Signatures on blank documents could land you in Jail

Signatures on blank documents?

Many a times in property related transactions property dealer makes you sign on certain blank papers to do deal with prospective buyers of the property they do sweet talks and get your signatures on blank documents to be used at later stages of transaction.

If your property dealer is honest then those documents will be used to honor the deal else will lead to litigation and eventually will land you up in jail also.

Modus operandi-How the documents can be misused

If you are putting signatures on multiple documents then these documents can be used as cash receipt and can be used as agreement to sell of a property which you are intending to sell. Now if one agreement to sell and receipts are there with one person then a civil case of specific performance that is to sell the property at very low rate to intended purchaser or a suit of recovery is maintainable based on receipts in civil court.

Now if two agreement to sell and two receipts are there with two different persons with respect to same property the a criminal case of fraud is made out in such cases.

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How to avoid signatures on blank documents

Insist full printed document with no blank spaces.

Take one of your witness for attestation of document.

Do not leave any space between your signatures and printed document.

Have a photocopy of whatever you have signed.

What to do if you issue blank documents to someone

Issue immediately a legal notice to other party who has taken your signatures on blank papers so you have proof.

Issue a public notice in leading newspaper so that any third party may not be able to misuse it.

File a case mandatory injunction for delivery of documents.

Stay safe and be very careful when putting signatures

 

 

How to file Builder Complaint under RERA?

How to file Builder Complaint under RERA?

About RERA

RERA is Real Estate Regulation Act-2016 the act was passed with an objective to regulate real estate sector in India. Real estate sector contributes to 9% GDP and is 2nd highest employment generator after Agriculture. There was a need to regulate the sector as there was huge number of builders who have defaulted in their commitment of giving possession of flat to allotees. The real estate scam in India is apparent and need to regulate builders was important an then there are one sided agreements and cheating done by builders

About 67% of projects in Delhi/NCR are delayed by more than 2 Years.

The act has a provision of mandatory registration of Builders and real estate agents and establishment of real estate regulatory authority to look into the matters related to complaint against builders.

A Builder complaint can be lodged in RERA under Section 31 of RERA Act.

SUBMIT YOUR COMPLAINT-HERE

 

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Builder Complaint Before Real Estate Regulatory Authority

Every State in India has RERA and under RERA builder projects are registered there are stringent provisions under which the builder has to disclose details of the project and file sanction plans,completion dates etc before he could even do marketing of the project. There are strict penalty clauses in the act with regards to non-registration of the projects.

Under Section 31 an allotee can approach RERA and can file builder complaint under RERA act. The format of complaint differ from state to state. Here we will evaluating RERA forums of Delhi and NCR.

 

RERA in Delhi

Delhi Rera has interim Regulatory Authority situated at Vikas Minar ITO

Complete Address-:

14th Floor Vikas Minar, ITO, New Delhi

 The webpage of Delhi RERA is http://dda.org.in/rera/

They have online complaint link http://dda.org.in/rera/EncroachDataUpload.aspx

However it is advisible to visit and file complaint under section 31 of RERA act against builders or rela estate agents in Delhi.

RERA in Haryana

In Haryana two RERA authorities are there one in Panchkula and

Haryana RERA Office Address

Real Estate Regulatory Authority Haryana
Executive Officer, RERA, HUDA Complex (Central Block),
Sec-6, Panchkula.
Phone: +91 172-2583132
E-Mail: [email protected]

Click here to download notification

RERA in Gurgaon

The Gurgaon RERA is situated at make shift office PWD Guest house

Haryana Real Estate Regulatory Authority (H-Rera) will be finally set up in Gurugram from February 1, officials said.

The temporary office will start functioning out of the public works department (PWD) guest house on Old Railway Road near the Gurugram police commissionerate. However, the permanent office will come up in Sector 44 six months later.

RERA in Uttar Pradesh

UP Rera has a proper website and a link to lodge complaint

Website http://www.up-rera.in/index

Address

6 J.C.BOSE MARG, LALBAGH,LUCKNOW, Uttar Pradesh

E-mail: [email protected]

Interest and Compensation under RERA

The authority has wide powers for redressal of complaint under RERA hera are some of recent News of decisions by RERA

H-Rera fines Gurugram builder 30 lakh for advertising project without registration

“The authority is of the view that Krisumi Corporation has violated the provisions by publishing the advertisement in the newspapers as well as on the website without getting prior registration of the project from the Haryana Real Estate Regulatory Authority, Gurugram in whose jurisdiction the said project falls and thereby committed the violation of Section 3 (1) of the Act and rendered themselves for action under Section 59 (1) of the ibid Act,” H-Rera chairman Khandelwal observed in the detailed order. Directing the company to pay Rs 30 lakh as penalty for the violations, the authority further observed that such violation would not be allowed.

Source: https://timesofindia.indiatimes.com/city/chandigarh/h-rera-fines-gurugram-builder-30-lakh-for-advertising-project-without-registration/articleshow/63497315.cms

MahaRERA imposes Rs 50 lakh fine on Piramal Realty

Moneycontrol.com06-Apr-2018
“Section 11 (2) of RERA states that the advertisement or prospectus issued or published by the promoter shall mention prominently the website address of the Authority, wherein all details of the registered project have been entered and include the registration number obtained from the Authority and such other matters …

RERA warns builders of action for late registration

Daily News & Analysis16-Jul-2017
We can even take suo motu action against builders who fail to register their projects after the deadline of July 31, on mere intimation about the same,” said Vasant Prabhu, secretary, Maha RERA. “However, we are expecting all the builders to register their projects within the deadline or else we will fine the …

RERA to Mumbai builder: Compensate buyers for delay in giving …

Hindustan Times31-Mar-2018
The Maharashtra Real Estate Regulatory Authority (MahaRERA) in its recent order has rapped a builder who violated construction rules and tried to put the blame of delay in possession of a flat on government agencies. The order also provided relief to homebuyers who were given possession of their …

MahaRera directs builder to refund cash component over delay in …

Times of India20-Mar-2018
MUMBAI: Maharashtra Real Estate and Regulatory Authority (RERA) recently directed a builder to repay with interest Rs 25 lakh including a cash amount of … The Rera Member said that grounds of delay given by the builder, could be treated as mitigating factors to refuse buyer’s claim for compensation.
 
