source Business standard
CS A Rengarajan
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File joint complaint to fast track your consumer case |
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TINESH BHASIN Arecent ruling of the Supreme Court will provide needed relief to people willacommon grievance, say, against builders delaying the delivery of flats. The apex court has ruled such flat buyers can get together and approach the National Consumer Disputes Redressal Commission (NCDRC) directly. Consumer activists say the ruling will haveafarreaching impact, beyond the real estate sector. According to the Consumer Protection Act, the amount inadispute decides the courtaconsumer may approach. If it is up to ~20 lakh,aconsumer has to file in the district forum. If the amount involved is ~20 lakh1 crore, the state forum. Only for amounts above ~ 1 crore mayaconsumer directly approach the NCDRC. In recent times, however, home buyers have got together to fight against builders. When many flat buyers get together, the amount involved rises above ~1 crore and they can therefore approach the NCDRC. But, whether such cases were entertained depended on the opinion of individual courts, say lawyers. Some judges allowed such cases to be filed if all the consumers hadacommon grievance. Others did not on technical grounds. The recent SC judgment, inacase involving Amrapali Sapphire Developers versus 43 flat buyers, which allowed consumers to approach the NCDRC, will leave no room for discretion. “Since the ruling will be enforceable on all courts in India, whether to allow joint filing will not depend on the view of individual courts,” says Arun Saxena, president, International Consumer Rights Protection Council. There areafew prerequisites for filingacase jointly. “Consumers need to formawelfare association and register it with the appropriate authority,” points out Nishit Dhruva, managing partner, MDP &Partners. The most common form this can take isasociety formed under the Societies Registration Act. The recent judgment says onlyarecognised body is eligible to fight such cases. Experts say filing similar cases separately makes the whole process tedious and inefficient. Joint filing of cases will also make it economical for consumers to fight legal battles, as they will be able to share the costs. According to advocateDVaradarajan, allowing people to go directly to the NCDRC will also mean faster resolution of cases. Earlier, the whole process tookalot of time as there was scope for the opposite party to file an appeal in the state forum and again in the National Commission. The ruling will have an impact even beyond the real estate sector. For instance, if the smoke emitted byafactory affects an entire locality, people from that locality will be able to come together and fileacase. More clarity is needed for those filingaclass action suit for common relief by coming together, says Dhruva. According to interpretation of the current laws, even if one consumer comes to the court and says that he is happy and has no grievance, the suit would fall through. The majority should not suffer because ofafew. The courts need to decide on the proportion of consumers that can seek relief even thoughafew might not have any grievance, he says. SC ruling allowing consumers to jointly file case in national consumer forum will also mean lower legal costs |Earlier, whetheragroup of consumers could fileajoint complaint in the NCDRC depended on the view of individual courts |NowaSupreme Court has ruled that they can do so |This will mean lower costs for individual consumers and faster justice |According to current laws, however, justafew consumers saying they are happy with the manufacturer can result in the case falling through. Clarity is needed on this STRENGTH IN NUMBERS |
Practising Company Secretary
Chennai
Mobile 93810 11200
CS A Rengarajan
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Nominee is not the undisputed owner |
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No legal heirship, court order or succession certificate required. Please circulate. Reference: http:// bit. ly/ 2mFJ9pI.” Have you received suchamessage on WhatsApp? It isaclassic example ofatechnically correct message that conveys the opposite of what was actually meant. It seems to suggest that the SC has decidedanominee will henceforth become the full owner of the flat and the legal heirs of the deceased members have no rights at all.Ihad covered the impact of this decision in my article ´The way withoutaWill´ carried in this paper on January 5, 2017. But many people wrote to me pointing to the above interpretation of the SC´s decision. Hence,Iam forced to write on this issue again. To recap briefly, the SC decision (Indrani Wahi versus Registrar of Societies and others) was in the context of the West Bengal Cooperative Societies Act, 1983. Similar Acts and somewhat similar provisions on nominations exist in every state. For example, in Maharashtra, we have the Maharashtra Cooperative Societies Act, 1960. The above decision does rule that “In this behalf, it is necessary to clarify that transfer of share or interest, based onanomination under Section 79 in favour of the nominee, is with reference to the concerned Cooperative Society, and is binding on the said society. The Cooperative Society has no option whatsoever, except to transfer the membership in the name of the nominee, in consonance with Sections 79 and 80 of the 1983 Act (read with Rules 127 and 128 of the 1987 Rules).” This seems to imply the nominee has full ownership rights over the flat. How mistaken that impression is becomes clear when you read what the court says next: “That would have no relevance to the issue of title between the inheritors or successors to the property of the deceased…”, and further states that “It shall, however, be open to the other members of the family (presently only the son of Biswa Ranjan Sengupta —Dhruba Jyoti Sengupta; we are informed that his mother —Parul Sengupta —has died) to pursue his case of succession or inheritance, if he is so advised, in consonance with the law”. This makes it clear the SC has only ruled the Society has no option but to transfer the shares in favour of the nominee. It has also made it clear that this does not make the nominee the undisputed owner of the flat. The legal heirs have full rights as heirs and can pursue their case under the law. The nominee will have to account to the legal heirs once their interest is upheld by the courts. All this makes leaving your immovable property to your heirs an expensive and disputeridden affair. Hence, in that article,Ihad requested state governments to amend the laws on the lines of the 2015 amendments to the Life Insurance Act that seems to provide beneficial interest to the nominee ofalife insurance policy. Similar amendments are required in corporate and banking laws to provide for beneficial interest to nominees. This will make it easier foracommon person to leave his wealth to the family member of his choice, without having to involve lawyers and without the risk of expensive legal disputes. The author isaSebiregistered investment advisor The court only ruled that the society must transfer flat shares to the nominee FRANKLY SPEAKING HARSH ROONGTA |