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Supreme Court Transfer Case

By Team Legal Helpline India, November 3, 2021

Supreme court transfer case means the transfer of a case by Supreme Court from any court in India to another court of equal powers and jurisdiction. Under the Indian legal system, the Supreme Court has been conferred with power to direct transfer of any civil or criminal case from one State High Court to another State High Court or from a Court subordinate to another State High Court. For the Transfer of cases in supremecourt , if the Supreme Court, is satisfied  that in such cases involving the same or substantially the same questions of law are pending before it and one or more High Courts or before two or more High Courts and that such questions are substantial questions of general importance, may withdraw a case or cases pending before the High Court or High Courts and dispose of all such cases itself.  The Transfer of cases in supremecourt thus can be done under such circumstances based upon the facts of the particular case.

The process of Supreme court transfer case is initiated after filing of the transfer petition before the Supreme Court by the aggrieved party. The court after being satisfied about the facts and the grounds issues notice to the other party. The court thereafter decides the supreme court transfer case after hearing both the parties and after considering the entire facts and circumstances of the case. This is the general practice and procedure for transfer of cases in supremecourt which is followed by and large in most of the matters.

STAGES OF SUPREME COURT TRANSFER CASE:

  1. Transfer petition is filed for transfer of cases in supremecourt from one state to another state.
  2. The court scrutinizes the petition and the grounds seeking transfer of the case through the supreme court transfer case petition.
  3. Court issues notice to the other party before transfer of the case.
  4. Opposite party has the choice to contest the matter before the court in the supreme court transfer case.
  5. Supreme Court posts the matter for final hearing.
  6. The court finally passes the orders either transferring the case or rejecting the transfer petition.

GROUNDS FOR SUPREME COURT TANSFER CASE

  1. The party may claim or show that the case which is sought to be transferred will cause prejudice in that jurisdiction that the opposite party is very influential and will hamper fair proceedings or fair trial.
  2. The party may also alleged the threat to life during the proceedings.
  3. The financial aspects including the travelling time and expenses may also be included as a ground of the supreme court transfer case.
  4. It can be claimed or shown for the proposes of supreme court case transfer that the court lacks the territorial jurisdiction.
  5. The affected party may also claim that the cause of action of the dispute arose beyond the jurisdiction of the present court hence he is seeking the transfer of the case.
  6. Several other grounds of travelling, safety, security, economic viability are taken before the court based upon the facts and circumstances of the case.

 PROVISIONS FOR TRANSFER OF CASE BY SUPREME COURT OF INDIA:

Broadly the cases are either civil or criminal hence separate provisions under Code of Civil Procedure and Code of Criminal Procedure has been inserted for Supreme court transfer case.

The court can also exercise its original powers under Article 139 A of the Constitution of India or the extraordinary powers of writ under Article 32 of the Constitution of India for transfer of cases in supremecourt and order for the transfer of a case from one state to other. This power is however sparingly used for Supreme court transfer case as the original powers of Code of Civil Procedure and Code of Criminal Procedure are used by Supreme court transfer case.

In this regard we can easily say that the supreme court enjoys the absolute and wide powers Supreme court transfer case from one state to another state. There can be variety of reasons for the same and there can be variety of grounds for the transfer of the case from one state to other state.

TRANSFER OF CIVIL CASE:

Supreme Court has powers to transfer any civil case  from one state to another state to an equal and competent court. This power is prescribed under Section 25 of Code of Civil Procedure being the original powers of Supreme court transfer case. All types of civil cases including the original suit, appeal etc can be transferred by the Supreme Court from the court of one state to another court of other state. The grounds of the transfer of case from one state to another can be any of the grounds given above. Besides that, the Supreme Court has absolute powers in this regard and it can transfer any civil case from court of one state to the court of other state to meet the ends of justice or in the interest of justice. All types of eventualities for the transfer of cases in supremecourt are covered under such provisions.

The provisions of Section 25 of the Code of Civil Procedure are given as under:

Section 25.   Power of Supreme Court to transfer suits, etc.

1[25. Power of Supreme Court to transfer suits, etc.–(1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in another State.

(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.

(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it.

(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.

(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.

TRANSFER OF CRIMINAL CASE:

The Supreme court transfer case powers for a criminal case from one state to another state are prescribed under Section 406 of Code of Criminal Procedure. Code of Criminal Procedure Act, 1973. The powers to transfer a criminal case from one state as provided under the Code of Criminal Procedure are reproduced hereunder:

406.Power to Supreme Court to transfer cases and appeals

(1) Whenever it is made to appear to the Supreme Court that an order under this sections expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.

(2) The Supreme Court may act under this section only on the application of the Attorney-General of India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney-General of India or the Advocate-General of the State, be supported by affidavit or affirmation.

(3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case.

The provisions thus related to the transfer of the case by Supreme Court are very clear and original and several cases are transferred by the Supreme Court in accordance with these provisions. The category of case as filed in the Supreme Court is called the Transfer Petition civil or criminal depending upon the nature of the case.

Registration of FIR

By Team Legal Helpline India, October 22, 2021

FREE DOWNLOAD FORMAT OF FIR

Registration of FIR in India is governed by the provisions of Section 154 of the CrPC. It contemplates that whenever any report of cognizable offense is received to the police officer, he will register a FIR thereafter investigate the matter. The pure construction of law contemplates that the police officer has no choice then to register the FIR as and when the report of a cognizable offense is reported. Due to historical reasons and the interplay of various factors, the police is reluctant in Registration of FIR despite the report of cognizable offense is made. It has also been observed that the police very often resort to divert the complaint and prolong the registration of FIR due to various extraneous considerations. The law related to registration of FIR has been settled several times by the Supreme Court but there is not much improvement and the police still dodges the complainant at times for registration of FIR.

