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REAL ESTATE COMPANIES ON ASSURED RETURN BASIS IS AGAINST SEBI & RBI ACTS AS PER COURT ORDER DATED 29.08.2012
Division Bench, consisting of the Hon'ble Acting Chief Justice and Hon'ble Mr. Justice Rajiv Sahai Endlaw of the High Court of Delhi, on a public interest litigation WP(C) 5324/2012 filed by an investor, have issued directions to the Reserve Bank of India and Securities & Exchange Board of India to investigate against real estate companies who are inviting booking of property from the public with assured returns. The Hon'ble High has also further issued directions to take further remedial steps not only in restraining inviting booking on assured returns but also to take other action as permissible under law as well.
ORDER / 29.08.2012
1. This petition is filed in public interest. The petitioner has brought to the notice of this court that respondents no. 7 to 10, real estate development companies are inviting deposits from public with assured returns with buy back options. The submission is that the same amounts to banking activity within the meaning of Section 45-IA of the Reserve Bank of India Act, 1934 as applicable to non-banking financial corporations and is without the permission of the Reserve Bank of India as well as SEBI and cannot be undertaken by respondents no.7 to 10. It is further pleaded that not only are the said activity illegal but it is possible that small time investors having limited funds would be duped by such companies.
W.P.(C)5324/2012
2. We find that the petitioner had sent a representation to the Reserve Bank of India and SEBI only on 10.7.2012. Learned counsel for SEBI has appeared on advance notice and has submitted that on the representation of the petitioner, action has been initiated and the matter is under investigation. He has produced copies of letter dated 06.08.2012 addressed to respondents no.7 to 10 asking them to submit required documents to take further action.
3. Since the matter is already under examination by the concerned authorities, it is not necessary to entertain this stage except for directing the RBI and SEBI to conduct and conclude the probe at the earliest and if it is found that respondent no.7 to 10 are not eligible to undertake such activities, take further remedial steps not only in restraining these respondents but also to take other actions as permissible under law as well. Petitioner shall be intimated about the outcome of the proceedings of the SEBI. In case the petitioner remains aggrieved by the action taken by the concerned authorities, he would be at liberty to approach the Court.
With the aforesaid directions, the petition stands disposed of.
Division Bench, consisting of the Hon'ble Acting Chief Justice and Hon'ble Mr. Justice Rajiv Sahai Endlaw of the High Court of Delhi, on a public interest litigation WP(C) 5324/2012 filed by an investor, have issued directions to the Reserve Bank of India and Securities & Exchange Board of India to investigate against real estate companies who are inviting booking of property from the public with assured returns. The Hon'ble High has also further issued directions to take further remedial steps not only in restraining inviting booking on assured returns but also to take other action as permissible under law as well.
ORDER / 29.08.2012
1. This petition is filed in public interest. The petitioner has brought to the notice of this court that respondents no. 7 to 10, real estate development companies are inviting deposits from public with assured returns with buy back options. The submission is that the same amounts to banking activity within the meaning of Section 45-IA of the Reserve Bank of India Act, 1934 as applicable to non-banking financial corporations and is without the permission of the Reserve Bank of India as well as SEBI and cannot be undertaken by respondents no.7 to 10. It is further pleaded that not only are the said activity illegal but it is possible that small time investors having limited funds would be duped by such companies.
W.P.(C)5324/2012
2. We find that the petitioner had sent a representation to the Reserve Bank of India and SEBI only on 10.7.2012. Learned counsel for SEBI has appeared on advance notice and has submitted that on the representation of the petitioner, action has been initiated and the matter is under investigation. He has produced copies of letter dated 06.08.2012 addressed to respondents no.7 to 10 asking them to submit required documents to take further action.
3. Since the matter is already under examination by the concerned authorities, it is not necessary to entertain this stage except for directing the RBI and SEBI to conduct and conclude the probe at the earliest and if it is found that respondent no.7 to 10 are not eligible to undertake such activities, take further remedial steps not only in restraining these respondents but also to take other actions as permissible under law as well. Petitioner shall be intimated about the outcome of the proceedings of the SEBI. In case the petitioner remains aggrieved by the action taken by the concerned authorities, he would be at liberty to approach the Court.
With the aforesaid directions, the petition stands disposed of.
