Other Laws

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 »

Can a Real Estate Company purchased a flat for the purpose of residence of its Directors and Directors’ family be treated as a Consumer under the Consumer Protection Act, 2019? – Omkar Realtors and Developers Pvt. Ltd. Vs. Kushalraj Land Developers Pvt. Ltd. and Anr. – Supreme Court

Hon’ble Supreme Court held that the mere fact that the respondent-company is a real estate company, it does not mean that the flat was purchased by it for commercial purpose or for resale so as to earn profits. It is the appellant who is contending that the respondent is not a consumer and as such the complaint is not maintainable, therefore, the burden lies heavily upon it to lead evidence to prove that the respondent in purchasing the flat in question is indulging in real estate business.

Can a Real Estate Company purchased a flat for the purpose of residence of its Directors and Directors’ family be treated as a Consumer under the Consumer Protection Act, 2019? – Omkar Realtors and Developers Pvt. Ltd. Vs. Kushalraj Land Developers Pvt. Ltd. and Anr. – Supreme Court Read Post »

Flat Purchasers /Homebuyers are not entitled to continue to pursue prosecution of complaints under the RERA, 2016 and under Consumer Possession Act 1986 concurrently/ simultaneously – Ajay Vs. Lucina Land Development Ltd. – Maharashtra REAT

In this important judgment, Maharashtra REAT held that:

(i) Remedies sought under CP Act 1986 are additional one over and above the other remedies prayed for under RERA and that the availability of an alternate remedy is no bar/ embargo in entertaining a complaint under the CP Act 1986. Hence, there is no bar in entertaining and pursuing the said two sets of complaints filed before two forums under the Act of 2016 and also under CP Act till their final outcomes subject to the satisfaction of certain conditions as illustrated above with respect to the non-applicability of doctrine of election.
(ii) In this case, the reliefs prayed for in both the complaints filed under both the Acts are quite same and are of similar in nature. Moreover, the cause of action is also same, the doctrine of election is squarely applicable to the present appeals.
(iii) The flat purchasers are not entitled to continue to pursue prosecution of both the sets of the complaints filed under the RERA Act of 2016 and under CP Act, 1986 concurrently/simultaneously. It is for the appellants to elect only one out of these two available options to continue prosecution of the complaints filed under these two Acts and not under both. It is not in dispute that appellants have chosen not to withdraw their complaints filed under the Consumer Protection Act. Therefore, the captioned complaints filed under the RERA Act have become legally unsustainable.

Flat Purchasers /Homebuyers are not entitled to continue to pursue prosecution of complaints under the RERA, 2016 and under Consumer Possession Act 1986 concurrently/ simultaneously – Ajay Vs. Lucina Land Development Ltd. – Maharashtra REAT Read Post »

Can Resolution Professional/CoC revise maintenance fees and recovery of electricity dues from Allottees during the Real Estate Insolvency? | Whether payment of electricity charges being an essential service, such amount can be accounted towards CIRP costs and that the Corporate Debtor is not liable to pay the amount till the completion of the period of moratorium? – Sanskriti Allottee Welfare Association (Reg.) and Anr. Vs. Gaurav Katiyar RP Earthcon Universal Infratech Pvt. Ltd. and Anr. – NCLAT New Delhi

In this important judgment, Hon’ble NCLAT clarified following issues:

A. Is NCLAT/NCLT the competent forum to consider whether the association of allottees constituted or not?
B. Is it appropriate on the part of the RP to seek the approval of the CoC in the determination of maintenance fees and recovery of electricity dues?
C. Can after having been present Authorised Representative of allottees in the CoC meetings and exercised their voting rights, the allottees question the authority of the CoC to have made some business decisions?
D. Whether payment of electricity charges being an essential service, such amount can be accounted towards CIRP costs and that the Corporate Debtor is not liable to pay the amount till the completion of the period of moratorium

Can Resolution Professional/CoC revise maintenance fees and recovery of electricity dues from Allottees during the Real Estate Insolvency? | Whether payment of electricity charges being an essential service, such amount can be accounted towards CIRP costs and that the Corporate Debtor is not liable to pay the amount till the completion of the period of moratorium? – Sanskriti Allottee Welfare Association (Reg.) and Anr. Vs. Gaurav Katiyar RP Earthcon Universal Infratech Pvt. Ltd. and Anr. – NCLAT New Delhi Read Post »

Can CoC fix different eligibility criteria for Association of Allottees as compared to other Resolution Applicant? – Crown Business Park Tower A Buyers Association, Faridabad Vs. Atul Kansal and Ors. – NCLAT New Delhi