Advocate Nitish Banka
9891549997

 

 

How much compensation under RERA?

RERA was enacted for quick redressal of complaints against the builders but compensation under RERA is a concern for many buyers.

In a bid to protect the interest of home buyers as well as weed out non-serious and unscrupulous players from the market, the Real Estate (Regulation and Development) Act, 2016 (RERA) has proposed heavy penalties on builders who will henceforth either delay their projects or won’t comply with RERA norms.

compensation under RERA

For instance, RERA recommends imprisonment for a term which may extend up to three years, or fine which may extend up to 10% of the estimated cost of the real estate project, or both, in case of non-compliance with the Act. Moreover, in case of any structural defects arising within five years of handing over the possession of project to buyers, developers will be liable to rectify such defects without further charge.

Under Section 18 of the Act there are two cases under which the builder is liable to return the money of the buyer.

One case is if builder is unable to give possession as per agreement or discontinuous his business then the builder is liable to pay interest including compensation. What section 18 contemplates that there is no separate compensation awarded to the buyer the interest component includes compensation. In case buyer opts for possession then if there is delay in possession then the buyer will get interest of delay.

Compensation under RERA is also there in section 18(2) and 18(3) in which but 18(2) talks about defect in title of land the buyer will be entitled to compensation and under 18(3) also any other violation execept mentioned above.

How much of interest rate?

Many states fixed the rate of interest payable by the promoter to the allottee or by the allottee to the promoter, as the State Bank of India highest Marginal Cost of Lending Rate plus two percent.

The interest percentage and the compensation amount (to be mentioned in the agreement of sale at the time of booking) in the case of any default could differ state-wise. Maroo says, “The state governments are vested with the powers to fix the rate.

At present, as SBI’s MCLR is 8%, developers will have to pay 10% interest on the paid amount to the buyers. At the same time, buyers will also pay the same interest at 10% on delayed payment of their dues and not the penal rates of 12% to 18% as mentioned in the sales agreement.

Adv. Nitish Banka

9891549997

How to get Mutual Consent Divorce?

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Mutual consent Divorce Procedure and complete guide

What is Mutual Consent Divorce?

Mutual consent divorce is a process by which martial status of a married couple comes to an end. This is one of a way to get divorce and most easiest form compared to other forms like Divorce by Desertion, cruelty, Adultery etc. This mode of divorce is normally called uncontested form of divorce and is envisaged in Section 13B(1) and 13B(2) of Hindu Marraige Act 1955. This form is commonly known as first motion and second motion divorce petition both petitions separated by 6 months period.

Procedure to get Mutual Consent Divorce

Here are some of the requirements of getting divorce by mutual consent

  1. Mutual consent

As the name suggest Mutual consent divorce first requirement is that there must be a mutual consent between the couples. That means all issues between them like custody of children, maintenance, alimony have been resolved between them and only they intend is to get a divorce only. There is also a separation period between the couple of not less than one year. the divorce by mutual consent

How to come to a mutual consent

The husband and wife sit together either with the help of close relatives, lawyers or in mediation. They first decide custody and visitation rights of children and their custody normally custody of children goes and decided mutually in favor of wife and husband do get visitation rights if this is decided then they proceed ahead with issues related to maintenance and alimony to wife. Normally husband agree on lump sum and one time  payment of fixed amount in favor of wife and wife on the other hand will not demand any maintenance or alimony in future. only when all the above issues are resolved the mutual consent divorce is possible.

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Mutual consent Divorce

2. Preparation of Mutual consent divorce agreement

After oral discussion its now time to get it on paper here at this stage mutual consent agreement is prepared and which is a detailed documents of whatever has been agreed between the couples they are bound by it. the mutual consent agreement has to be notarized and signed in front of notary public.

3.  List of documents for mutual consent Divorce

  1. Petition of mutual consent divorce both motions along with waiver of 6 months cooling off application in case you wish to waive off 6 months waiting period between two motions. if other spouse is in other country then power of attorney of other spouse.
  2. 4-5 recent photographs to be pasted on petition and agreement.
  3. Proof of marriage which includes either Marriage card with marriage photographs or marriage registration certificate with marriage photographs.
  4.  Id card with address proof

Note: you must carry originals at time of court hearing.

4. Court Hearings

At the time of court hearing you must reach on time and all originals must be carried by you at the time of hearing. Once your matter name is called you must be ready to answer questions put up be judge.

  1. Common questions like date of marriage and separation?
  2. custody of children?
  3. Consent is without any coercion or undue influence?

After basic questions the couple move ahead for verification of original document and hearing is concluded once they sigh on their respective statements.

Conclusion of Mutual consent divorce Proceedings

After the conclusion of both first and second motion court hearings the court will prepare a decree of divorce which is a formal document of divorce and officially couples are separated by decree of divorce and process is concluded.

By Adv. Nitish Banka

9891549997

Advocate

Nitish Banka, a Member of Bar Council of India is practicing in the field of Matrimonial, Civil and Criminal law as well as corporate legal consultant to various firms.  

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Courts cannot grant stay of trial proceedings more than 6 months-Supreme Court

The Supreme Court on Wednesday directed that the stay in trials, in both civil and criminal cases, must not exceed beyond six months unless extended in exceptional circumstances. “We … direct that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order, such stay is extended”, said the bench of Justice Adarsh Kumar Goel and Justice Navin Sinha,

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“The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized,” the bench added. The apex court also ruled that the lower courts could proceed after a six month period. This, the court observed, will prevent the accused from dragging the trial further.

The court further added that all the pending cases in connection with the Prevention of Corruption Act or all other civil or criminal cases, “stay will automatically lapse after six months from today unless extended by a speaking order on above parameters.” The court believed that a stay in the trials or prolonged trials often results in frustrated victims.