The issue related to the registration of FIR has been subject matter of various judgements and was finally settled by the landmark judgement of the Supreme Court of India in case titled as “Lalita Kumari v. Govt. of U.P” Writ Petition No.68/2008. Several important directions were issued with regard to the registration of FIR and several eventualities were discussed at length.

 The Supreme Court contemplated the following situations:

  • Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
  •  If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
  • If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
  • The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed.
  • The court also issued directions for action against the police officers who fail to register FIR despite the receipt of information disclosing the commission of a cognizable offence.
  • It was made clear by the court that the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
  • It was also clarified that in what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/ family disputes (b)Commercial offences (c) Medical negligence cases (d)Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution.
  •  While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
  •  Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

It is thus very clear that the courts are concerned about the registration of FIR under all circumstances without holding a trial of the veracity of the facts which may be true or may not be true at the stage of registration of the FIR.

REGISTRATION OF FIR BY COURT ORDERS:

It is also contemplated under the law that if the police refuses to register the FIR despite the report of a cognizable offense, the complainant has the choice to approach the courts. The complainant has to approach the court with an application under Section 156 (3) of the CrPC and seek direction from the concerned court of Magistrate for investigation. In the event of any direction being issued for investigation of the case, the police is bound to register the FIR and then investigate the matter.

Some cases, even the court refuses to issue a direction for registration of FIR on the facts so stated hence the complainant is given the choice to file a private complaint under Section 200 of CRPC and based on the same, the court of Magistrate may summon the accused. This is not a process of registration of FIR but a registration of the crime.

There is no fixed format of FIR but it should be like a statement of fact containing the specific details of the commission of crime giving the details of time, date, place of occurrence and the name with address of the accused or the criminal if known.

We have given a suggested format of FIR which is can be used after free download and modified accordingly.

Online Mutual Divorce Lawyer India

By Team Legal Helpline India, June 9, 2021

IMP: Services of expert Online Mutual Divorce Lawyer India for end-to-end services of mutual divorce at very reasonable costs and hassle-free work.

Now during the COVID-19, the Family Courts have made arrangements for hearing of the online divorce cases through virtual mode. The mutual divorce petition can be filed online by the parties after fulfilling the formalities and the matter is then listed before the court. The court forwards a virtual link to both the parties for hearing and the parties can join the court proceedings on the basis of the said link.

The online mutual divorce is then heard and decided by the court after accepting the statement of the parties made through the virtual link. The identification of the parties is also established by the court.

The husband and wife would require the services of highly qualified and expert Online Mutual Divorce lawyers India during the current time when one can not appear before the court physically.

Very important and crucial services of Online Mutual Divorce lawyer India.

For all legal services related to drafting, vetting and filing of the mutual divorce between husband and wife. Since all the services are online, it is very easy, cost effective and very quick.

How to write a Mutual Divorce Agreement?

SERVICES OF ONLINE MUTUAL DIVORCE LAWYER INDIA:

i) Legal advice on all matrimonial issues online or in person.

ii) Drafting of all matrimonial complaints, petitions online.

iii) Online drafting of mutual divorce agreement.

v) Drafting of the petition of both the motions to be filed before the family courts.

vi) Filing of online mutual divorce petition before court.

vii) Conducting the online hearing of the case before the Family Court.

viii) Getting the divorce decree and all other orders from the Family Court.

ix) Drafting and filing of the quashing of FIR petition before High Court on the basis of mutual compromise between the parties.

Legal advice on all issues of matrimonial disputes.

Advice on all matters pertaining to distribution of properties, claim and counter claims.

Handling of the issues arising out of the matrimonial disputes at various forums.

Filing and defending matters pertaining to guardianship before the Guardianship Courts.

Handling the cases under Domestic Violence Act before the court of magistrate.

Filing bail and anticipatory bail applications against the FIR registered with the police under CAW.

Quick and easy solutions of all matrimonial disputes.

Drafting of family settlements related to distribution of the property of a family.

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Online Mutual Divorce – Complete Guide

By Team Legal Helpline India, June 3, 2021

Online Mutual Divorce process explained with important tips in detail.  Expert services of Online Divorce Process Lawyer in India.

Online mutual divorce can now be filed in Family Court by the husband and wife through our team. It can be filed and handled now in any part of the country effectively by us.

We have a strong team of online divorce process lawyers in India who can provide the entire services of online mutual divorce effectively. The process initiated during the lockdown by the courts has now picked up and one finds a large number of online mutual divorces being filed.

Mutual divorce online is to be filed before the Family Court of the appropriate jurisdiction to be advised by the Online Divorce Process Lawyer in India. The parties are not required to be physically present before the court during the hearing of the online mutual divorce petition. The hearing of the online mutual divorce is done by the E court through the virtual model.

The entire process of online mutual divorce is being handled by our expert teams at various parts of the country and we are filing online mutual divorce in every part of the country irrespective of the location of the parties.

DOCUMENTS REQUIRED FOR ONLINE MUTUAL DIVORCE:

i) Proof of identify of the husband and wife viz Adhar, Voter I Card, Passport, OCI Card, Ration Card, Driving license or any other recognized document with photograph on it.

ii) The proof of address of husband and wife which can be any of the above documents or even a rent deed.

iii) Marriage Certificate, if registered marriage.

iv) Card of Marriage, if available.

v) Joint, photograph of the marriage, if available.

vi) Passport size photograph of husband and wife duly signed over.

vii) MOU or the agreement for divorce signed and executed between the parties.

