20/08/2024

Section 35 of Real Estate (Regulation and Development) Act, 2016 clearly enumerates the provisions of CPC that are applicable to the proceedings before RERA | As per the principles of expressio unius, all other provisions of CPC are excluded from applying to the proceedings before the RERA – Sumit Khanna and Anr. Vs. Kanchan Sunil Adani and Ors. – Himachal Pradesh High Court

Hon’ble Himachal Pradesh High Court referring sub-section (2) of Section 35 of the Real Estate (Regulation and Development) Act, 2016 held that according to the principles of expressio unius, it can conveniently be held that vide the expressio unius principle, the RERA clearly enumerates the provisions of CPC that are applicable to the proceedings before it and on the same principle, the Legislature is, therefore, deemed to have intentionally excluded all other provisions of CPC from applying to the proceedings before the RERA.

Section 35 of Real Estate (Regulation and Development) Act, 2016 clearly enumerates the provisions of CPC that are applicable to the proceedings before RERA | As per the principles of expressio unius, all other provisions of CPC are excluded from applying to the proceedings before the RERA – Sumit Khanna and Anr. Vs. Kanchan Sunil Adani and Ors. – Himachal Pradesh High Court Read Post »

DRT has no jurisdiction to look into the source of money deposited by Auction Purchaser or whether Bank has deposited taxes or not – Smt. Kunidena Lalitha Vs. State Bank of India and Anr. – DRAT Kolkata

Hon’ble DRAT Kolkata held that:

(i) Section 17 of the Act provides that any person including the borrower is entitled to raise his plea before the DRT for any grievance against the secured creditor. The aggrieved party may file an application u/s 17 of the Act challenging any of the actions of the secured creditor undertaken u/s 13(4) of the Act. It means that actions of the secured creditor undertaken u/s 13(4) of the Act can be challenged by any person or borrower aggrieved before the DRT. DRT have jurisdiction to decide the same in accordance with law.

(ii) In the present case burden lies upon the appellant to show that in spite of due diligence they could not brought the fact on record earlier. Due diligence has to be pleaded and proved by the appellant, but in the amendment application no source of information or knowledge regarding the proposed amendment is mentioned by the appellant. Proposed amendment relates to use of black-money in payment of sale price in the auction proceeding. The appellant has not pleaded a single word as to how he came no know about the fact or what is the source of information? Accordingly, in view of the law laid down by the Hon’ble Apex Court as referred to above proposed amendment is also not to be allowed.

DRT has no jurisdiction to look into the source of money deposited by Auction Purchaser or whether Bank has deposited taxes or not – Smt. Kunidena Lalitha Vs. State Bank of India and Anr. – DRAT Kolkata Read Post »

Assignee in Assignment Agreement clearly steppes into the shoes of Assignor and is fully entitled to exercise its right to initiate proceeding under Section 95 of IBC against the Personal Guarantor | Borrower or Guarantor has no locus or right to challenge any such assignment – Mr. Paresh Parekh Vs. Alchemist Asset Reconstruction Co. Ltd. and Anr. – NCLAT New Delhi

Hon’ble NCLAT held that Section 5(1) of the SARFAESI Act, 2002 begins with the non-obstante clause and is an enabling provision empowering an Asset Reconstruction Company to acquire financial assets in the manner provided therein. The present Assignment Agreement between the original lender/RBL and Respondent No.1 which being an asset reconstruction company fell within the ambit of Section 5(1)(b). Section 5(2) further contains a deeming clause which provides that an Asset Reconstruction Company on such acquisition of financial assets from the original lender will be deemed to be the lender and all the rights of such original lender shall vest in them. Once the deeming provision contained in Section 5(2) comes into play, the Asset Reconstruction Company shall be deemed to be Lender for all purposes. The legal position recognising the rights of an Asset Reconstruction Company to act in furtherance of assignment of debt as a valid legal right is no longer res integra. That being so, the borrower or the guarantor has no locus or right to challenge any such assignment.

Assignee in Assignment Agreement clearly steppes into the shoes of Assignor and is fully entitled to exercise its right to initiate proceeding under Section 95 of IBC against the Personal Guarantor | Borrower or Guarantor has no locus or right to challenge any such assignment – Mr. Paresh Parekh Vs. Alchemist Asset Reconstruction Co. Ltd. and Anr. – NCLAT New Delhi Read Post »

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