“It is well accepted that delay in a criminal trial, particularly in the PC Act cases, has a deleterious effect on the administration of justice in which the society has a vital interest. Delay in trial affects the faith in rule of law and efficacy of the legal system. It affects social welfare and development,” it said.

“Even in civil or tax cases it has been laid down that power to grant stay has to be exercised with restraint. Mere prima facie case is not enough. The party seeking the stay must be put to terms and the stay should not be incentive to delay. The order granting a stay must show application of mind. The power to grant a stay is coupled with accountability,” the bench added.

The court asked the high courts to issue instructions to this effect and monitor the same so that civil or criminal proceedings do not remain pending for unduly period at the trial stage.

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Can you sell your property 2 times??

What is agreement to sale ?

An agreement to sale always precedes the process of actual execution of the sale deed. An agreement to sale is a very important stage of the whole process. An agreement to sell is an important document in the process of sale and purchase of property. This agreement contains the terms and conditions agreed upon between the parties. It further binds them too. An agreement to sell is the basic document on which a conveyance deed is drafted. It is always advisable to have an agreement to sell in writing.

Two agreements to sale

What if there are two agreements to sale and no execution of sale deed as such? In such cases, a very famous doctrine, ie Doctrine of priority in Property Law is applied. When there are two simultaneous agreements to sale of the same property, Section 48 of the Transfer of Property Act comes into play.

Section 48 says that Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.

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The essence of Section 48, says that the transfer of the property cannot be done of something more than what the person really has. To simplify this further, it means when with respect to one property documents of transfer of rights therein are executed at different points of time, then, earlier documents would prevail over later documents. Section 48 determines the priority when there are successive transfers. It provides that where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their fullest extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created. Section 49 of the Registration Act provides that until the document is registered, it shall not affect any immovable property nor can the document be received in operation of the provisions of Sections 48 and 54 of the Transfer of Property Act and there would be compliance of provisions of Section 54 of the Transfer of Property Act as well as Section 49 of the Indian Registration Act.

However, the Madras High Court in Duraiswami Reddi v. Angappa Reddy held that the prior transferee would be entitled to enforce his rights though his document is registered later and even if the subsequent transferee entered into transactions bona fide without knowledge of the first transaction. It was held that this result was implicit and was a direct consequence of the combined operation of Section 47 of the Registration Act and Section 48 of the Transfer of Property Act. It is also observed that the right of priority of the first transferee would be postponed only if the later transferee establishes any informative circumstances like fraud, estoppels or gross negligence.

This decision was followed in a later decision of the Madras High Court in Ramaswami Pillai v. Ramaswami Naicker, as well as in the Bench decision of the Andhra Pradesh High Court in Jagannatha Rao v. Raghavarao.

In Chouth Mal v. Hira Lal, an agreement to sell land in favour of one defendant was executed on 17th January, 1932. The sale-deed was executed in defendant’s favour on 5th May, 1932. But in the meanwhile owners executed an usufructuary mortgage of the same land in the plaintiff’s favour on 20th February, 1932. It was held that the mortgage must have its due effect as against the subsequent sale.Once it is accepted that the parties really intended to convey the suit properties and possession of the said properties was in fact delivered to the conveyee in pursuance of the said conveyance, the mere omission of the plot numbers in the sale-deed is not of any consequence.

It means, if the same property has been transferred at different times the subsequent transfer shall not confer any right, title or interest on the basis of the subsequent transfer vis-à-vis the first transfer.

Mere registration does not convey the title to a purchaser.A transfer operates from the date of execution of the deed, although it may have been registered at a later date. Registration is not a formality which creates any rights. It is prima facie proof of intention to transfer the title. It is no proof of operative transfer. Customarily, the sale deed which was registered first has to prevail in the matter of conveyance of title over others.The title under sale deed passes on the date of execution of the sale deed, even if the registration of the sale deed is completed on later date, it must relate back to the date of sale.Therefore, an agreement to sell executed prior to date of attachment of judgment, but registered thereafter, would prevail over such attachment.

Therefore, According to Section 48, the transferor cannot prejudice the rights of the transferee by any subsequent dealing with the property. This self-evident proposition is expressed in the equitable maxim qui prior est tempore prior est jure.

By Medhavi Mishra

See how to what limit wife can harass husband in false dowry cases

How Rahul won false dowry cases filed by his wife-inspiration for all false dowry cases victim

Rahul(named changed) met a girl Priya on online matrimonial site for marriage proposal. the girl parents were from a very simple family and Rahul was from an upper-class family. Rahul family wanted a simple and traditional girl.  both the family of groom and bride met at bride’s home in Jaipur whereas Rahul was in Delhi.

The Same day the Rishta was fixed and also marriage date was also fixed in December 2008 to be performed in Delhi. Since Priya belonged to a very simple family the groom family took entire expenses to do all the arrangements in Delhi/. On one occasion the father of Priya called upon the Rahul father that he is feeling embarrassed that all the expenses are borne by the groom family so he offered to contribute for some of the expenses to which Rahul father initially refused but due to persistent calls. The bride father sent a cheque of Rs. 1000000/- in the name of Rahul. Since bride family was very cordial and wish to do something Rahul never thought of an evil plan behind the cheque and en cashed the cheque in his account and spent the money towards marriage expenses.

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Marriage was performed with full band Baja and baraat and everybody enjoyed the wedding. Priya and Rahul were married for lifetime now.

 

2 Months after….

two months after the marriage in the month of March 2009 bride Priya went to Jaipur to celebrate Holi. Rahul had planned his honeymoon to Europe after Holi celebration. Priya called her husband to Jaipur and after the due visit to Jaipur Priya and Rahul flown to europe for their honeymoon of 18 days. Both of them enjoyed their time. It was like a dream marriage for priya and Rahul and both the families.