STEPS FOR ONLINE MUTUAL DIVORCE:

Parties can contact any Online Divorce Process Lawyer in India for drafting and filing the online mutual divorce before the Family Court. Since it involves consideration of various aspects, the services of a very good divorce lawyer is required.

The Online Divorce Process Lawyer in India has to take into consideration the aspect of place of marriage of the parties as it would determine the jurisdiction of the Family Court where the online mutual divorce can be filed. He has to further consider the places where the parties have resided after their marriage and the present location of the parties. Another important aspect the distribution of the assets of the parties amicable including the immovable assets.

The Online Divorce Process Lawyer in India has to also take care of the aspect of custody and upbringing of the children, if they are minor.

After considering all these aspects from the point of view of provisions of law, the Online Divorce Process Lawyer in India has to proceed in the manner taking into consideration all other related factors. Since it is a very serious affair, every possible care is taken to comply with all mandatory legal provisions.

AGREEMENT FOR MUTUAL DIVORCE

Online Divorce Process Lawyer in India has to draft the memorandum of agreement for mutual divorce after taking the entire facts into consideration. He has to take care of the terms finalized between the parties and also seek the consensus of the parties.

The agreement for mutual divorce should contain all important points to be considered by the court. The agreement for mutual divorce should also contain all the legal points which stipulates the terms and conditions between the husband and wife regarding their separation.

CHILDREN: The agreement for mutual draft for online mutual divorce should contain the entire details of the children born out of the wedlock. If the children are minor then the issue of custody and the expenses of upbrining should be clearly mentioned.

PROPERTIES: The issue of properties between the parties is a bone of contention hence it needs to be clarified in very specific terms. The movable as well as immovable properties should be clearly distributed amongst the parties as per their agreement. The title and ownership should be clearly defined.

If any transfer of property document such as GPA, SPA, Sale Deed, Gift Deed is to be executed then, it should be mentioned clearly with cost, time, and place.

ALIMONY: The issue of alimony is to clearly settled and mentioned in the agreement for mutual divorce between the husband and wife. It should be clearly mentioned that the issue of permanent alimony has been dealth with and finally settled in all respects. The parties have no claim against each other after signing of the agreement for divorce.

PENDING LITIGATION: Details of entire pending litigaitons, complaints, cross complaints which are known or unknown needs to be mentioned clearly in all respects. It has to be mentioned that the complaints or cases would be withdrawn by the parties. If there is any FIR, the parties will get that quashed from High Court or finish the same in all respects.

STEPS INVOLVED:

The Online Divorce Process Lawyer in India will get the signatrues of the parties on the agreement for divorce and then prepare the joint petition to be filed before the Family Court. After getting the signatures of the parties and after annexing all documents, the Online Divorce Process Lawyer in India will file the online divorce petition as per the requirements of the Family Court. Now a days the scanned copy below 25 MB in PDF is being filed through the filing account of the advocate.

FIRST MOTION:

After filing of the first motion, the formalities of the same related to the listing are completed by the staff of the family court. The first motion is thereafter listed before the court for hearing.

On the given date, the parities alongwith the Online Divorce Process Lawyer in India join the proceedings through virtual link provided and make their statement before the court.

The court takes the formal queries and then orders for the acceptance of the statement of the parties.

The court thereafter orders for the acceptance of the stateemtnt of the parties and accepts the first motion of the online mutual divorce.

SECOND MOTION:

The second motion of the online mutual divorce is to be filed after the lapse of 6 months of the acceptance of the First Motion by the court and before the expiry of 18 months.

The Online Divorce Process Lawyer in India undertakes the drafting of the petition for second motion for online mutual divorce between the parties. The entire set of documents are filed again with the earlier statement recorded by the court in First motion.

The online mutual divorce petition is thereafter filed in the same manner and against listed before the family court.

The parties to the online mutual divorce join the proceedings of the second motion through the virtual link of the court on the given date and time.

The judge then takes the statement of both the parties with all formalities.

The petition is then accepted and the orders are passed by the family court on the online mutual divorce petition.

Once the orders are passed, a decree of divorce is prepared and the marriage of the parties is dissolved by a decree of divorce.

IMPORTANT TIPS:

Mutual divorce agreement is the most important document which should be prepared by the Online Divorce Process Lawyer in India first.

The issue of distribution of the entire properties should be dealt completely and clearly.

It should be clearly mentioned that the MOU is to be complied in toto without violation of any clause.

The period of 6 months as a cooling period is mandatory which can be waived off only in case of ongoing divorces in exceptional cases only.

ATTENTION: We have in-house teams for providing all services, mail us all your details for quick action of online mutual divorce before Family Court.

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Online Divorce Process Lawyer in India

By Team Legal Helpline India, June 1, 2021

Online Divorce Process Lawyer in India provides excellent online legal services for a mutual divorce between the parties. The lawyer seeks the entire details of the parties online and examines the same in-depth. After examination of the documents, the lawyer renders the advice and the steps involved in the process of online mutual divorce between the parties.

Online Mutual Divorce is now possible before the Family Courts hence it is possible for the parties to get their marriage dissolved through mutual divorce process. Since the proceedings are virtual and the entire filing is through the e-filing, the role of a divorce attorney becomes very important as he remotely handles the filing and grant of divorce between the parties.