P R E S E N T : Sri Y.Dhilleswara Rao, B.A., LL.B.,
President
Sri G.Viswanadha Reddy, M.A., B.L., P.G.I.R., PM & LW
Male Member
Smt D.Suseela, M.A. M.Phil (Ph.D)
Female Member
Thursday, the 20th day of November, 2008.
CONSUMER CASE NO.263/2008
Between:
Mrs.N.Rama Parvathi, W/o N.Ravi Prasad, Hindu, aged 42 years, residing at Flat No.403, Defence Officers Apartment, East Point Colony, Opp.to VUDA Park, Visakhapatnam-530 017. ….. Complainant.
A n d:
1. M/s Sterling Holiday Resorts (India) Ltd., regd.office, Kodambakka, Chennai-600 024, rep.by Managing Director.
2. M/s Sterling Holiday Resorts (India) Ltd., E-5, 4th Floor, Pavan Palace, Dwarakanagar, Visakhapatnam, rep.by its Branch Manager.
….. Opposite Parties.
This case is coming on for final hearing on[protected] in the presence of Sri.D.V.V.S.Somayajulu, Advocate for the complainant and the Opposite Parties 1 and 2 were set exparte and having stood over till this date the Forum delivered the following order:
: O R D E R :
1. This is a complaint filed under Section 12 of Consumer Protection Act, 1986, for a direction to the opposite parties:
a) To pay a sum of Rs.3, 42, 560/- at the rate of Rs.26, 880/- per year towards the rentals payable from the calendar year 1997 to 2008,
b) To acknowledge and issue final receipts for balance of Rs.9056/- which was received by the 2nd Opposite Party at Visakhapatnam on behalf of the 1st Opposite Party,
c) To discontinue the practice of levying Annual Annuity Charges and refund the entire amount of Rs.67, 650/- which was already paid by the Complainant,
d) To pay Rs.50, 000/- as punitive damages due to unfair trade practices,
e) To grant Rs.50, 000/- towards mental agony and harassment,
f) To award interest at 18% per annum on the outstanding amounts which are refundable to the Complainant, and
g) To direct to pay Rs.10, 000/- towards costs.
In Brief the case of the complainant is:
1. That the 2nd Opposite Party is a branch of the 1st Opposite Party. The Opposite Parties have introduced “Property Time Share” concept according to which M/s Sterling Holiday Resorts Limited has marketed “Time Shares” throughout the country promising to construct Holiday Resorts at various places. During September, 1987 when the Complainant was at Thadepalligudem, the sales officials of Opposite Party No.1 have induced the Complainant to purchase Time Share Units. It was assured that the Complainant has got option either to occupy and enjoy his share or else he can have return in cash by way of assured 20% returns. The Complainant is allotted No.1893 “U” to “Z”. It was also assured that in case the buyer is unable to avail facility by occupying the premises, there shall be guaranteed return of 20% per year and further the Complainant can exchange her share with other members besides opting for pre-agreed assured return of 20%. The Complainant purchased “seven time shares” in 1987 in the Kodaikanal resort and paid entire consideration.
2. That the Opposite Parties were irregular from the beginning in payment of guaranteed returns of 20%. The Complainant received returns amounting to Rs.26, 880/- per year until 1996. But all of a sudden, the Opposite Parties have stopped payment of 20% assured returns annually. They have advised that they have introduced “Annual Annuity Charges”. It shall be paid by the members and till such time the “Annual Annuity Charges” are paid, the members will not be able to enjoy occupation and assured annual returns of 20%. The Opposite Parties have introduced the “Annual Annuity Charges” in order to exploit the Complainant and other members. Upon persuasion by officials of the 2nd Opposite Party, the Complainant paid the outstanding “Annual Annuity Charges” for the period commencing from Calendar year 1998. Thus, the Complainant paid Rs.67, 650/- towards “Annual Annuity Charges” but the Opposite Parties have not released a single payment towards assured rentals of 20% in spite of legal notices. That the Complainant paid entire sum of Rs.67, 650/- but the 1st Opposite Party has acknowledged only Rs.58, 594/- leaving the balance of Rs.9056/-. That there is deficiency of service and unfair practice.
3. The Opposite Parties remained exparte. Complainant filed her affidavit and marked Exs.A1 to A16. Heard the learned council for Complainant and perused the documents The point for consideration is whether there is deficiency of service?