3 Months later..

Priya became pregnant and joy both Rahul and Rahul family celebrated the moment. However Priya does not wish to have the child. Rahul told Priya that Rahul family wish to have Child and it would not be good to abort the child. To which Priya agitated and quarrels between Priya and Rahul became often. Rahul used to take Priya for regular check up but Priya did not wish to have child and pressurized Rahul to get the child aborted to which Rahul and Priya mutually decided to get the child aborted at a local hospital though the termination was legal Rahul was not happy with the decision.

On 18th June 2009, Priya left the matrimonial home of Rahul in Delhi and gone to Jaipur. Rahul called several times to Priya asking why he left the house without permission to which Priya responded that her tauji is critically ill and will come back after 15 days.

On 30 June 2009 in wee hours of the night Jaipur police arrived at Rahul’s house and arrested Rahul and family for dowry-related case filed by wife of Rahul at Jaipur. All of a sudden Rahul and his family life and reputation got ruined. After spending 10 days in custody. Rahul and his parents finally got bail. Rahul was mentally broken and was now about to be broken financially by her wife. Her wife lodged a case under 125 CrPC.

In which she demanded Rs. 150000/- as monthly maintenance from Rahul. Rahul thought of committing suicide by now and he also tried and even failed in that. Somehow he managed to gain strength and fight out all the false dowry cases against him and family. He discussed his case with highly proficient lawyers at first. One of the lawyers advised him to go for quashing of FIR at least against the parents as there were vague allegations in FIR. Rahul found strength and approached High court remember the cheque of Rs. 1000000/- which he en cashed was used against Rahul as a dowry and further Rahul visit to Jaipur for Holi at his wife house was used against him as all the witnesses of the wife were supporting wife’s false case.  she even stooped so low that she even used abortion her child against Rahul, Rahul lawyers in High Court pleaded at least parents should be free as no dates of cruelty was mentioned by wife in FIR and no clear-cut allegations are there in FIR as against the parents.

First court victory of Rahul…..

The High court quashed the charges against the parents of Rahul. Relieved Rahul now moved ahead to save himself a lot of false evidence was against him.

At trial, Rahul thankfully had the recording of the conversation in which father of the wife wished to contribute which justified Rs. 1000000 into his account and regarding Jaipur incidence all of the witnesses deviated from their stand and he was finally acquitted of the charges of 498a. She even stooped so low

Defeat in Victory

The story of Rahul is similar to many other Rahul’s in the country. Though dowry law is diluted under the wake of recent supreme court decisions. Which included no immediate arrest. Life of Rahul is ruined forever because of lenient laws towards women in the country and are mostly misused

The purpose of Priya being from a simple family was to extort money and she succeeded in many ways and still getting a handsome maintenance of Rs. 75000/- per month.

This is the best way this story can be ended in which Rahul won but lost everything and is still contesting his divorce case.

All about law of Partnership in India

Scope & Nature Of Indian Partnership Act,1932 and partnership law in India

Indian Partnership Act ,1932
Historical :
The Indian Partnership Act was enacted in 1932 and it came into force on 1st day of October, 1932[1]. The present Act superseded the earlier law relating to Partnership, which was contained in Chapter XI of the Indian Contract Act,1872. The Act is not exhaustive. It purports to define and amend the law relating to Partnership.[2]

A Partnership arises from a contract, and therefore , such a contract is governed not only by the provisions of the Partnership Act in that regard , but also by the general law of contract in such matters, where the Partnership Act does not specifically make any provision. It has been expressly provided in the Partnership Act that un repealed provisions of the Indian Contract Act , 1872 , save in so far as they are inconsistent with the express provisions of this act , shall continue to apply.[3] Thus, the rules relating to offer and acceptance , consideration , free consent , legality of object ,etc, as contained in the Indian Contract Act are applicable to a contract of Partnership also. On the other hand , regarding the position of minor , since there is specific provision contained in Section 30 of the Indian Partnership Act , the minor’s position is governed by the provision of the Partnership Act.

 

What Is The Nature Of Partnership?
Partnership is a form of business organization , where two or more persons join together for jointly carrying on some business. It is an improvement over the ‘Sole –trade business ’, where one single individual with his own resources, skill and effort carries on his own business. Due to the limitation of resources of only a single person being involved in the sole-trade business , a larger business requiring more investments and resources than available to a sole-trader, cannot be thought of in such a form of business organisation. In partnership, on the other hand , a number of persons could pool their resources and efforts and could start a much larger business, than could be afforded by any of these partners individually . In case of loss the burden gets divided amongst various partners in a Partnership.

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partnership

Criteria Of Partnership :
Any two or more than two persons can join together for creating Partnership. Section 11 of the Companies Act , 1956 imposes limit as to maximum number of persons in a partnership for the purpose of carrying :
· Banking Business – There can be maximum of 10 persons
· Any other purpose – There can be maximum of 20 persons.

If the number of members in any association exceeds the above stated limit , that must be registered as a company under Companies Act ,1956 otherwise that will be considered to be an illegal association.

As against partnership, where the maximum number of partners can be 10 or 20 , depending on the nature of partnership business, there could be possibly much larger number of members in a company.
· In Private Company – Here there can be maximum of 50 members
· In Public Company – Here there is no such limit to the maximum number.

Therefore , if a much larger business than could be afforded by only 10 or 20 persons , is sought to be carried on , a company works out to be better form of business organization than partnership . For instance , there could be a public company having 1,00,000 members , each one of them having contributed just Rs.10 , and thus having a capital of Rs. 10,00,000 for its business. A Company , as a form of business organization may be better than a partnership in another way also. It is an artificial person, distinct from its members , and has much longer life than that of a partnership, whereas the partnership being nothing but an aggregate of all the partners, partnership has much smaller span of life than a company. In the case of a Company, the liability of a member (shareholder) is limited to the extent of the amount of shares purchased by him, whereas in case of Partnership, the liability of every partner in unlimited, and this factor is of great advantage in case of a Company , from the point of view of risk of investors in the business.