IMPORTANT POINTS TO BE CONSIDERED BY THE ONLINE DIVORCE PROCESS LAWYER IN INDIA

i) The Place of marriage of the parties: This is very important aspect as it determines the location of the Family Court where the online Mutual Divorce petition  can be filed. Under the laws, the place of marriage creates the jurisdiction to file for online mutual divorce between the parties.

ii) The place of matrimonial home: Another important aspect the place of the matrimonial home of the parties. It is the place where the parties have resided after their marriage. In most cases, there are several places hence the online divorce process lawyer in India is required to examine this process in detail before determining the place where the online mutual divorce between the parties is to be filed.

iii) The present place of residence of parties: The place where parties are located is another aspect to be considered by the divorce lawyer so as to determine the jurisdiction of the court where the online mutual divorce between the parties can be filed.

In some cases, the parties are located at different places hence the jurisdiction of the court where the online mutual divorce petition is to be filed is to be examined by the divorce lawyer taking into consideration this important aspect in mind.

iv) The religion of the parties: This is another important aspect which determines the applicability of the law applicable on the parties for mutual divorce. If the parties are Hindu, Sikh, Jain, Bodh then the Hindu Marriage Act of 1956 is applicable on them and the petition for mutual divorce is filed under Section 13 of the Hindu Marriage Act. If the parties are Parsi, Christen then the Indian Divorce Act is attracted and the mutual divorce petition is filed under the said Act. In case the parties have different religion, the divorce is accordingly filed under the Indian Divorce Act.

v) Children of the parties: The details of the children to the parties is very important. The Online Divorce Process Lawyer in India has to consider all the aspects related to it and then advice the parties and then file the online petition for mutual divorce between them. If the children are minor then the issue of custody of the children is also to be taken into consideration before filing the petition for mutual divorce between the parties.

vi) The assets of the parties: The aspect of the asset of the parties is to be duly taken care as in most of the cases, the properties are in joint name of husband and wife which needs to be transferred in the name of any one of them or any special arrangement made between them before getting separated.

STEPS TO BE TAKEN BY THE INDIAN DIVORCE PROCESS LAWYER:

The parties are asked to forward their documents which are mainly the following:

Proof of Identity

Proof of Residence

Marriage Certificate, if available

Passport size photographs of both the parties

Marriage photograph if available

Marriage card if available

All the above and on the mutual terms and conditions between the parties, a Memorandum of Agreement for Divorce (MOU) is drafted by the online divorce lawyer in India. The said agreement for online mutual divorce is then forwarded to both parties online for their inputs. Once the parties agree to the MOU for the agreement for online mutual divorce, the next step is undertaken.

ONLINE MUTUAL DIVORCE PROCEEDINGS STAGES:

The petition for the First motion of the online mutual divorce is then drafted by the online divorce process lawyer in India. The draft is forwarded to both the parties who provide their inputs in the same. Based on the same, the petition along with the affidavit is signed by the parties.

The next step by the online divorce process lawyer in India is to file the said petition for mutual divorce online with all the documents.

The case is thereafter listed before the courts for appearance of the parties on a given date.

The online divorce process lawyer in India thereafter obtains the video link of the hearing and forwards the same to both the parties.

The parties join the virtual hearing before the court on the fixed date and time along with the lawyer.

The statement of the parties is recorded before the court and the online divorce process lawyer in India identifies them virtually.

The court accepts the First Motion and allows the online mutual divorce petition.

THE PROCEEDINGS OF THE SECOND MOTION:

The Second Motion of online mutual divorce is to be filed by the parties after six months and before 18 months of the recording of the statement before the Family court.

The entire process of drafting the Second Motion is completed and the petition is filed again after getting the signatures of the parties.

The case is again listed before the virtual court for hearing.

The online divorce process lawyer in India obtains the virtual link for hearing for the date fixed by the court and then forwards the same to both the parties.

The matter is listed before the Family Court on the fixed date and time.

Parties to the online mutual divorce appear before the court through the virtual link and make their statements.

Court accepts the statements of the parties to the online mutual divorce.

The court considers the entire facts and circumstances of the case and passes orders for grant of divorce to the parties on the basis of mutual consent.

The copy of the order and the decree of divorce is obtained by the divorce lawyer and then forwarded to the parties as the last stage.

The divorce proceedings are over and the parties are separated through the decree of divorce granted by the court.

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Lawyer for Money Recovery From Builder in India

By Team Legal Helpline India, May 23, 2021

Lawyer for Money Recovery From Builder in IndiaBrief write-up on the services of the lawyer for money recovery from the builder in India by our team of experts to ensure the foolproof process of money recovery from the builder.

The process of money recovery from the builder in India is now clear with the induction of two very important legislation which now ensures the foolproof system for recovery of money from the builder in India. We will discuss some of the options available to a Lawyer for Money recovery from the builder in India hereunder:

i) RERA proceedings

ii) NCLT proceedings

iii) Civil recovery suit

iv) Consumer Court complaint

v) Criminal complaint of cheating and forgery

vi) Complaint under 138 Negotiable Act

Let us discuss all the above said options one by one available to Lawyer for Money recovery from builder in India so that one can get a fair idea of the law and the process involved.

i) RERA PROCEEDINGS:

The central government has enacted Real Estate Regulation and Development Act according to which all the states have created RERA. It literally means Real Estate Regulatory Authority under which the state government has created a body named RERA to regulate real estate activities. However, the said act is applicable only on the projects which were completed after May 2016 and the plot size is more than 500 Square Meters and/or more than 8 units are being constructed.

