Top News Headlines 17th Feb 2022 : Aggrieved Parties Can Move To RERA Authority Against Recovery Proceedings Initiated By Banks; RERA To Prevail Over SARFAESI Provisions: SC

Aggrieved Parties Can Move To RERA Authority Against Recovery Proceedings Initiated By Banks; RERA To Prevail Over SARFAESI Provisions: SC

• The Hon’ble Supreme Court (SC or Court) has upheld the decision of the Rajasthan High Court(HC) in the case of Union Bank of India v Rajasthan Real Estate Regulatory Authority. The HC held that the Real Estate Regulatory Authority (RERA) can entertain complaints by home buyers against banks which took possession of real estate projects in its capacity as a secured creditor.
• RERA’s authority to issue directions against a bank/ financial institution which claimed security interest over properties which were subject matter of an agreement between the allottee and the developer was questioned by the Plaintiff, the bank.
• The contention of the Plaintiff was that RERA could issue directions only against a promoter, allottee or a real estate agent. However, since the Plaintiff did not fit under any of the aforementioned categories, RERA could not exercise its jurisdiction and entertain proceedings against the Plaintiff.
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• RERA’s contention was since the Plaintiff was an assignee of the promoter, it would also fall within the definition of the promoter.
• However, the HC did not agree with the RERA’s contention and observed that statutory assignment of right of the borrower in the secured creditor kicks-in as soon as the bank takes recourse under provisions of Section 13(4) of the Act.
• The HC, relying on the decision of the Apex Court in the case of Bikram Chatterjee v Union Of India, further held that in case of a conflict between the provisions of RERA and SARFAESI, RERA would prevail.
• The HC also observed that provisions of RERA would not be applicable in transactions between a borrower and banks/ financial institutions where security interest has been created by mortgaging the property prior to the introduction of RERA unless creation of such mortgage or transaction is fraudulent or collusive.
• Lastly, the HC also clarified that an authority under RERA would have jurisdiction to entertain the complaint filed by an aggrieved person the moment banks/ financial institutions take recourse to any of the measures available under Section 13(4) of the SARFAESI Act.
• In its concluding remarks, the SC, affirming the view taken by the HC, held that Regulation 9 of the 2017 regulations is neither ultravires the Act nor invalid and relying on judgment of the Court in the case of Bikram Chatterji (Supra), it held that in the event of conflict between RERA and SARFAESI Act, the provisions of RERA would prevail.
• Dismissing the appeal, the SC held that the parties can individually pursue the case before appropriate authorities.

Trial Court Bound To Appoint Legal Aid Advocate In Case The Advocate Of The Accused Fails To Appear: Karnataka HC

• In the case of Somashekara @Soma vs. State of Karnataka the Hon’ble Karnataka HC has held that in case the advocate representing the accused who is in custody fails to appear before the Court, then the trial Court is obligated to appoint a legal aid advocate to defend the accused.
• In the instant case, the accused had committed penetrative sexual assault on the victim who was 14 years old. The complaint was filed by the brother of the victim. During trial, the Counsel for the appellant (accused) failed to cross-examine the material witnesses.
• After hearing the other witnesses and going through the material on record, the Trial Court had convicted the accused. The reasoning given by the trial court was that since the testimony of the material witnesses had not been controverted, the charges against the appellant were proved. Also, the accused and his counsel did not do the needful examinations despite being given an opportunity and hence, in view of section 33(5) of the POCSO Act, the Court was bound to reject the application for further adjournment for cross-examination of the material witnesses.
• It is important to note here that section 33(5) of the POCSO Act states that the Court has to make sure that the victim child is not brought to the Court repeatedly to testify. It was in light of this provision that the trial Court felt that it was bound to reject the application of the accused requesting further adjournments.
• In appeal, the appellant/accused pleaded that he was in custody and on his counsel abandoning him, he was not given legal aid. It was pleaded that this led to the violation of his fundamental rights guaranteed in Article 21, 22 and 39A of the Constitution.
• The Hon’ble HC observed that article 13(2) of the Constitution clearly states that the State shall not make any law which takes away any of the Fundamental rights guaranteed by Part III of the Constitution. Hence, the two provisions, namely article 13(2) and section 33(5) of POCSO have to be interpreted harmoniously so as to give effect to both. The current interpretation that was done by the trial Court ran contrary to the spirit of the Constitution.
• To strike harmony between the two laws, the HC held that when the Counsel for the accused failed to appear, the Trial Court was bound to provide him free legal aid at the State’s expense. The same right has also been granted to the accused by section 304 of CrPC. The HC observed that it was mandatory for the trial Court to refer the matter to the District Legal Services Authority for providing the accused/appellant with free legal aid.
• Thus, the appeal was allowed and the HC set the conviction under sections 376, 506, 323 of IPC and section 5 read with section 6 of POCSO aside. The trial Court was directed to recall the witnesses under 311 CrPC for further cross examination and then to examine the accused under section 313 CrPC.