Advantage Of Partnership over A Company : 
1. For the creation of partnership just an agreement between various persons is all what you require. In case of a company a lot of procedural formalities which have to be gone through before a company is created.

2. The partners are their own masters for regulating their affair. A company is subject to a lot of statutory control.

3. For dissolution of partnership , a mere agreement between the partner is enough But that is not the case of a company which can be wound up by only after certain set of procedure is followed.

4. Since all the profits are to be pocketed by the partners in a partnership firm, there is a great incentive for the partners to make business successful But that is not in case of a company.

5. In a Partnership the persons who have entered into are individually called partners and collectively a firm. A partnership firm does not have a separate legal personality. A company is a legal entity different from its members.

6. A partnership firm means all the partners put together , if all the partners cease to be partners , e.g., all of them die or become insolvent, the partnership firm gets dissolved. A company being a person different from the members ,the members may come and go but the company’s life is not affected thereby.

7. The shareholder of a company can transfer his share to anybody he likes but a partner cannot substitute another person in his place unless all the other partners agree to the same. Similarly, on the death of a member of a company his legal representatives will step into his shoes for the purpose of the rights in the company, but on the death of a partner his legal representatives do not get substituted in his place of partnership.

8. The minimum number of members in partnership in two and maximum in case of partnership carrying on banking business is 10 and in case of any other business is 20.In the case of a private company the minimum number is 2 and the maximum is 50 whereas in the case of a public company the minimum number should be 7 but there is no limit to the maximum number and therefore, any number of persons can hold shares in a public company.

9. The liability of the members of a company is limited but the liability of the partners is unlimited.

Indian Partnership Act .1932
Preamble—Scope And Purpose
The preamble is an admissible aid to construction . It throws light on the intent and design of the legislature and indicates the scope and purpose of the legislation itself.[4] But it cannot be used to control or qualify precise and unambiguous language of the enactment . It is only when there is a doubt as to the meaning of a provision, that recourse may be had to the preamble to ascertain the reasons for the enactment and hence, the intention of Parliament.[5]

Scope:
The scope of a partnership is primarily a question of the intention of the partners. There is no restriction on the exercise of such powers as it chooses at any time to exercise, except such prohibitions on illegal, immoral or fraudulent conduct as apply equally to individuals.
1- A partnership may itself be a member of another firm if the partners of the constituent firm consent thereto.

2- If it appears that all the partners have either authorized or ratified the contract, no further question as to its validity ordinarily remains. The cases where the question of the validity of partnership contract arises is where one partner has made the contract without specific authority from his co-partners. As to their implied scope partnerships may he divided into the classes of the non-trading and the trading. Some powers can be exercised by partners in partnership of either type. Thus a partner may retain an attorney protect the interests of the firm.

Definition Of Partnership:
Section 4 of the Indian Partnership Act ,1932 defines ‘Partnership’ as under[6] :
‘Partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all ’

Essentials Of Partnership :
According to Section 4, the following essentials are necessary to constitute a ‘Partnership’.
1. There should be an agreement between the persons who wants to be partners.
2. The purpose of creating partnership should be carrying on of business
3. The motive for the creation partnership should be earning and sharing profits.
4. The business of the firm should be carried on by all of them or any of them acting for all, i.e., in mutual agency

When all the above elements are present in certain relationship that is known as ‘partnership’. Persons who have entered into partnership with one another are called individually ‘partners’ and collectively ‘a firm’ and the name under which their business is carried on is called the ‘ firm name’.

Elements Of ‘Partnership’:
The definition of ‘partnership ‘ contains three elements :[7]
1. There must be an agreement entered into by all the persons concerned.[8]
2. The agreement must be to share the profits of business ; and
3. The business must be carried on by all or any of the persons concerned , acting for all.

Illustrations :
a) A and B buy 100 bales of cotton , which they agree to sell for their joint account. A and B are partners in respect of such cotton.[9]
b) A and B buy 100 bales of cotton , agreeing to share it between them. A and B are not partners.
c) A agrees with B, a goldsmith , to buy and furnish gold to B , to be worked on by him and sold , and that they shall share in the resulting profit or loss. A and B are partners.

Partnership Agreement – Oral , Written Or By Conduct
The Supreme Court has , construing the provisions of section 4 , observed that a partnership agreement is the source of a partnership , and it also gives expression to the other ingredients defining the partnership , specifying the business agreed to be carried on ,the persons who will actually carry on the business , the shares in which the profits will be divided , and several other considerations which constitute such an organic relationship . A partnership agreement therefore , identifies the firm and each partnership agreement may constitute a distinct and separate partnership. That is not to say that a firm is corporate entity or enjoys a juristic personality in that sense. However , each partnership is a distinct relationship. The partners may be different and yet the nature of the business may be the same , the business may be different and yet the partners may be the same. The intention may be to constitute two separate partnerships and therefore , two distinct firms , or to extend merely a partnership , originally constituted to carry on one business , to the carrying on of another business. The intention of the partners will have to be decided with reference to the terms of the agreement and all the surrounding circumstances , including evidence as to the interlacing or interlocking of management , finance and , other incidents of the respective business.[10]

Agreement of partnership need not to be express , but can be inferred from the course of conduct of the parties to the agreement. The firm rule is that once the parties entering into the partnership are clearly described in the instrument , there is no scope for further inquiry to find out by some process or casuistry , if any of the parties has got obligation to others for the purpose of inducting those others to whom any of the parties may be accountable in law , into the arena of partnership and for treating them as partners under the law.[11] If , the parties to an agreement have not agreed on the date of commencement of the partnership , it cannot be said that they have become partners.

The Supreme Cour, in Tarsem Singh v Sukhminder Singh[12], has held that it is not necessary under the ;aw that every contract must be in writing. There can be an equally binding contract between the parties on the basis of oral agreement, unless there is a law which requires the agreement to be in writing.

The relations inter se , among the promoters of a company , are not the same as the relations between partners. Persons entering into contract are not , on the authority of Keth Spicer Ltd v Mansell, necessarily to be viewed as partners. However , if they perform a large number of acts as part of the promotion , the court might come to a different conclusion.

