As far as challenge to the acquisition of land is concerned, even according to
the OP, the writ petition filed by the farmers in Allahabad High Court came to
be decided on 21.10.2011. Though, Civil Appeals were later filed before
the Hon’ble Supreme Court, which eventually upheld the order passed by
Allahabad High Court, admittedly, no order was passed by the Hon’ble Supreme
Court at any point of time, restraining the builders, particularly the builders
in YEIDA from raising construction on the land, which were subject matter of
the civil appeals pending before the Hon’ble Apex Court. Moreover,
the agreements with the allottees on whose behalf this complaint has been
instituted came to be executed much later than the decision of the Allahabad
High Court on 21.10.2011.
As far as the alleged agitation by the farmers is concerned, no direct evidence
has been led by the OP to prove the dates on which and the period during which
the farmers had actually prevented the construction work on the project in
which allotment was made to the consumers, on whose behalf this complaint is
instituted, or the period during which the OP was actually prevented by the
farmers from starting the construction on the said plot. In the absence
of such an evidence, it cannot be known how much delay in the commencement and
/ or progress of the construction can be attributed to the alleged agitation by
case of Ajai Kumar (supra),NCDRC has ordered the builders to
refund the home buyers the total deposited amount along with interest @ 10%
p.a. and Rs. 25,000 for the cost of litigation.
recent NCDRC case of Amal Ganguli Vs. Unitech Ltd., CC/2712/2017dated
09-05-2019, the NCDRC held that home buyers ought to be refunded the amount
paid by them along with interest @ 10%. The facts of the case are similar to
the one cited above. In this case also the payment was taken and the possession
of the flat had to be given to the home buyers after 36 months from the
execution of the Apartment Buyer Agreement. The NCDRC noted that it has been
more than 3 ½ years after the completion of the 36 months contractual period and
till date the builders have not given the possession of the desired flat even
after around Rs.1,77,95,300/- was paid to the builders. The builders in this
present case also gave the same set of excuses and dumped their fault on the
Government Policies but the Commission dismissed all their excuses. The
Complainant in this case placed the reliance upon the decision of the NCDRC
in CC No. 1100 of 2015 Vibha Gupta Vs. M/s Unitech Ltd. & other
connected matters which was decided on 28.11.2016 and which stated
“6. The next question which arises for consideration
is the quantum of compensation which should be paid to the complainants for the
delay in completion of the villas. As far as the prohibition on use of
underground water in construction is concerned, the learned counsel for the
complainant has drawn my attention to the order dated 21.08.2012 passed by a
Divisional Bench of Punjab & Haryana High Court in Civil Writ Petition No.
20032 of 2008 wherein the High Court noted that the public notice issued under
Section-5(3) of the Environment Protection Act, 1986 was published in the
newspaper on 26.12.2000. It further shows that the said notice had imposed a
complete ban upon the use of underground water in the construction without
prior approval of the competent authority. It was noted by the High Court that
despite publication of the aforesaid notice, the builders continued to use
underground water for construction purposes. If there was a complete ban on use
of underground water for construction and the said prohibition was notified on
26.12.2000, the opposite party must have taken into account, the impact of the
said prohibition while entering into Buyers Agreements with the complainants.
Therefore, it is not open to the opposite party to rely upon the said prohibition
in order to justify the delay in construction of the villas sold to the
complainants. The opposite party knew at the time of entering into agreements
with the complainants that it will not be able to use underground water for
construction of the villas and therefore, will have to make alternative
arrangements from authorized sources for making the water available for the
said construction. Therefore, the aforesaid prohibition on use of the
underground water for construction purpose does not justify the delay in
completion of the construction. In any case, no material has been placed by the
opposite party on record to show that efforts were made by it during the
relevant period to procure water from alternative sources but it was unable to
obtain the water from the said sources. More importantly, in the Buyers
Agreement executed between the parties, it was not disclosed to the buyers that
since no underground water can be used for construction purpose, the developer
will have to arrange water from alternative sources and in case it is not able
to arrange water, the construction would be delayed and in that case, it will
not be held responsible for the delay in completion of the construction.”
the recent judgments discussed above, Home Buyers are now protected from
corrupt builders and can claim their money back. The various judgments of the
Supreme Court, High Courts, NCDRC etc. ensure protection to the Home Buyers and
the builders cannot get away by citing flimsy grounds for delay. The fact that
the courts are now granting interests on the money paid by the Home Buyers has
given them further hope. In short, finally, the Home Buyers are now protected.
