THE BOMBAY DYEING AND … VS ASHOK NARANG AND ANR
In this case, the Appellant, The Bombay Dyeing and Manufacturing Company Ltd was the builder-promoter whereas Mr. Ashok Narang and others were the allotees/buyers of the flats. It was agreed by the Parties that the possession would be delivered by 2017 at a 20:80 scheme consideration (20% initially and 80% at the time of delivery), in which the Respondents had already made payment of 20% in 2012-13 inclusive of tax and premium. The appellants failed to deliver the flats for possession on the stipulated time and extended it by 2 years. Thus, the Respondents filed a complaint u/s 31 of the Real Estate (Regulation and Development) Act, 2016 (“2016 Act”) before the Authority citing breach u/s 12 read with S. 18 of the 2016 Act seeking cancellation of the allotment and also a refund of the amount they had paid. The Authority did not pass any order regarding the refund stating that S. 12 did not apply retrospectively, and also that the cancellation should be done as per the allotment agreement. Further when appealed before the Appellate authority, it found that S. 12 of the 2016 Act had a retroactive operation and directed the respondent to refund with due interest and also ordered cancellation of the allotments. Consequently, the Appellants approached the Bombay High Court wherein the Appellant-counsel submitted that the provisions of the 2016 Act were prospective in operation and that the written agreement for sale was also absent due to which no liabilities could be imposed upon it as u/s 18. To this, the Respondent-counsel contended that the application of the 2016 Act to an ongoing project itself indicated that the provisions were quasi-retroactive in nature. Also, regarding the absence of a written agreement, it was argued that the Appellant could not be permitted to raise a new contention for the first time in the second appeal, thus it had waived the right to raise any such claims and that could not be allowed to approbate and then reprobate later on. The Court pointed out that no one should be made to wait indefinitely for delivery of possession and thereby held that there was a deficiency of service and disposed of the appeals with no order as to costs.
Citation : The Bombay Dyeing and … vs Ashok Narang and Anr., Decided by Bombay High Court on 30th August, 2021, available at : The Bombay Dyeing and … vs Ashok Narang and Anr, visited on 9th September 2021.
PUNIT JAIN VS M/S. IREO GRACE REALTECH PVT. LTD.
Mr. Punit Jain, the Complainant, filed a consumer complaint against Ireo Grace Realtech Pvt. Ltd. for making him sign a one-sided agreement concerning the sale of a 1483.28 sq. ft. apartment at 9200/ – per sq. ft. instead of the previously agreed rate of 8750/ – per sq. ft on 16.03.2013. The company also agreed to make the apartment available to the Complainant within 42 months of execution of the agreement 03.04.2014. The Agreement also mentioned a 180 days’ grace period. The Complainant made full payment of the agreed amount of 1,55,17,716/ – Rupees before filing the present complaint against the builder when it failed to complete the construction within the stipulated time period. The Counsel for the builder contended that the Complainant would not be considered as a ‘Consumer’ under Section 2(1)(d) of the Consumer Protection Act, 1986 as he had bought the apartment for a commercial purpose and had also made a similar booking in another project by the builder. It was also argued that there was an arbitration clause in the agreement signed by the complainant. The builder’s counsel further contended that the Complainant was bound by the terms of the agreement on the Basic Sale Price. The Consumer Disputes Redressal Forum held that the present agreement was a one-sided agreement and was an unfair contract. It was stated that the Developer could not compel the apartment buyers to be bound by the one-sided contractual terms contained in the Buyer’s Agreement. The court also directed the builder to pay interest @ 9% S.I. per annum from 27.11.2018 till the date of payment of the entire amount. The court also directed interest @ 12% S.I. p.a. should be paid in case of a default.
Citation: Punit Jain vs M/S. Ireo Grace Realtech Pvt. Ltd., Decided by The Consumer Disputes Redressal on 31st August, 2021, available at: Punit Jain vs M/S. Ireo Grace Realtech Pvt. Ltd., visited on 9th September, 2021.
KHATEMA FIBRES LTD. V. NEW INDIA ASSURANCE COMPANY LTD.
The Appellant, Khatema Fibres Ltd., took out a “Standard Fire and Social Perils” insurance policy from Respondent-Insurance Company New Assurance Co. Ltd. for a sum of approx. 42 crores from 7/5/2007 to 6/5/2008, but a fire broke out on its factory premises on 15/11/2007. The firm, M/s Adarsh Associates, appointed by the Respondent ascertained the value of loss as approx. 2 crores upon their investigation. The Appellants felt the assessment of was loss was approx. 13 crores, but the Insurance Company stated that it could give a maximum claim only up to the amount quoted by the firm. The Appellant filed a consumer complaint under Section 21 (a)(i) of the CPA, 1986 before the NCDRC seeking various types of compensation from the insurance company, for loss caused due to fire, financial stress, legal fees, and so on. The Commission allowed payment to the Appellant for 2 crores, which was original amount assessed by Respondents. The present case was an appeal under Section 23, where the Appellant contended that the net weight of the damaged material was not correct. The Respondents made the counter-argument that the surveyor was an expert at his field and did the assessment in a scientific manner. The Supreme Court observed that there were many discrepancies found by the surveyor with respect to documents submitted, wherein one document showed a certain amount of waste paper stock, and the other showed a huge increase in the stock. The Court agreed with the National Commission’s finding that the Appellant was not able to establish deficiency in service under Section 2(1)(g). Thus, the Court upheld the previous judgement because there was no arbitrariness or unjustness exercised by the Commission in granting claim to the extent of 2 crores.
Citation: Khatema Fibres Ltd. vs New India Assurance Company Ltd. & Anr., Decided by The Supreme Court on 28th September, 2021, available at: Khatema Fibres Ltd. v. New India Assurance Co. Ltd. (2021)/, last visited on 4th October, 2021.
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