09. September

Any claims subsequent including any on the basis of assessment subsequent to the liquidation commencement date cannot be given any credence by the liquidator – The Assistance Provident Fund Commissioner (Legal), EPFO Vs. Chandra Prakash Jain, Liquidator of Khushi Foods Ltd. – NCLAT New Delhi

Hon’ble NCLAT held that there is no dispute that assessment for the interest was done in the year, 2021 much after the liquidation commencement date. The claim under Regulation 12 and 16 of Liquidation Regulation, 2016 had to be filed as on liquidation commencement date. When the claim has to be filed on the liquidation commencement date any claims subsequent including any on the basis of assessment subsequent to the liquidation commencement date cannot be given any credence by the liquidator and no error was committed by liquidator in not accepting the claim of damages and interest consequent to the assessment paying in the year 2021.

Any claims subsequent including any on the basis of assessment subsequent to the liquidation commencement date cannot be given any credence by the liquidator – The Assistance Provident Fund Commissioner (Legal), EPFO Vs. Chandra Prakash Jain, Liquidator of Khushi Foods Ltd. – NCLAT New Delhi Read Post »

It is the only duty of the promoter to execute Agreement to Sale, not the duty of the allottee to seek the Agreement to Sale executed | Interest on refund cannot be denied on the ground that no Agreement to Sale was executed between the Allottee and Promoter – Renu Singhal Vs. Indian Railway Welfare Organisation – Rajasthan REAT

Hon’ble Rajasthan REAT held that a bare perusal of Section 13 read with Section 19 of the RERA Act, 2016, it is the only duty of the promoter to execute “Agreement to Sale”, if more than 10% cost of the apartment has been accepted. Section 19(1) provides that the allottee shall be entitled to obtain the information relating to sanctioned plans etc. including the information as per the “Agreement to Sale” signed with the promoter. It is not the duty of the allottee to seek the “Agreement to Sale” executed, rather allottee has right to obtain information as desired under Section 13 of the Act of 2016, regarding the “Agreement”, and the promoter is duty bound to get the “Agreement to Sale” executed in compliance of Section 13 of the Act of 2016.

It is the only duty of the promoter to execute Agreement to Sale, not the duty of the allottee to seek the Agreement to Sale executed | Interest on refund cannot be denied on the ground that no Agreement to Sale was executed between the Allottee and Promoter – Renu Singhal Vs. Indian Railway Welfare Organisation – Rajasthan REAT Read Post »

Can unregistered MoU be treated as agreement for sale and Section 18 of RERA be invoked? | Will provisions of RERA Act prevail over Arbitration and Conciliation Act, 1996? | Can delays in the granting of permissions/ sanctions from various competent authorities, litigations in the court be construed as force majeure? – Ashok Sayaji Dhatrak Vs. Rashmi Realty Builders Pvt. Ltd. and Ors. – Maharashtra REAT

Hon’ble Maharashtra REAT held that:

(i) Although the said MoU is not registered, the same discloses all the essential ingredients of a concluded contract, which is binding on both the parties.
(ii) Delays in the granting of permissions/ sanctions from various competent authorities, litigations in the court, etc., cannot be construed as force majeure.
(iii) An extended date of possession in the MahaRERA Certificate cannot be allowed to amend the agreed date of possession as per the terms in the said MoU as the same is without any consent from the Complainants.
(iv) The provisions of RERA Act have overriding effects in the case of repugnancy with any other Act including the Arbitration and Conciliation Act, 1996.
(v) Mere non-execution of the agreement for sale, Complainants are not precluded from invoking Section 18 of RERA. The provisions of Section 18 of RERA can equally be invoked in terms of oral or formal agreement executed by the Promoter/ developer such as booking application form/ formal letter/ allotment letter/ letter of intent/ memorandum of understanding, etc. capable of being construed as an agreement.

Can unregistered MoU be treated as agreement for sale and Section 18 of RERA be invoked? | Will provisions of RERA Act prevail over Arbitration and Conciliation Act, 1996? | Can delays in the granting of permissions/ sanctions from various competent authorities, litigations in the court be construed as force majeure? – Ashok Sayaji Dhatrak Vs. Rashmi Realty Builders Pvt. Ltd. and Ors. – Maharashtra REAT Read Post »

There is no express provision in RERA Act, 2016 by which the promoter is entitled to deduct amount on account of cancellation of booking by allottee or promoter – Rajeshwari Ramesh Pillai and Anr. Vs. Aishwarya Avant Builders LLP – Maharashtra REAT

Hon’ble Maharashtra REAT held that:

(i) Section 13(1) of RERA Act 2016 relates to no deposit or advance to be taken by promoter without first entering into agreement for sale.
(ii) There should be some reasonable logic while forfeiting the amount deposited by the allottees. There is nothing on record to show that because of cancellation of booking by allottees promoter has suffered damages or loss. This signifies that the conduct of the promoter to forfeit the entire amount without any justifiable reason is contrary to the object of RERA Act 2016.