 Col Vinod
Awasthy V. AMR Infrastructures Ltd., C.P NO. (IB)-10(PB)/2017
Recently, the Supreme Court of India, in a case of Rajesh and others vs. State of Haryana 2019, has held that in case a person is named as an accused or co-accused in a first information report (FIR) by a complainant, but the police, upon investigation, file a chargesheet without implicating them on the ground that they did not find such person(s) involved in the particular case, then in such cases the court may still have the power to proceed against such person(s). The law governing criminal procedure in India empowers a court to proceed against persons who have not been accused of committing any offence.
this case the Trial Court and the High Court of Punjab and Haryana at
Chandigarh that allowed the prosecution to file an application for summoning
additional accused persons to face the trial.
the Supreme Court upheld the said Judgments on the ground that if the court
finds that a particular person should be summoned as accused, the court may do
so by giving a chance to the complainant to file a protest petition urging the
court to summon other persons as well, who were named in the FIR but not implicated
in the charge sheet.
The National Consumer Dispute
Redressal Commission (NCDRC) and other consumer courts have regularly dismissed
complaints on mere technical grounds and without condoning marginal delays. The
NCDRC, vide order dated 15th February 2019 in the case of “Vibha
Bakshi Gokhale vs. Gruhashilp Constructions” dismissed
the appeal, filed by the flat buyer against a construction firm, on failure to
file the rejoinder and evidence. The order was based on the conditional order
dated 16th November 2018 requiring the appellants to file a
rejoinder and evidence within a period of four weeks, failing which the
complaint was to stand dismissed automatically. Therefore on 15th
February 2019 the court dismissed the appeal observing that it is perhaps
because the appellants do not have any merit in the case, that there was a
delay in filing a rejoinder and evidence.
The Appellant appealed to the
Supreme Court of India against the said Order of NCDRC. On 10th May 2019 the Bench
comprising of Hon’ble Justice DY
Chandrachud and Justice Hemant Gupta of Supreme Court of India, made an
observation regarding the dismissal of consumer complaints on small technical
grounds. While setting aside the said Order of NCDRC, the Hon’ble Bench
observed that Orders like such not only detracts from the very purpose for
which the NCDRC was established but the dismissal of consumer complaints on
technical grounds adds to the burden of litigation and fails to ensure justice
in consumer fora. The
Hon’ble Bench also stated that the main motive behind the setup of NCDRC is
protection of the rights of consumers by helping them to seek access to justice
under the Consumer Protection Act,1986.
The Court held that drawing
an inference regarding the delay being caused by the appellant because of lack
of merit in the case, was totally unwarranted.
The marginal delays, which are caused, needs to be condoned in order to
safeguard the purpose of the Act.
The Court went further to
state that while not condoning marginal delays on grounds that the Consumer
Protection Act 1986 stipulates a period within which the consumer complaint has
to be disposed off, the Courts need to keep in mind that complaints can not be
disposed off due to non-availability of resources and infrastructure and therefore
it is harsh to penalise a bona fide litigant for marginal delays that may occur
in judicial process.
This Judgment has paved the
way for justice for consumers by clarifying that there is a need of condoning
marginal delays and technical grounds to ensure that the ends of justice are
not defeated and no bona fide litigant shall be denied justice because of
unwarranted inferences, technical grounds or marginal delays.
According to various newspaper reports,
the Government of India has recently planned to make quick response (QR)
code-based payment method using the Unified Payments Interface (UPI), mandatory
for all shops and establishments beyond a certain threshold.
This Government measure is aimed at
promoting digital payments in business to consumer (B2C) transactions and at
curbing tax evasion in the country. Further, this move may help consumers to
make cashless and hassle-free transactions and also enable shopkeepers to avail
Goods and Services Tax (GST) benefits.
With the aim to establish a cashless
economy in India, the Government had earlier allocated a target for banks to
deploy 20 lakh physical and mobile points of sale (PoS) in FY 2018-19. But it
has been noted that only 44% of the target has been achieved up to 31.01.2019.
But in furtherance of its objectives, the
Government has recently raised its target to 4019 Crore digital payment transactions
by FY 2020, in order to encourage digital payments across the country. Out of
the said target, a target of 3411 Crore digital payment transactions has been
allocated to banks and further, they have been mandated to deploy 8.5 Million
PoS terminals across rural areas and north-eastern states of India.
Although, as per various newspaper
reports, a few states like West Bengal had previously opposed the move to roll
out incentives to encourage digital transactions, as it may adversely affect
rural consumers, but the Government seems to be positive in its endeavour to promote
digital payments as the preferred option for consumers and continues to plan
for introducing incentives to customers who prefer digital payment transactions
over cash-based transactions.
The High Court of Bombay in the case of Popat Bagiananth Kesar v State of Maharashtra
passed a Judgment dated 16.04.2019 whereby, the Court held that driving a
vehicle at a high speed in thickly
populated and busy road is considered rash and negligent driving.