Construction Of Partnership Agreements :
It is settled canon of construction that a contract of partnership must be read as a whole and the intention f the parties must be gathered from the language used in the contract by adopting harmonious construction of all the clauses contained there in . The cardinal principle is to ascertain the intention of the parties to the contract through the words they have used , which are key to open the mind of the makers. It is seldom that any technical r pedantic rule of construction can be brought to bear on their construction. The guiding rule really is to ascertain the natural ad ordinary sensible meaning to the language through which the parties have expressed themselves , unless the meaning leads to absurdity. A partnership deed must be constructed reasonably.

Determining The Existence Of Partnership : 
In Ross v. Parkyns[13] Jessel ,M.R., stated the law as follows : “ It is said (and that there is no doubt ) that the mere partcipation in profit inters se affords cogent evidence of partnership. But it is now settled by the case of Cox v. Hickman ,Buller v. Sharp that although a right to participate in profits is a strong test of partnership , and there may be cases where upon a single presumption , not of law , but of fact , that there is a partnership , yet whether the relation of partnership does or does not exists must depend upon the whole contract between the parties , and that circumstances is not conclusive. ”. the law as stated above has been restated in this section. The section also indicates the manner in which the general principle to be applied to a particular circumstances. The question whether the relation of partnership does or does not exist, “ must depend on the real intention and contract of the parties.

Explanation I – The mere fact that a person is entitled to a share in the profits does not make him a partner , because the real relationship may be one of debtor and creditor.

Importance Of Partnership:
A Partnership Agreement is a voluntary contract between two or more persons to enter into a business relationship between or among one another with the intention of carrying out the said business and sharing its profits/losses among themselves as agreed to in the document.

The parties to the agreement are referred to as Partners. The Partners agree to put all their capital, labour and skills towards achieving maximum gains from the venture. A Partnership Agreement will also spell out the manner in which it may be dissolved and must be signed and followed by each of the Partners.

A Partnership Agreement is defined as being an arrangement that is agreed to by all parties to the transaction and is an effectual method of helping each of the partners to:

• Agree to share a vision to collaborate together
• Set up mutually acceptable goals
• Specify the basis on which to begin working together
• Make sure that each of the partners are clear about about what needs to be achieved
• Assess the effectiveness of the agreement
• Bring out issues related to accountability and responsibility
• Lay a strong foundation that can sail through difficulties and testing times ahead

A partnership should begin small and slowly expand. It should be growing from year to year with annual reviews along the way to continuously improve it. There is no hard and fast way of writing out a Partnership Agreement but face to face discussions among partners, specifying special issues and setting these down in writing before actually drafting them into the document are some worthwhile preliminary steps worth following. The document , and any changes thereto, should be formally approved and signed by all the partners and dated.

The Partnership Agreement should begin with the name of the business as well as the nature of the business. The principle place of business should be to the address of the place of business. The date when the arrangement was made between the Partners and the term of its operation need to be expressly laid down in the agreement.

The amount of capital that the Partners will invest in the business will be held in a separate capital account and neither of the Partners will be able to withdraw any money from it. And, finally each individual capital account will be maintained in accordance with the profit sharing capabilities of the Partners as set forth in the agreement.

The income statement of the partnership shall be made individually in the names of each Partner and the profits/losses will be shared in accordance with the terms agreed to by each individual. Partnership profits or losses will be charged to the individual income accounts of the Partners. Partners are not entitled to draw any salary, but may draw upon their income accounts for any monies needed as defined in the partnership agreement.

The partnership may be voluntarily dissolved at any time with the mutual consent of the partners. In such an eventuality, the withdrawing partner should move reasonably swiftly to facilitate the liquidation. In case a partner was to die, the remaining partners will have the option to either liquidate the partnership or to buy out the share of the deceased partner.

Conclusion & Suggestion 
In my opinion Partnership is very important because in day to day activities we enter into partnership agreements and by making partners big goals are achieved with the help of joint and more number of people. The joint efforts of all the member results in successful accomplishment of tasks and that task or job can be easily afforded. Division of work leads to increase in efficiency at work among different partners.

When some job is done by consent of all the members and if some profit is earned then it is shared among the different partners. And similar is the case when some loss occurs then that is also beard among all the members and its not that only one has to take responsibility or give compensation. So in my view Partnership is a good form of doing business than a company which is owned by a single person.

Partnership is one of the oldest forms of business relationships. Though limited liability companies have replaced partnership firms in complex businesses, partnerships are still preferred by professionals and small trading and business enterprises in India and abroad.

The Indian partnership act of 1932 provides for a general form of partnership which is the most prevalent form in India, but, over time the general form of partnership has lost its charm because of the inherent disadvantages in it, the most important is the unlimited liability of all partners for business debts and legal consequences, regardless of their holding, as the firm is not a legal entity.

General partners are also jointly and severally liable for tortuous acts of co-partners. Each partner has the exposure of their personal assets being appropriated and liquidated to meet partnership dues. These are statutory position, which cannot be altered by contract inter-se, though at times subterfuges are resorted to by unscrupulous partners to avoid personal liability.

General partnership holdings are not easy to transfer; typically all other partners have to agree. Yet partnership is preferred in India, because of the ease of formation and lack of compliances involved.