If Reliance Placed On A Document To Seek Juvenility Is Not Reliable Or Dubious In Nature, The Appellant Cannot Be Treated To Be Juvenile: SC

• The Hon’ble Supreme Court (SC or Court) has upheld the decision of the Rajasthan High Court(HC) in the case of Manoj @ Monu @ Vishal Chaudhary v State of Haryana has held that the plea juvenility must be raised in a bonafide and truthful manner.
• Appeal before the SC was filed challenging an order passed by the Punjab and Haryana HC which set aside the plea of the Appellant as juvenile in conflict with law and ordered the Appellant to stand trial as an adult.
• Citing the judgment of the Court in an earlier case of BablooPasi, the Court remarked that whilst the provisions of the statute are to be interpreted liberally, benefit cannot be granted to the appellant who has approached the Court with untruthful statement.
• Relevant facts are that appellant was accused of waylaying a car and snatching cash worth 22 lakhs from the occupants of the car and causing the death of another occupant due to the bullet fired on him.
• During the pendency of trial, the appellant moved an application claiming he was a juvenile as on the date of the mishap by relying upon his school records. The Learned Additional Sessions Judge (ASJ) accepted the plea and declared him to be a juvenile.
• The age of the accused as on date of incident as per the Ossification Test report was 16 years 8 months and 5 days but the age assessed by the doctor’s report was 23-24 years.
• The HC set aside an order passed by the ASJ and declared the accused as juvenile in conflict with law. Reliance was upon the family register prepared under The U.P. Panchayat Raj (Maintenance of Family Register) Rules, 1970 to hold that the plea of juvenility cannot be allowed.
• The HC observed that appellant has relied on three documents viz, Birth Certificate; School leaving Certificate and the Report of the Ossification Test in support of his plea of being a juvenile.
• Since the date of birth was registered after the filing of the application under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (Act), it could not be relied upon owing to the time gap between birth and registration.
• Given the above, the school leaving certificate was also unreliable and since the certificate is only a procured document for proving juvenility before the court.
• The Court further noted that ossification test varies based on individual characteristics and hence its reliability had to be examined on a case-to-case basis. On Family register, it was observed that it was a question of fact as to how much evidentiary value is to be attached to the family register, but to say that it is entirely not relevant would not be the correct enunciation of law.
• Analysing all of the above, the Court concluded by observing that the appellant sought to relied upon juvenility only on the basis of school leaving record in his application. However, such school record was not reliable and seemed to be procured only to support the plea of juvenility.
• Further, the appellant did not refer to his birth certificate in the application as it was obtained subsequently.
• Given the above, the Court held that the plea of juvenility has to be raised in a bonafide and truthful manner. If the reliance is on a document to seek juvenility which is not reliable or dubious in nature, the appellant cannot be treated to be juvenile keeping in view that the Act is a beneficial legislation.
• Dismissing the appeal, the SC held that the view taken by the HC is a possible view in law and such view does not call for any interference in the instant case.