4. Point : The fact that the Complainant has purchased “Seven Time Shares” from Opposite Party No.1 and the Complainant received the rentals is admitted. Also admitted payment by Complainant towards Annual Annuity Charges but contended the Complainant has paid a sum of Rs.58, 594/- towards Annual Annuity Charges but not Rs.67, 650/- as alleged by the Complainant. These admissions are found in Ex.A15 reply dated[protected] issued by General Manager-legal on behalf of the first Opposite Party. While admitting payment of rentals, it is contended the rentals were paid up to 1997. But it is found in Ex.A2 letter dated[protected] of Opposite Party No.1 Rental Returns were paid for the year 1996. There is no proof the Opposite Party has paid up to 1997 as contended in Ex.A15. Similarly it is found there is no truth in the contention in Ex.A15. Similarly it is found there is no truth in the contention in Ex.A15 that the Complainant has paid Rs.58, 594/- towards Annual Annuity Charges only. The relevant copies which are filed by the Complainant are marked as Exs.A5 to A13. The total sum paid under the above receipts is Rs.67, 650/- but not Rs.58, 594/-. Thus, the Opposite Parties are liable to pay at the rate of Rs.26, 880/- per year towards the rentals from the calendar year 1997 till 2008 which amounts to Rs.3, 42, 560/-. The non payment of the same in spite of legal notices is deficiency of service.
5.In the result, the Complaint is allowed, directing the Opposite Parties to pay (a) Rs.3, 42, 560/- (Rupees Three lakhs, Forty two thousand, Five hundred and sixty only) being the sum payable at the rate of Rs.26, 880/- per month towards rentals payable from 1997 calendar year till the year 2008 and also to pay interest at 12% p.a., on Rs.3, 42, 560/- from the calendar year 1997 till realization, (b) we also direct to refund Rs.67, 650/- (Rupees Sixty Seven thousand, Six hundred and fifty only) to the Complainant being the Annual Annuity Charges, which is collected not in terms of the original scheme; (c) we also direct to pay Rs.10, 000/- (Rupees Ten thousand only) towards compensation for mental agony and (d) Rs.5, 000/- (Rupees Five thousand only) towards costs.
Dictated to the Stenographer, transcribed by him, corrected by me and pronounced by us in the open Forum on this the 20th day of November, 2008.
Sd/- Sd/-
President Male Member
District Consumer Forum-I
Visakhapatnam
Sd/-
Female Member
APPENDIX OF EVIDENCE
Exs. Marked for the complainant:
1. Ex.A1 dated 24-2-88 is the Xerox copy of the letter issued by the Opposite
Parties to the father of the Complainant.
2. Ex.A2 dated 8-10-96 is the Xerox copy of the letter issued by the Opposite
Parties for Complainant delivering payment for the year 1997.
3. Ex.A3 dated[protected] is the Xerox copy of the letter of Complainant
intimating change of address to op with ack.
4. Ex.A4 is the Xerox copy of the letter issued by the 2nd Opposite Party .
5. Ex.A5 dated[protected] is the Xerox copy of the cash paid receipt.
6. Ex.A6 dated[protected] is the Xerox copy of the cash paid receipt.
7. Ex.A7 dated[protected] is the Xerox copy of the cash paid receipt.
8. Ex.A8 dated[protected] is the Xerox copy of the cash paid receipt.
9. Ex.A9 dated[protected] is the Xerox copy of the cash paid receipt.
10.Ex.A10 dated[protected] is the Xerox copy of the cash paid receipt.
11.Ex.A11 dated[protected] is the Xerox copy of the cash paid receipt.
12.Ex.A12 dated[protected] is the Xerox copy of the cash paid receipt.
13.Ex.A143 dated[protected] is the Xerox copy of the cash paid receipt.
14.Ex.A14 dated 9-1-2007 is the Xerox copy of the lawyer’s notice to the
Opposite Party NO.2.
15.Ex.A15 dated 3-2-2007 is the Xerox copy of the reply notice issued by
Opposite Party NO.2.
16.Ex.A16 dated[protected] is the Xerox copy of the rejoinder notice issued by
claimants advocate.
Sd/- Sd/-
President Male Member Sd/-
Female Member