The need for LLP:
The government has woken up from it slumber has acknowledged the disadvantages posed the general partnership and recognised the need for introducing LLP in India. To this end the government set up a Committee headed by Mr. Naresh Chandra which has come up with a framework for introducing LLP in India. The broad areas of analysis made by the Committee relate to:

1. Application of the LLP Regime;
2. Incorporation, Registration and Number of Partners;
3. Limited Liability;
4. Financial Safeguards; and
5. Tax Treatment of LLPs.
——————————————————————————–
[1] Sec 1 . The act came into force on the 1st day of October,1932 except Section 69, which came into force on the 1st day of October ,1933
[2] See Preamble to the Act.
[3] Sec. 3
[4] Poppatlal Shah vs. State Of Madras AIR 1953 SC 274
[5] Tribhuban Parkash Nayyar Vs. Union Of India (1969) 3 SCC 99.
[6] The present definition replaces Section 239 , Indian Contract Act which defined ‘Partnership’ as under :
‘Partnership is the relation which subsists between persons who have agreed to combine their property, labour or skill in some business , and to share the profits thereof between them.
The present definition is wider than the one contained in the Indian Contract Act in so far as it includes the important element of ‘ mutual agency ‘, which was absent in the old definition.
According to Pollock:
‘Partnership is the relation which subsists between persons who have agreed to share the profits of a business carried on by all or any way of them on behalf of all of them.’
[7] Dulichand Laxminarayan Vs. CIT AIR 1956 SC 354 ,Para 11 ; see also Pratibha rani Vs. Surajkumar AIR 1985 SC 628 ,(1985 ) 2 SCC 370 and Sanjay Kanubhai Patel Vs. Chief Controlling Revenue Authority AIR 2005 Bom 57,para8.
[8] Rampratap v Durgaprasad AIR 1925 Pc 293; Hemchandra Dev vs. Dhirendra Chandra Das AIR 1960 Cal 691.
[9] Birdichand v Harakchand 190 IC 613 , AIR 1940 Nag 211
[10] Deputy Commr Of Sales Tax (Law) Board Of Revenue (Taxes) vs. K Kelukutty AIR 1985 SC 1143 , from (1978) 2 ILR Ker 82
[11] CIT v Kedarmal Keshardeo AIR 1968 A&N 68 ; Aruna Group Of Estates , Bodinayakanur v State Of Madras (1962) 2 Mad LJ 294.
[12] (1998) 3 SCC 471 ,Para 13
[13] (1875) L.R. 20 Eq.331,335

Table Of Cases
· Poppatlal Shah vs. State Of Madras AIR 1953 SC 274
· Tribhuban Parkash Nayyar Vs. Union Of India (1969) 3 SCC 99.
· Dulichand Laxminarayan Vs. CIT AIR 1956 SC 354 ,Para 11
· Pratibha rani Vs. Surajkumar AIR 1985 SC 628 ,(1985 ) 2 SCC 370
· Sanjay Kanubhai Patel Vs. Chief Controlling Revenue Authority AIR 2005 Bom 57,para 8.
· Rampratap v Durgaprasad AIR 1925 Pc 293
· Hemchandra Dev vs. Dhirendra Chandra Das AIR 1960 Cal 691.
· Birdichand v Harakchand 190 IC 613 , AIR 1940 Nag 211
· Deputy Commr Of Sales Tax (Law) Board Of Revenue (Taxes) vs. K Kelukutty AIR 1985 SC 1143 , from (1978) 2 ILR Ker 82
· CIT v Kedarmal Keshardeo AIR 1968 A&N 68
· Tarsem Singh v Sukhminder Singh (1998) 3 SCC 471 ,Para 13
· Ross v. Parkyns (1875) L.R. 20 Eq.331,335

Right to avail free legal aid

Right to avail free legal aid is there in our constitution. A rich person can hire a lawyer and can access to highest courts in the country . while a poor person cannot afford justice today. Legal system in India is expensive and calls for immediate concern for the cause of poor and marginalized people in the society. Article 14 of our constitution says everyone is equal in front of law. this also means every person has a right of equal representation. so that rich person may not oppress the poor in courts. People fear to fight against rich persons because they can’t afford, this type of oppression is a bad precedent for progressive society. if the society has to progress then Article 14 of our constitution i.e right to equality must be upheld by the government in full letter and spirit and right for quality representation must be a mandate for the poor and the marginalized. Giving equal representation in court of law is called Access to Justice.
But what if the legal battle is between a rich person and the poor person?
The answer to this is free legal aid facility at every State in the country that supports marginalized people. Then who are these marginalized people? these marginalized people includes

1.people having annual income less than Rs. 100000
2.Differently abled people
3.women and transgenders
4.old age people
5.SC/ST
6. person in custody

Legal awareness programme

Now these people require social assistance to have an effective representation before various courts in India including Hon’ble Supreme Court. Every State in India have State Legal Service Authorities SLSA which is controlled by National Legal Service Authority called NALSA. Many legal aid counsels work for State legal service authority and people approach to State Legal service Authorities for a grant of legal aid counsel to them.
In Delhi we have DLSA for every district courts in Delhi. Now these SLSA also organize legal literacy campaigns and take assistance of various legal counsels in every district of the country by distribution of pamphlets, talk shows, nukkad natakto marginalized people and their communities they create awareness.

The legal aid advocates of the SLSA also visit various schools for legal literacy among the school children regarding the POSCO act(Child related sexual offences), registration of FIR and legal aid in every court of this country. So that children of this country empowered about working of legal system in India.

By managing two areas one is legal awareness and other area of legal aid the legal services authorities of this country are working day in and day out to promote access to justice. so that the marginalized people are not left out in a quest for justice and approaching courts is not a luxury for rich people only.
Normally legal aid advocates are doing work related to legal aid and are allotted nominal cases. there is division of panels in state legal services like civil, criminal, family panels. pay structure of legal aid counsels are fixed by SLSA and the counsels are not allowed to charge from legal aid beneficiaries.
Other legal initiative of legal aid authorities is National Lok Adalat created to promote settlement of disputes in quick manner. it is organized in every court once a month. so that in cases where settlement is possible. The National Lok adalat is organized to reduce pendency of cases. which is seeing a downward trend in recent years.
National Lok Adalat held on 08.07.2017 disposed of more than 10.1 lakhs total cases including 5.50 lakhs pending cases and 4.68 lakhs pre-litigation cases with the settlement amount of Rs 3009 Crores
The legal service authority must be credited for such a large scale initiatives to promote access to justice and making justice easier and upholding constitutional mandate.
Problems faced by SLSA.