For claiming back the money from the builder under RERA, Section 19 provides the power and Section 31 provides for the powers to the RERA to adjudicate the claim. Accordingly, the buyer or investor can initiate the process for recovery of his money from the builder if he so desires.

RERA has further empowered the investor to withdraw from the project at any point of time without any reason. More so if the builder has not acted properly, there is any delay in the project or there are other irregularities, the investor or the buyer has every reason to withdraw from the project and claim back his money.

The buyer can not only claim back the money, he is entitled to interest and damages depending upon the facts of the case.

No time limit is applicable for the RERA projects, but you can not claim the money from the builder for non RERA projects before the RERA or the project which were completed before implementation of RERA.

PROCESS TO BE ADOPTED BY LAWYER FOR MONEY RECOVERY FROM BUILDER IN INDIA UNDER RERA:

Issue a notice to the builder for refund or recovery of the amount due by clearly mentioning the principal amount, interest and the damages if applicable.

Notice should be issued through e mail and registered post or hand delivery against receipt against any denial at subsequent stage of the matter.

Institute the online complaint before RERA on the website of the state RERA concerned by quoting the RERA number of the project and giving all details therein.

Once the matter is decided by RERA, follow up with the authorities for recovery of the money finally in your account.

ii) NCLT PROCESS TO BE ADOPTED BY LAWYER FOR MONEY RECOVERY FROM BUILDER IN INDIA:

National Company Law Tribunal is a creation of recent time with very effective and clear provisions pertaining to claiming money from the defaulting builders.

Any  Lawyer for Money recovery from builder in India will first issue and notice of recovery against the builder thereby giving him a time of 24 days to pay back the money.

After the lapse of the specified period of 24 days, the claim petition as per the format of NCLT is filed and the same is either accepted or rejected within 14 days of filing.

The IBC resolution is passed and the builder is directed to pay back the money failing which the IBC orders for the take over or any such suitable order which ensures the refund of the payment of the buyer. The process is simple and easy.

The proceedings under NCLT can  be initiated by Lawyer for Money recovery from builder in India

 against a incorporated body i.e. a company or a LLP hence it has the limitations if the builder is a partnership firm or a proprietary firm.

iii) CIVIL RECOVERY SUIT:

The invoking of the civil recovery suit by a  Lawyer for Money recovery from the builder in India is the old and classic method, which is generally very clumsy, time-consuming, and uncertain as it involves several complicated processes.

In case the facts of the case are very clear and the amount has been admitted by the builder in specific terms on paper, then the process of recovery of money from the builder by a Lawyer for Money recovery from builder in India becomes very effective remedy.

The Lawyer for Money recovery from builder in India has to issue the legal notice of demand against the builder first and give him time to pay back the money.

If the builder defaults in refunding the money, the next step is to file a civil recovery suit by the Lawyer for Money recovery from builder in India.

Another demerit of the process is the payment of the court fees in advance by the claimant before the filing of the suit which can be ordered to be refunded by the builder by the court.

iv) CONSUMER COURT PROCEEDINGS:

The proceeding before consumer court is the best and most involved provision under which the Lawyer for Money recovery from the builder in India initiates proceedings for recovery of the money from the builder.

The consumer court proceedings are based upon the amount being claimed.

If the amount claimed is up to Rs-20 lakhs, then the Lawyer for Money recovery from the builder in India will file the complaint about the recovery of money from the builder before the District Consumer Disputes Redressal Forum.

The proceedings of the consumer court are simple and summary.

PROCESS BEFORE THE CONSUMER FORUM TO BE ADOPTED BY Lawyer for Money recovery from the builder in India

  • Issuance of notice to the builder either by the buyer or his lawyer.
  • Filing of complaint with all requisite documents before the Consumer Forum.
  • The Consumer Forum issues notice on the complaint filed by the buyer to the builder.
  • The builder is required to file his reply and documents if any.
  • The final order is passed by the Consumer Forum, directing the builder’s recovery to the buyer.
  • The buyer files an execution petition if the builder fails to deposit the money.
  • The Consumer Forum issues warrant execution or attachment if the builder fails to pay back the amount.

v) CRIMINAL COMPLAINT OF CHEATING AND FORGERY:

It has been observed that the builder very often indulges in the fabrication of documents and making several fake claims on the records related to the ownership, bank, sanction, etc. If the buyer finds that the builder is not the owner of the project, neither he has a valid title of the project, the Lawyer for Money recovery from the builder in India engaged by the buyer can initiate criminal proceedings against the builder. Criminal complaints against the builder can be filed to fabricate documents, criminal misappropriation of money, or impersonation.

The services of an expert Lawyer for Money recovery from the builder in India are required for the said services as it is highly specialized work and the builder can be booked under a criminal case on the basis of the criminal complaint lodged against him.

vi) COMPLAINT UNDER 138 NI ACT;

Several builders issue cheques in lieu of the return of money to the buyers. The said cheques very often are returned by the bankers of the builder unpaid due to several reasons. One of the main reasons is the insufficiency of funds in the account of the builder.

The Lawyer for Money recovery from the builder in India can on the basis of the instructions issued by the buyer can initiate the complaint proceedings under Section 138 of the Negotiable Instruments Act and take the builder to task for his act of issuing cheques without keeping the amount in the account.

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RERA law and projects – Full Features

By Team Legal Helpline India, May 12, 2021

RERA law and projectsA brief write up on RERA law and projects giving all important features of the new law by our legal service expert.

RERA stands for Real Estate Regulation and Development Act but it is popular as RERA because it means Real Estate Regulatory Authority. This is a central act brought by the Parliament in 2016 which became fully enforceable in all states in May 2017.