In the above case
the Applicant was speeding in a busy road which lead to the death of a seven-year-old
boy for which the Applicant was convicted under Section 304A and Section 279 of
the Indian Penal Code, 1860 as amended thereof (the Code). The Trial Court in
its Judgment dated 13.03.2006 convicted the Applicant under the following
Awarded sentence of one year for the offence punishable under Section 304A of the Code and
Inflicted one-month imprisonment for the offence under Section 279 of the Code and
sentence of one month and fine for the offence under Section 184 and 183(1) of Motor Vehicle Act, 1988 as amended thereof
Later, upon an
appeal to lower Appellate Court, the Applicant was acquitted for the offence
under Section 279 of the Code and Section 184 of the Act. However, the lower
Appellate Court approved the conviction of the Applicant for the offence
punishable under Section 304A of the Code and punishment was reduced from one
year to three months imprisonment.
Soon after, the
Applicant filed a Review Petition before the Bombay High Court challenging the
said Judgement dated on 21.12.2006. Herein the High Court observed that even
though speeding of the vehicle is one of the factors that indicate that the
driver was driving in the most rash and negligent manner but it is not the sole
criteria to determine that there is negligence or rashness on the part of
driver as it always depends on facts and circumstances of each case. But in this
case the driver had the knowledge that the place of occurrence of the accident was
heavily populated and that it was a busy road but he still drove the vehicle at
a high speed. Thus, the Court held such an act to be rash and negligent under
5th year student, Mar
Gregorios College of Law, Kerala
The Supreme Court of India in the
case of Bharath Broadband Network Ltd Vs United Telecoms Ltd, passed a Judgment
dated 16.04.2019 whereby the Apex Court held that the appointment of arbitrator
by a person who himself is ineligible to be an arbitrator is void ab initio as per Section 12 (5) of
the Arbitration and Conciliation Act, 1996 as amended thereof (the Act).
In the said case, disputes had
arisen between the Appellant and the Respondent with regard to purchase order for
a turnkey project for supply, installation, commissioning and maintenance of
certain Gigabit Passive Optical Networks (GPON) and other equipments. As a result,
the Respondent invoked the arbitration clause and called upon the Chairman and Managing
Director of the Appellant Company in order to appoint an independent and
impartial arbitrator for adjudication of such disputes.
Chairman and Managing Director of the Appellant Company nominated Mr. K.H Khan
as the sole arbitrator (Arbitrator) on 17.01.2017 to adjudicate and determine
disputes that arise between them. The Appellant requested the Arbitrator to
withdraw himself from the proceedings as he was de jure unable to perform his
duty as Arbitrator. Further they wanted to approach the High Court for the appointment
of another arbitrator in his place. But the Arbitrator by an Order dated
21.10.2017 rejected the said application without giving any reason.
Thereafter, the Appellant filed a
petition in the High Court of Delhi under Section 14 and 15 of the Act. But the
Delhi High Court rejected the said Petition on the ground that the very person
who appointed the Arbitrator is estopped from raising a plea that such Arbitrator
cannot be appointed after participating in proceedings.
Further, the Appellant filed an
appeal against the said Delhi High Court Judgment in the supreme court of India
under Sections 12 to 14 of the Act based on the judgment rendered in TRF Ltd v ENERGY ENGINEERING PROJECTS Ltd.
The Apex Court
followed the 2017 decision in TRF Ltd. (supra)
and held that the Chief Managing Director (CMD) of Bharath Broadband
Network Ltd (BBNL) was himself an ineligible person as per Item 5 of Seventh
Schedule of the Act, which bars manager, director etc. of a party to the
dispute from being an arbitrator. Thus, the Apex Court directed the High Court may appoint
a substitute arbitrator with the consent of both the Parties.
As per Article 19 (1) (a) of the Constitution
of India 1949 as amended thereof, every Individual has the fundamental right of
freedom of speech. But there is a very thin line which when crossed will turn
out to be defamation as it may hinder the fundamental right of other individual(s).
So the major question that arises is what
is defamation? What is the limit up to which the freedom of speech can be
exercised so that it is not defamation?
These questions are often asked but
remain unanswered. As per the current scenario of social media any one can be
made hero or can be defamed by just one video. It may be a boon for some people
but it is definitely a nightmare for those who are criticized or defamed.
Defamation as per the law is damaging a good name/ reputation of someone in public. For example sting operations done by the media are often defamatory as they show the concerned person in poor light. When such operations are done for the welfare of public at large it will not be considered as defamation. As per the recent Judgment of Delhi High Court in Indian Potash Ltd. V. Media Contents and Communication Services Pvt. Ltd. 2007in which a sting operation was done against the Petitioners wherein one of their employees was caught on a hidden camera saying that the company mixed prohibited chemicals in the milk which was supplied by them in the Western UP.
