I had filed a consumer court case in Jan 2018 for delay in providing possession of the flat which was rejected by the consumer court after 1 year on grounds of a technical mistake in the special power of attorney, court order specified to correct the mistake and refile the case. I have refiled the case in consumer court now, but the developer has meanwhile been filing nact138 complaints against me for non payments of PDC cheques since january. I didnt recieve any notice for this on my NRI address, I got to know only when a court server came to the address registered in India with an order of arrest to appear before the court. I had even mentioned my NRI address on the sale agreement & even the cheques were drawn from an NRE account. Q. Can I hire a lawyer to represent me in the court in the cheque bounce case? Q. Can the cheque bounce case be quashed on the grounds of consumer court case being filed for this case if I had made all payments until the possession promised date and stopped all cheques only after the possession was delayed? Q. The developer had sent a possession letter over email without any occupancy certificate/completion certificate before & is claiming that he had sent the possession letter. Does a possesion email count without offering any occupancy certificate? The flat might have been completed by now by the developer due to the delay in the consumer court but he hasn't provided any of the flashy ameneties in the building as written in the prospectus.
1. Yes, both in the consumer forum and in the Magistrate's Court you can engage same or different advocate.
2. Well, quashing is not possible but the case after trial would certainly be dismissed.
3. Yes possession letter without the aforesaid certificate is incomplete and hence you were justified in refusing the accept it.
At least once you have to appear in court to obtain regular bail than your advocate or file quash petition in HC for non compliance of procedure laid down for cheque bounce cases, No notice received and Cheque were hold due delay in possession committed by builder. Hence, no legally enforceable debt.
Support your claim that buyer can't be forced to accept delayed flat, same ruled by SC.
You were responsible to pay up to decided possession date, after that you had rightfully hold the payment.
Further moving into a house without an Occupancy Certificate is illegal and default by builder and builder cannot force possession of property if the OC or CC is not issued.
You have strong case both consumer and quash of sec 138 case.
1) you can engage lawyer to appear on your behalf
2) you can file petition in HC for quashing cheque bouncing case
3) builder can offer possession letter only after OC is issued
Dear Client,
As per facts,
1). Yes, you can hire a lawyer to represent your case before the court.Q. Yes, you can take of the grounds of before NI Court about that consumer court case being filed for this
case for possassion of property.
You can me call through KAANOON for more detail.
Ans.1. Yes, you should contact a local lawyer to contest your case. You have good grounds to contest the case. Firstly non receipt of legal notice. Secondly, there is no liability since a consumer case is pending. Thirdly, he has not obtained OC so far. And so on.
Ans.2. You can not get the case quashed as there is no provision in NI Act. On the other hand, you can contest the case forcefully and can be acquitted.
Ans.3. Possession without OC is not considered possession. All the more he has to provide all the amenities as agreed.
Go ahead with contesting both cases forcefully.
In NI Act complaint after framing notice under section 251 Cr.pc (Not plead guilty), get permanent exemption in appearing the case on each date of hearings being NRI.
Good luck.
When you issue any cheque you are under legal obligation to honour such cheques failing which cheque bounce case will be applicable to you.
So far delay in possession you are entitled to withdraw from the project and claim refund of all payments with interest.
1. Yes, you can be represented through a law. Assail these 138 proceedings and seek a stay.
2. Absolutely. On the face it is apparent that the cheque bounce case has been filed in retaliation.
3. Possession cannot be offered legally in absence of the occupancy and the completion certificate. It is still open for your approach RERA and seek appropriate relief.
1. You can engage a lawyer and defend.
2. 138ni act quashing is not possible.you can contest the case on merits.
3.Builder can not allot flat without obtaining OC .Law clearly state that no person shall occupy or allow any other person to occupy building or part thereof without obtaining OC
1. Yes you can engage an advocate to appear on your behalf.
2. No it cannot be quashed on this ground.
3.You can dispute same before the court.
4. You can deny possession if there is no OC and the case of 138 can be contested on this ground.
Yes
If you pay the cheque value and for settlement it will withdrawn in trial court.
No without occupation certificate taking possession and giving it is illegal.
You can appoint or engage the services of a lawyer to conduct the case for you but he cannot represent the case on your behalf.
No, you may have to challenge the case on merits.
The developer cannot handover possession before obtaining OC hence that itself is an act of deficiency besides the deficient works yet to be completed.
Builder shouldn't have done this. Don't worry, as per details you have given, you are safe and sound. Engage good lawyer and fight it out.