Since urban development is a central subject and land is a state subject, a balance has been kept by the central government by giving all the states to frame their own rules or pass their own acts. This has been done by many states and slowly RERA as a statutory body has been created in most of the states.

It’s a body of members nominated by the state government to regulate real estate in the state and to looks and enquire into any complaint against the real estate projects, builders, or developers.

They have powers to inquiry into the complaint and adjudicate the dispute and impose a penalty upon the builder if found doing anything in violation of RERA.

RERA applies to all projects above 500 Square meters or where more than 8 units are being constructed. It applies to all real estate projects of construction of housing, apartments, flats, villas, plots, or any other construction. It however does not apply to the projects which are completed before May 2016 or the redevelopment or renovation projects of the real state.

Important Features of Rera Law

i) Every state to create a regulatory body to regulate all real estate projects.

ii) No project to be sold without registration on the RERA website under any circumstances.

iii) All projects whether ongoing or new are required to be registered on the website of states RERA giving all details of the project with date of completion.

iv) All areas to be sold on the basis of carpet area which is defined under the RERA.

iv) Builder to maintain escrow account in which 70% of the money taken from buyers to be kept and all payments through the said account to be made to vendors on the certificate of the CA, engineers, architects only.

v) Builder or real estate developers to take only 10% as booking amount from the intending buyers, rest payments linked to construction progress.

v) Builder or developer to update about his project quarterly on the website or state RERA.

Vi) No change in the project plan by the builder without getting NOC from 60% of the buyers.

vii) The buyer has right to walk out the project on his own and claim the entire money he has paid with bank interest.

viii) If there is a delay of project, the buyer has right to claim his refund with interest and damages.

ix) Online complaint against the builders to the respective RERA website on which action is to be taken within 45 days.

x) Builder to give 5 years guarantee of the construction of the project for all structural defects, workmanship etc.

xi) Cancellation of the project by RERA if any information is found to be incorrect on verification.

xii) Blacklisting of the builder besides penalty based on project cost by the RERA. The builder can be imprisoned for up to three years, or have to pay the fine extended to 10% of the estimated cost of the real estate project, or both, if being non-compliant with the Act.  

PROCESS OF BUYING PROPERTY IN RERA PROJECT:

The intending buyer should first verify the RERA registration of the project on the website of the state where the project is located.

He should also verify the entire details of the land, the ownership etc.

The purchaser should also verify the financial status and history of the builder, promoter of the project after taking out the balance sheet from the site of the MCA.

Entire details of the project should also verified by the purchaser from the sanctioning authority, if required.

Advance of only 10% is payable under RERA to the builder by the intending purchaser.

The purchaser or should always verify the updating done by the builder on the website of RERA on quarterly basis and report any variation to the RERA immediately through their website.

E mail ID of the builder as given on the website or RERA at the time of registration of the project should be used by the purchaser for seeking any information from the builder.

The purchaser should also verify all the formats used by the builder which should be in consonance with the format prescribed under the RERA rules of the respective state and if any violation is being done by the builder, it should be reported to the RERA.

Benefits of RERA law and projects

RERA is a very beneficial legislation which has brought transparency, accountability and regulation in the real estate sector. It has empowered the buyers or investor in the real estate which will lead to growth of urbanization and development of real estate of the country.

Most of the activity is online hence any buyer or person located remotely can also take up the matter with the RERA without running around and without depending upon the mercy of the builder.

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What is a will?

By Team Legal Helpline India, April 11, 2021

What is a will? explained in very simple manner by legal expert.

Advocate contact number in Delhi is 011-23355388 for any other services related to the execution of a will, a challenge to a will, probate, and all other legal services.

Section 2(h) of The Indian Succession Act, 1925 defines a WILL. It reads as under:

(h) “Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

In common parlance, a will is an arrangement made by a deceased person during his lifetime for the distribution of his movable and immovable properties after his death. It is thus clear that a will is operative and can be enforced only after the death of the person executing it who is called the “testator”.

The person executing the will has full authority and power to alter, revoke or replace the will with a new will at any point of time as per his wishes.

He can write a new will superseding the existing will or issue a Codicil, clarifying the contents of the existing will. Under the Indian Succession Act, 1925, he has the absolute right during his lifetime to do whatever he wishes to do with his will. The will becomes final only after his death. The will can not be modified or changed in any manner after the death of the testator.

WRITING A WILL:

A will can be written by any person determining the distribution of his moveable as well as immovable properties after his death in accordance with his will. He can only mandate for the distribution of the self acquired properties under his will. He can not change the inheritance share in any manner through a will.

It is not necessary that a will should be in writing. One can make it oral as well. It is however good to write down a will in presence of at least two witnesses. It is also good to get the will registered to give it more sanctity and authenticity. Under the Indian laws, it is not mandatory to get the will registered but most of the people get the will registered to avoid any controversy after their death.

PROBATE OF A WILL:

Under the definition of Indian Succession Act, 1925, a probate is a letter of administration issued by the court with an attested copy of the will.  The legal provisions for a Probate is given under Section 217 of the Indian Succession Act, 1925.

The LRs of the testator or the deceased or the beneficiaries of the will is required to apply for Probate before the probate court. The court issues a notice to all the LRs of the deceased along with a public notice in the newspaper. Any person being affected by the will in any manner can file his objections to the grant of Probate by the court. The court on the basis of the authentication of the will and after determining all the  objections raised issues the Probate or the Letter of Administration which mandates the distribution of the properties of the deceased amongst the beneficiaries.