The Media Company took a stand that the
intention for broadcasting this video was not to defame someone but to bring
out the truth to the public as to the malpractices followed by these companies
to just fill their coffers. It was further contended by the Media Company that
the story cannot be termed as defamatory as it was carried in good faith and
for public good and is covered and protected by First, Second, Third and Ninth
exception to Section 500 of Indian Penal Code, 1860 and that the defendants
rely on the fair comment and truth as a defense. The thing which has to be
noted was that the sting operation was not against the Company but the
Individual. Strangely the Company instead of taking action against the employee
filed a law suit.
It was stated by the Delhi High Court that:
“Sting operations, possible in the recent past, are an
outcome of advancement in technology which permits video and audio recording,
without the target person coming to know. Such sting operations occupy a place
of their own and are today an important part of the society. Misdeeds are
always clandestine, shrouded in secrecy and rarely proved owing to complexity
of all involved therein, and with hardly any evidence. None indulging in such misdeeds
admits thereto, least to journalists and media persons. The true picture is
presented, by laying a trap. In the subject telecast also, the persons depicted
have been recorded, by the journalists/media persons portraying themselves to
be engaged in the business of milk and interested in availing services by
adulterators or wanting tips therefor. The only way to bring the same in the
public glare is through such sting operations which even though may not result
in punishing the guilty but at least has the effect of stopping or suspending
the misdeeds, even if for a short time.”
In Indian Express Newspapers (Bombay) Private Ltd. Vs. Union of India 1985), it was held that in today’s free world freedom of press is the heart of social and political intercourse; the press has now assumed the role of the public educator; the purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments; the authors have to be critical of the actions of the Government in order to expose its weaknesses; that such publications become an irritant or even a threat to power and the Governments naturally take recourse to suppress such publications in different ways but it is the primary duty of all the national courts to uphold the said freedom and invalidate all laws or administrative actions which interfere with it, contrary to the constitutional mandate. It was held that the Court represents the conscience of the community and exercises the power to keep alive and vital the higher values and goals towards which our society imperfectly strives.
Though the press and media are not
immune/ exempted from the general law of defamation but as per the Constitution
and restriction any news which is published for Public Welfare at large will
not be construed as defamation.
So as per the Delhi High Court Judgment in the above mentioned case it was held
that the sting operations done by the Media Reporters cannot be stated to be
defamation on the grounds that the act done by them was not to cause any
disgrace to the Company but it was for public knowledge and awareness regarding
whether the food they are consuming is fit to be consumed or not.
So in the end we can be conclude that
the information which is published by media person or any individual as long it
is not with the intention of harming any person will not be considered as defamation.
Defamation is a criminal offence and any person who alleges defamation must prove
that there is mens rea or malafide intention in the allegation.
In an unprecedented move, the United Nations
Security Council (UNSC) has recently designated Masood Azhar, the Chief of
Jaish-i-Mohammed (JEM), an extremist group based in Pakistan, as a global
terrorist on 01.05.2019. UNSC is an important Organ of the United Nations that
is responsible for maintaining international peace and security. It comprises
of 15 members including 5 permanent members, i.e.
China, France, Russian Federation, the United
Kingdom, and the United States.
UNSC designated Masood Azhar as a global
terrorist on the grounds that he has been associated with Al-Qaida through JEM for
“participating in the financing,
planning, facilitating, preparing, or perpetrating of acts or activities by, in
conjunction with, under the name of, on behalf of, or in support of”,
“supplying, selling or transferring arms and related material to”, “recruiting
for”, “otherwise supporting acts or activities of”, and “other acts or
activities indicating association with”Al-Qaida, Osama bin Laden, and the
Taliban, which, in turn, are terrorist organizations. Reportedly, he is said to
have ordered many other terrorist attacks in India, including terror strike on
Parliament House, Pathankot Air Force Base, Pulwama, etc.
Now, as a result, the UNSC would impose the following sanctions and targeted measures on Masood Azhar (Designated Terrorist):
Hereunder, all states would be required to prevent the direct or indirect transfer, sale and supply, from their respective territories or by their nationals outside their respective territories, or use of their flag vessels or aircraft, or use of arms and related material, spare parts, and technical assistance, or training related to military activities, etc to the Designated Terrorist.
2. Assets freeze
Hereunder, all states would be required to freeze the finances, funds and other financial assets, etc of the Designated Terrorist, without delay.
3. Travel ban
all states would be required to prevent the Designated Terrorist from entering into
or allowing transit through their respective territories.
A number of countries committed towards zero
tolerance against terrorism, including India, have welcomed this move of the
UNSC and this move may also compel Pakistan to act against the Designated