A very basic and preliminary due diligence on property title can be carried out by the buyer herself before appointing a lawyer
At the Moneylife seminar ‘Invest Profitably in Stocks & Bonds’, many asked why not ‘real estate’? During the four-hour session, Debashis Basu, editor & publisher of Moneylife took attendees, including me, through the pitfalls of investing in stocks and bonds and we all hoped for similar guidance on real estate and art.
To quote Donald Trump on Real Estate: “It's tangible, it's solid, it's beautiful”. But for most of us investing in real estate is expensive, usually done on borrowed money, and sour for the want of a clear title. However, a very basic and preliminary due diligence on title of the owner can be carried out by the buyer himself; before he appoints an advocate.
Here are some general guidelines…
No interest in immovable property can be created without a document that is duly registered with the office of the Sub-Registrar of Assurances. Since April 2013, even equitable mortgages by deposit of title deeds are required to be registered. Each time a document is registered, the Sub-Registrar of Assurances issues Index II.
The Government of Maharashtra has carried out a lengthy exercise of computerizing all such documents from 2002 to date. Usually one must go as far back as 30 years whilst taking such searches at the Sub-Registrar of Assurances. These days, such searches can also be made online; try the Department of Registration and Stamps’ site . Professional search clerks, available dime a dozen, usually undertake this exercise, but at a cost.
Everything is just a click away. If the seller is a company, one can easily go to the site of Ministry of Corporate Affairs and get a confirmation on whether or not the property is mortgaged or charged.
Property Card is a basic document maintained under the provisions of the Maharashtra Land Revenue Code. For properties beyond the city limits, a 7/12 extract is maintained. It, amongst other things, discloses the name of the owner/ holder of the plot. Try http://prcmumbai.nic.in/prcmumbai/jsp/propertyNew.jsp for plots in Mumbai.
As far as searches at the Sub-Registrar of Assurances are concerned, the starting point is the Cadastral Survey number and Revenue Division. This can be obtained from any document of title.
All of the above is in public domain, available for a nominal fee, and to just about anyone.
Public Notice is a very good way of finding out how sure the owner is of his title. Usually sellers, who express apprehension about issue of public notices, have something up their sleeve or hidden in the closet.
In a case concerning a prime property in a metro city in India, as many as 80 objections were, not long time ago, received to a Public Notice. Cousins, parties having rights under memoranda of understanding, agreements or power of attorney, all laid a claim: a real labyrinth.
Brokers in Mumbai cry themselves hoarse announcing 48% of the buildings do not have occupancy certificates (OC). The Municipality is not bound to issue OC if things are not in order. The builder may not have made provisions for electricity or water supply. The consequences of occupying any premises without an OC are on person in actual use, occupation and possession.
In case of under-construction flats, at the very least, check the intimation of disapproval (IOD), lay-out plans, and the commencement certificate (CC). The former being one of the first building sanctions and the OC being the last one. Just obtaining these is not sufficient, identify thereon your property and understand them. It’s no neuro science.
Under the provisions of Maharashtra Ownership of Flats Act, 1963 (MOFA) a developer is bound to produce all of the above together with a title certificate from an advocate.
Interestingly, Maharashtra Housing (Regulation and Development) Act shall replace Maharashtra Ownership of Flats Act, 1963. Nevertheless, do not hesitate to exercise what’s rightfully yours.
Whilst perusing the documents of title-agreement of sale, sale deed and deed of apartment, trace the root of title right down to your seller without getting intimated by the legalese.
Ensure that the share certificate issued by the co-operative housing society (CHS) reflects the name the owner. Look for restrictive covenants in the bye-laws of the CHS or condominium.
These are just a few tips that may be of good use. In the meantime, the author is still hoping that Moneylife would soon cover real estate and art, as a form of investment, the way it covered bonds and stocks. Those who agree may kindly paste a comment and let the cry be heard. J
(Divya B Malcolm is a senior associate with Kochhar & Co. The views expressed are her own and not to be construed as legal advice.)
In absence of a distinguishing factor, the underlying principle of class action gets frustrated and nullified. The Companies Act, 2013 confers rights upon members and depositors to initiate two proceedings with regard to the same subject matter. This is second part of a three part series
Who can sue for class action?