There is no express provision in RERA Act, 2016 by which the promoter is entitled to deduct amount on account of cancellation of booking by allottee or promoter – Rajeshwari Ramesh Pillai and Anr. Vs. Aishwarya Avant Builders LLP – Maharashtra REAT Read Post »

A writ petition under Article 226 of the Constitution of India against a private entity is not maintainable – Swati Thakre Vs. The State of Madhya Pradesh and Ors. – Madhya Pradesh High Court

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A writ petition under Article 226 of the Constitution of India against a private entity is not maintainable – Swati Thakre Vs. The State of Madhya Pradesh and Ors. – Madhya Pradesh High Court Read Post »

Rule 22 of the CESTAT (Procedure) Rules, 1982 is not applicable in cases where the Resolution Plan has been approved under the IBC – Patanjali Foods Ltd. Vs. Commissioner of Customs – Karnataka High Court

Hon’ble Karnataka High Court held that:

(i) The Custom Dept. not having made any claim before the IRP during the CIRP process and the demand not having been part of the resolution plan, has stood extinguished and cannot be continued.
(ii) As per Rule 22 of CESTAT (Procedure) Rules, 1982, in the event a party to the appeal dies or is adjudicated as an insolvent or in the case of a company, is being wound up, the appeal would abate.
(iii) It is clear that Rule 22 of the CESTAT (Procedure) Rules, 1982 would not be attracted in a case where the resolution plan has been approved by the IBC.

Rule 22 of the CESTAT (Procedure) Rules, 1982 is not applicable in cases where the Resolution Plan has been approved under the IBC – Patanjali Foods Ltd. Vs. Commissioner of Customs – Karnataka High Court Read Post »

Whether non-compliance of Section 18(2) of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act) would vitiate an award passed? | Is the provision of Section 18 a mandatory provision? – Deccan Power Products Pvt. Ltd. Vs. Hyderabad Metro Water Supply and Sewarage Board and Ors. – Telangana High Court

Hon’ble Telangana High Court held:

(i) Because of non-compliance of the statutory requirement as is envisaged under Section 18, particularly Section 18(2) and Section 18(3), the award at the first instance if any passed would stand vitiated.
(ii) Section 18 being a mandatory provision and those provisions needs to be adhered to. Non-adherence of the requirement under Section 18, particularly Section 18(2) and Section 18(3), the award passed in contravention to the mandatory provisions becomes nullity and void ab initio.

Whether non-compliance of Section 18(2) of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act) would vitiate an award passed? | Is the provision of Section 18 a mandatory provision? – Deccan Power Products Pvt. Ltd. Vs. Hyderabad Metro Water Supply and Sewarage Board and Ors. – Telangana High Court Read Post »

The period of limitation to file an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of arbitrator is three years from the date of refusal to appoint the arbitrator or on expiry of thirty days from the date of service of notice – Shah & Company Vs. Jammu & Kashmir Power Development Corporation and Ors. – Jammu & Kashmir and Ladakh High Court

Hon’ble Jammu & Kashmir and Ladakh High Court held that keeping in view the ratio laid down by the Hon’ble Supreme Court in B and T AG v. Ministry of Defence (2023) ibclaw.in 73 SC and Arif Azim Co. Ltd. v. Aptech Ltd. (2024) ibclaw.in 80 SC, it is emphatically clear that the period of limitation to file an application under Section 11(6) seeking appointment of arbitrator is three years from the date of refusal to appoint the arbitrator or on expiry of thirty days from the date of service of notice.

The period of limitation to file an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of arbitrator is three years from the date of refusal to appoint the arbitrator or on expiry of thirty days from the date of service of notice – Shah & Company Vs. Jammu & Kashmir Power Development Corporation and Ors. – Jammu & Kashmir and Ladakh High Court Read Post »

Benefit of exclusion of period (under Section 4 of the Limitation Act) during which Court is closed is available only when application for setting aside the award under Section 34 of the Arbitration and Conciliation Act, 1996 is filed within “prescribed period of limitation” – National Highway Authority of India Vs. Muni Lal and Ors. – Himachal Pradesh High Court

Hon’ble Himachal Pradesh High Court held that benefit of exclusion of period during which Court is closed is available only when application for setting aside the award is filed within “prescribed period of limitation”. The benefit of exclusion it is not available in respect of the period which may be extended by the Court in exercise of its discretion under the proviso attached to Section 34(3) of the Arbitration Act.

Benefit of exclusion of period (under Section 4 of the Limitation Act) during which Court is closed is available only when application for setting aside the award under Section 34 of the Arbitration and Conciliation Act, 1996 is filed within “prescribed period of limitation” – National Highway Authority of India Vs. Muni Lal and Ors. – Himachal Pradesh High Court Read Post »

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