1. Lack of skilled advocates- Lot of skilled advocates in our country are working for big law firms or doing junior-ship under a big senior. the functioning of legal aid counsels requires a lot of devotion of time, since skilled lawyers most of them have no time to devote the SLSA have lot of unskilled lawyers which is fatal.
2. Lack of funds and low payment scale- even the pay scale of em paneled advocated in SLSA is low. Due to lack of funding. That makes even less lawyers motivated towards the Legal aid.
3. Lack of training of volunteers and advocates-The training facility in legal aid centers are very minimal, this effects performance of lawyers in courts. since most of the lawyers in SLSA are young and inexperienced the quality suffers.
4. Poor handling of legal aid beneficiaries-Since the lawyers in SLSA are not trained properly in handling marginalized people. there is a communication gap this can be fatal in the case in court.

What can be done?
In order to improve the quality of SLSA
1. More funding-: the government should increase funding to SLSA’s so that there is no fund crunch and legal aid advocates are paid at par with law firms. It will attract more talent.
2. Trained trainers- the government or the High court should make it mandatory for all senior advocates to dedicate some time towards imparting required skill set to legal aid advocates. so their quality will be at par with any other advocates.
3. More awareness- More funding to SLSA means more awareness among the needy people to avail this service and therefore will increase the access of justice among all strata of society.

I have been working for DLSA south west Delhi for the last 1.5 years and doing my private practice. I am founder of Lexspeak Legal a law firm based in Delhi. I am also handling Pro Bono cases of my own apart from legal aid cases by DLSA south west Delhi . I represent marginalized people all the way till Hon’ble Supreme Court free of cost. If anyone needs free legal aid and is a needy person then my firm will help in such cases. you may contact

Advocate Nitish Banka contact me on [email protected]

Real Estate Scam in India

Real Estate scam in India

In India many thousands of people have invested in on going projects by many builders in the country. Now these projects are under construction and are available at low rates. since possession of the projects are offered within 36 months period from the date of builder buyers agreement. Here is the twist.

Image result for real estate scam

Projects getting delayed.

Now if the project is delayed there is no security for consumers about their investments.only remedy available is to go to consumer forums. which have lot of pending cases. on an average a consumer case takes 4–5 years that means 4–5 years is easily granted to these builders. plus if builder loses he again can appeal at higher forums.citing hidden clauses in agreement he can fool the consumers.Even the penelty clauses are one sided and even if the consumer wins and spending 10+ years in litigation he is still a loser as he would get petty compensation which he has already lost as a interest of whatever he has invested and builder in 10+ years has gained 1000’s of customers like the consumer who has won the case. Plus cost and time is again is on consumer therefore many people don’t approach courts.

What these builders do is they divert the funds of one project to another project and again to another project. with flashy advertisement many get allured and invest heavily in these under construction project.

The builder construct a project till the skeleton of building is ready and later will stop the work to engage the labor to other project for first two years a consumer may think fast pace construction is going on and all of a sudden everything stops as at this stage the builder has collected 90% of money while only 10pc is actually been spent and rest diverted to new project.

There is another scheme like builder pays EMI or rent till possession. people allured by such schemes take huge bank loans, for few months builder pays emi and then when he stops paying the EMI, the banks comes after you.

Thousands of people are victims of this and when this end under the new bankrupcy code the builder declare himself bakrupt and foolish consumers will remain victims.

Remedies.

There are very limited remedy and that is only options buyers have one is

These days NCDRC is entertaining petition under section 12(1)(c) (class action petition) of the consumer protection act-1986, wherein joint petition can be filed on behalf of innocent consumers.

Pre-Requisites

  1. All the buyers are affected by same cause.
  2. Same relief is sought by the buyers
  3. There are many number of buyers.
  4. Grievance related to same project
  5. No default on part of buyers-All payment made

If all the conditions are fulfilled the complaint is eligible for one under 12(1)(c) of the consumer protection act 1986.

About Complaint

As per the judgement of Ambrish Kumar Shukla

A complaint under Section 12 (1)(c) of the Consumer Protection Act can be filed only on behalf of or for the benefit of all the consumers, having a common interest or a common grievance and seeking the same / identical relief against the same person. Such a complaint however, shall not be deemed to have been filed on behalf of or for the benefit of the consumers who have already filed individual complaints before the requisite
permission in terms of Section 12(1)(c) of the Consumer Protection Act is accorded.

Therefore the prayer clause have to be drafted keeping in mind that it is for the benefit for all the consumers or else the complaint will be rejected.

The content of the complaint must also not be a single party centric it should speak for all the consumers.

After the complaint is admitted in the forum any consumers who wish to proceed against the builder can file an individual application for impleadment with affidavit.

More than one complaints under Section 12(1)(c) of the Consumer Protection Act are not maintainable on behalf of or for the benefit of
consumers having the same interest i.e. a common grievance and seeking the same / identical against the same person. In case more than one such
complaints have been instituted, it is only the complaint instituted first under Section 12(1)(c) of the Consumer Protection Act, with the requisite
permission of the Consumer Forum, which can continue and the remaining complaints filed under Section 12(1)(c) of the Consumer Protection Act
are liable to be dismissed with liberty to join in the complaint instituted first with the requisite permission of the Consumer Forum.

RERA

this law is introduced and has put strict regulations on builders.

It is advisable not to invest in under construction projects in India its a scam and collectively reach consumer forums for redressal it would put pressure on builders.

Investing in real estate is a big scam

Adv. Nitish Banka

Advocate Supreme Court of India

Lexspeak

Divorce on Adultery

Divorce on Adultery

Under the Hindu Marraige Act, 1955 adultery word is not used in the Section 13 1(i) of the HMA 1955

13. Divorce- (1) Any marriage solemnized, whether before or after the
commencement of the Act, may, on a petition presented by either the husband or
the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) has, after the solemnization of the marriage had voluntary sexual intercourse
with any person other than his or her spouse;

Image result for adultery

Divorce on Adultery

Now How to prove Adultery in Indian Courts? Continue reading