In this important judgment, Hon’ble NCLAT held that:

(i) Interference in the Resolution Plan by the Adjudicating Authority is permissible when the Resolution Plan violated the provisions of Section 30(2) and the Plan does not conform to requirements as referred to in Section 30(2).
(ii) Regulation 36A (4) of the CIRP Regulations provides that CoC is empowered to specify eligibility. The expression “specify the criteria for prospective resolution applicants”, cannot be read to mean that criteria for all prospective Resolution Applicants has to be same.
(iii) Criteria cannot be discriminatory but reasonable rational classification is not prohibited.

Can CoC fix different eligibility criteria for Association of Allottees as compared to other Resolution Applicant? – Crown Business Park Tower A Buyers Association, Faridabad Vs. Atul Kansal and Ors. – NCLAT New Delhi Read Post »

Whether Homebuyers who entered in a separate agreement for providing Monthly Assured Return are also required to meet threshold criteria as per second proviso to Section 7(1) of IBC – Rita Malhotra and Anr. Vs. Orris Infrastructure Pvt. Ltd. – NCLAT New Delhi

In this case, the Corporate Debtor had entered into an Agreement with the Appellants on 24.04.2010 (MOU) for providing Monthly Assured Return (MAR).

The Appellants submitted that the present application has not been filed for default by real estate developer under terms of allotment but for reasons of default under an independent and separate agreement executed between the two parties for MAR.

Hon’ble NCLAT held that:

(i) On a plain reading of the provisions contained in the definition clause under RERA Act, a commercial space/unit allottee is covered under the purview of ‘allottee’ under RERA Act.
(ii) Assured Returns Class of Creditors, they continue to belong to the substratum of ‘allottees’ and therefore continue to be governed by the threshold limit prescribed under second proviso to Section 7(1) of IBC.
(iii) The Appellants cannot be said to go out of the definition of ‘allottees’ merely because they are part of MAR plan or that they should be treated in a different category wherein they are not required to comply with second proviso to Section 7(1).

Whether Homebuyers who entered in a separate agreement for providing Monthly Assured Return are also required to meet threshold criteria as per second proviso to Section 7(1) of IBC – Rita Malhotra and Anr. Vs. Orris Infrastructure Pvt. Ltd. – NCLAT New Delhi Read Post »

Once SARFAESI proceeding have been initiated by Bank, the only remedy for Borrowers who are also homebuyers in this case, lies under Section 17 of the SARFAESI Act – Japneet Kaur Ghuman and Anr. Vs. Union of India and Ors. – Delhi High Court

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Once SARFAESI proceeding have been initiated by Bank, the only remedy for Borrowers who are also homebuyers in this case, lies under Section 17 of the SARFAESI Act – Japneet Kaur Ghuman and Anr. Vs. Union of India and Ors. – Delhi High Court Read Post »

Test of genuine Homebuyers v/s Speculative Homebuyers is relevant only at the stage for the admission of CIRP under Section 7 of the IBC – Everlike Real Estate & Developers Pvt. Ltd Vs. Mr. Mohit Goyal, CA RP of Aadi Best Consortium Pvt. Ltd. and Anr. – NCLAT New Delhi

Hon’ble NCLAT held that:

(i) The Code or the RERA Act, 2016 do not differentiate anywhere between the Homebuyers who purchase units for his own consumption or the Homebuyers or unit purchaser who purchase the multiple units for commercial purposes.
(ii) The issue regarding the genuine Homebuyers v/s Speculative Homebuyers is relevant only at the stage for the admission of CIRP under Section 7 of the Code.
(iii) It becomes clear that whether the homebuyer/ allottee is genuine homebuyer or genuine allottee or speculative homebuyers/ allottee but if he has paid the money for acquisition of such properties or given the advance, such allottee/ homebuyer shall be treated as Financial Creditor in terms of Section 5(8)(f) of the Code.
(iv) No individual homebuyers has any locus to challenge resolution plan if the Resolution Plan which has been approved by voting of more than 50% of voting shares of homebuyers as a class.

Test of genuine Homebuyers v/s Speculative Homebuyers is relevant only at the stage for the admission of CIRP under Section 7 of the IBC – Everlike Real Estate & Developers Pvt. Ltd Vs. Mr. Mohit Goyal, CA RP of Aadi Best Consortium Pvt. Ltd. and Anr. – NCLAT New Delhi Read Post »

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