AMENDMENTS AND CHANGES IN A WILL:

The will can be amended by the person executing the will at any point in time as per his wishes. Besides that, the will stands changed under the following circumstances as well.

i) After born child: If a child is after born of the will, the same will definitely change the arrangements made in the will. Any court dealing with the distribution of the property or execution of the will can take note of the aforesaid fact and change the arrangements of the will. The courts can also invalidate the will on the basis of the same.

 The court also takes into consideration the various aspects of the matter and see whether the after born child has a right in the property of the deceased or not. The court may also see and determine whether the testator had taken the afterbirth of the child at any stage and what was the period after the creation of the will and the birth of the new child and what arrangements have been made to distribute the wealth to the after born child by the testator.

It is generally seen that the after born child’s rights is also taken care by the court when dealing with such a situation.

ii) Ex-Spouses: If the husband creates a will for his wife and there is a divorce. In that event the will can be cancelled by the court or a different arrangement can be made by the court keeping in view the changes in the circumstances.

iii) Illegal subject matter: Court will automatically cancel the which contemplates any illegal act.   

CANCELLATION OF THE WILL AFTER THE DEATH OF THE TESTATOR:

 During the life time of the testator, the will can be only cancelled or altered by him. The will can however be cancelled due to some of the grounds which are:

i) Duress/undue influence: If the will has been executed under duress, force or undue influence then it can be cancelled even after the death of the person. 

ii) Insanity: If it is proved that the person executing the will was insane at the time of execution of the will, then the will can be cancelled after the dealth of the said person. 

iii) Fraud: If it comes to the notice of the court that some fraud has been played with the testator and the will is a result of some fraud then also the will can be cancelled. In case it is proved that the testator was not aware of the contents of the will and was made to sign , then also the will can be cancelled as a result of fraud.

iii) An after-dated will: If there are two wills and the will with the most recent date does not mention the cancelation of the first will, the will with the earliest date overrides the second. The second will be declared invalid and can be cancelled by the court.

iv) Age: If it comes to the knowledge that the person executing the will was below 18 years, then also the will can be declared invalid. 

WHAT IS A CODICIL?

A codicil is an amendment by way of any addition or changes to a previously executed will. When a testator wishes to make changes to a will without altogether canceling the previous one, adding a codicil may be the easier option.

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HOW TO FILE A CONSUMER CASE?

By Team Legal Helpline India, February 12, 2021

Consumer case is filed before the Consumer Forum at District if the value of the goods and services is below 20 Lakhs. If it is between 20 Lakhs to 2 Crores, then the consumer case is filed in the State Consumer Commission.

If the value of the goods and services is above 2 Crores, then the consumer case is filed before the National Consumer Disputes Redressal Commission or NCDRC as we call it.

WHO CAN FILE A CONSUMER CASE?

Any person who has paid for some goods or services and there is a deficiency in the said goods and services can file a consumer case. Before filing the consumer case, the consumer has to give notice to the seller of the goods and services with all details of the deficiency of the goods and services.

If the notice of the consumer is not complied with and the goods or services are not rectified or returned, then he can file the consumer case before the consumer court based on the value of the goods and services.

THE FORMAT OF CONSUMER NOTICE:

There is no format of a consumer notice prescribed however under general parlance, the consumer notice should contain the full particulars of the goods and services purchased, the price paid, the date of purchase. The proof of purchase of the said goods and services should be attached with the details of the deficiency as being faced by the consumer.

It is better to send the notice to the main company and its reseller, the dealer from whom the goods and services are purchased.

The notice should be sent, by all means, email, by hand, registered post if possible so that the seller or the service provider may not deny the receipt of the notice at any stage subsequently.

A reasonable period of one week, two weeks, based on the nature of goods or services should be given in the notice for rectifying or replacing the same and the problems faced by the consumer.

Download format of consumer notice here

FORMAT OF THE CONSUMER COMPLAINT:

The format of consumer complaint is not prescribed under The Consumer Protection Act, 1986 to keep it easy for the common man. The complaint can be in any format giving details of the deficiency. It should be clearly written or typed on paper. The name and address of the complainant, as well as the seller, should be given with full particulars.

The details of the goods and services so purchased should also be given with specific details with the date and value.

The chain of events leading to the deficiency of services from the date of the problem should be given in a chronological manner to trace the origin of the dispute.

All supportive documents such as bills, invoices, warranty/guarantee cards, etc should be attached.

The documents showing attempts to redressal the problem should also be attached. If any notice has been sent, the copy with the postal receipt is attached. If any email, words app, SMS message, or complaint on the website is made, it should also be printed and attached showing the details of the sender and the receipt.

The problem or dispute related to deficiency should be specifically given with all details so as to ascertain the real deficiency of services.

In the last, the prayer for repair/replacement of the goods or services or refund should be made specifically with a prayer for the cost of the litigation and compensation commensurate with the loss of value of money, harassment should be claimed.

The complaint should be signed on all pages and all documents being attached should be attested duly with signatures of the complainant by writing “True Copy”.

Download format of consumer complaint.

PROCESS OF LODGING THE COMPLAINT

The process for lodging the complaint is different for the District Forum, State Forum, and the National Forum hence one needs to follow the same.

District Forum, the complaint with all annexures and documents with the requisite fees by way of Pay Order,  duly signed is filed in duplicate copy with a file cover, then listed for hearing before the court.

The complaint before State Forum is filed with double space typed copies of the complaint, documents, and the requisite fees in two copies with file covers.

The complaint called, the Original Application is filed before the National Consumer Disputes Redressal Commission in five sets with a proper index describing all pages and page numbers with the fees as prescribed and applicable.

PROCESS OF HEARING:

The complaints are listed before the courts for hearing and based on which the other party is asked to submit their reply and then the final order is passed based on all pleadings, documents, and pieces of evidence if any.

During the hearing of the complaint, the members of the forum or commission who are well versed with the latest law quickly pick up the issue in dispute and decided the matter based on entire facts.

EXECUTION OF THE ORDERS OF CONSUMER COURT:

Once the final order is passed by the consumer court, the aggrieved party has a right to agitate the said order in appeal before the next higher forum. In case the case is finally decided and the aggrieved party does not file any appeal then the order is to be executed by the consumer.

The provisions of execution of the orders of the consumer court are under Section 25 of the Consumer Protection Act, 1986.

The beneficiary or the consumer is required to file an execution application after one month before the court has passed the order. The notice of the execution is served on the seller or the service provider and then execution is ordered.

The consumer courts have ample powers under Section 27 of The Consumer Protection Act, 1986 to impose a penalty which may be imprisonment. The seller or the service provider is bound by such orders as the execution order is executed by the police in case of default.

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What is Extraordinary Writ Jurisdiction For PIL In India?

By Team Legal Helpline India, December 10, 2020

Writ Jurisdiction For PIL In India – Extraordinary writ jurisdiction is above the ordinary powers of the Supreme Court and High Court hence named as extraordinary powers.

All other legal provisions to approach the Supreme Court under the law such as appeal, revision, reference, etc. are called the ordinary powers of the court but the writ powers are named as extraordinary powers of the court.

The writ is a highly prerogative and effective power of the courts to issue directions to the Government on any irregularity, inactivity, unconstitutionality, arbitrariness.

The extraordinary writ jurisdiction is however not available against a private person or a body except in the case of a writ of Habeas Corpus only. The extraordinary writ jurisdiction is available only against any action of the government.

Under the exercise of the extra ordinary writ jurisdiction, the Supreme Court and High Court can issue writs against inactivity by the Government or misuse of the powers by any authority. The extra ordinary writ jurisdiction is also exercised for the judicial review of the orders of the public authorities.

The grounds on which the extraordinary writ jurisdiction can be exercised are well defined and can only be used for the scrutiny of any order on the grounds of perversity, patent illegality, irrationality, want of power to make the decision, and procedural irregularity. Besides these parameters, the administrative decisions are not interfered with, in the exercise of the extraordinary writ jurisdiction.

EXTRAORDINARY POWERS OF WRIT:

Writ petition before Supreme Court of India is filed under Article 32 of the Constitution of India which reads as under:

“32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”

Writ before High Court is filed under Article 226 of the Constitution of India which reads as under:

“Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto, and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause ( 2 ) of Article 32.”

DIFFERENCE OF POWERS UNDER 32 AND 226

The provisions of Article 32 and Article 226 are parallel and have equal importance but in practice, they differ. Writ before Supreme Court of India can be filed only in case when the petitioner cannot approach the High Court or the effect of the prayer if granted shall be on the entire country whereas the writ before High Court under Article 226 of the Constitution of India can be filed when the relief is mainly centered to the particular state.

This rule does not apply strictly as several factors such as the location of the parties, the origin of the cause of action are also very important determinants.

In practice it has been noticed that Supreme Court asks the petitioner to approach the High Court first unless if it finds that the relief has a wider territorial ramifications, it entertains the same. The outcome of the writ or the grant of the prayer are practically the same hence one has to keep in mind the abovesaid facts while invoking the extra ordinary powers of the court.

The powers of High Court under Article 226 are wider as compared to the powers of the Supreme Court under Article 32 of the Constitution of India. High Court has jurisdiction not only to grant relief for the enforcement of fundamental rights but also for “any other purpose” which would include the enforcement of public duties by public bodies.

The words any other purpose thus widens the jurisdiction of the High Court wider than Supreme Court which is circumscribed by the wordings of Article 32 given above.

WHAT ARE WRITS:

We all know about the extraordinary writ jurisdiction of the Supreme Court and High Court are by way of five types of writs as described under the Constitution of India. The said writs as described are as under:

  • Mandamus
  • Certiorari
  • Prohibition
  • Quo Waranto
  • Habeas Corpus

WHAT IS EXTRAORDINARY WRIT JURISDICTION FOR PIL IN INDIA?

If we examine that what is extraordinary writ jurisdiction for PIL in India, we find that the Supreme Court and High Court have widened the scope of the extraordinary writ jurisdiction vide its various orders from time to time. For upholding the rule of law and for ensuring equitable justice to all, the courts have come to the rescue of the common man or public at large at times. While examining what is extraordinary writ jurisdiction for PIL in India, we also find that wide interpretation of the definition of Article 32 and Article 226 of the Constitution of India has already been given by the courts.

Under the exercise of its extraordinary writ jurisdiction for PIL in India, the courts have gone to the extent of allowing the locus standi of any socially conscious person to file a petition on behalf of others or to raise issues of public interest by way of a PIL.

The court has taken the class view of the matters and has issued directions at times to the government on such issues. The courts have gone further in the exercise of their extraordinary powers to take suo moto cognizance of the various irregularities and issuing directions. In exercise of the extraordinary jurisdiction, the courts have also treated letter petitions and issued directions on the same at the time.

It is thus clear that the courts are very clear on what is extra ordinary writ jurisdiction for PIL in India.

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