Section 245(1) of the Companies Act, 2013 now empowers the members, depositors or any class of them to proceed with a class action suit if they are of the opinion that the management or affairs of the company are being conducted in manner that is pre-judicial to the interests of the company or its members or depositors. Section 245(3) further provides for a minimum number of class actioners for perusing a class action as below:
Type of Company
Company with Share Capital
100 members of the Company or 10% of total no. of members
100 depositors of the Company or;
10% of total no. of depositors or;
Any depositor or depositors to whom the company owes 10% of total deposits of the company
Company without Share Capital
1/5th of total no. of members
It is pertinent to note the language of the section to a substantial extent is similar to what has been provided under oppression and mismanagement under section 241 of the Act. Section 241 provides that a member can move an application for oppression and mismanagement if “the affairs of the company have been or are being conducted in a manner prejudicial to public interest or in a manner prejudicial or oppressive to him or any other member or members or in a manner prejudicial to the interests of the company”. Thus with respect to members, one can see that Act the outlines of two sections are not distinct from each other.
The Act incorporated class action provisions to provide members with additional rights against abuse of powers by the company. The member now thus has a right to proceed under section 241 as well as section 245 separately and distinctly, if the affairs of the company are being conducted in a manner prejudicial to the interests of the company. Thus, the section apparently gives the member a right to initiate two proceedings on same subject matter. This is diabolically opposed to the principle of res judicata as provided under Civil Procedure Code, 1908.
Also, the Act empowers only members and depositors to proceed under class action. It has grossly failed in its attempt to include creditors, debenture holders and other stakeholders of the company.
Section 245 further provides that an application for class action suit can be filed before the Tribunal “on behalf of the members or depositors”. Will this apparently mean that such an action is brought on behalf of all the members? If the answer were in affirmative, would the damages be awarded to the class as whole or to only those who brought the action? If the answer were negative, then how would the same classify as “class” with respect to class action.
Even if one assumes that it included all members, then, it would also include those members who were or might be behind the wrongs complained of. In such a case how would the Tribunal ensure just and proper distribution of monetary compensation. The Act thus grossly fails to reflect upon the above questions and absence of such clear demarcations would only result in confusion having wide implications.
Who can be sued for Class Action?
As per the provisions of section 245 (1) (g) a class action suit can be brought against:
Upon perusal of the section, one finds that class action suits under the Act can be brought against third parties also. It will thus be very difficult to escape the provisions by the professionals and to take any stand as the words used in the clause have a very wide meaning and includes any wrongful act or conduct on part of professional.
This is prima facie in violation with the principles of privity of contract, which states that only parties to the contract can sue each other to enforce their rights or claim damages. It is pertinent to note here that there exist separate contracts- one between the members and the company and the other between the company and the consultant/expert. There exists privity between the member and the company and between the company and the member.
Even if one was to assume that the members being the beneficiaries of such contracts had the authority to bring an action in equity, the same would not hold good under common law principles as such actions in equity are always claimed through a party to the contract who either holds the position that of a “cestuique trust” or that of a principal suing through an agent. What appears instantly from the perusal of the section is that members and depositors are directly claiming damages from third parties rather than claiming through the company.
This indeed is opposed to common law principles and would thus create confusion with respect to implementation of the section.
The intention to introduce class actions was to provide an additional tool in the hands of the members and to recognise the same as a supplementary remedy. But sadly the provisions have been introduced without even comprehending as to how it would accommodate the already existing remedies under common law. This surely comes across, as work of haste, which will eventually open the Pandora’s box and will give rise to serious analytical and interpretational issues.
Where Class Action Suits are instituted?
Section 245(1) provides that all class action suits shall be instituted in the Tribunal. Tribunal as defined in Section 2 (90) of the Companies Act, 2013 means the National Company Law Tribunal.
The Tribunal being a quasi-judicial body shall consist of a President and such number of judicial and technical members as the Central Government may deem necessary. All appeals from an order of the Tribunal shall lie before an Appellate Tribunal and appeals from order of the Appellate Tribunal shall lie before the Supreme Court.
Civil courts under section 430 of the Act have no jurisdiction to entertain any proceeding in respect to any matter, which the Tribunal or the Appellate Tribunal is empowered to determine. The section further provides that any court or any other authority in respect of any action taken or to be taken by the Tribunal shall grant no injunction.
It is very surprising to note here that the jurisdiction of a quasi –judicial body has been empowered tremendously to the extent that it has ousted the jurisdiction and powers of a judicial body per se.
How can class action suits be instituted?
Sections 245(4) and 245(5) provide for procedure to be followed while instituting the class action suits under the Act.
As per section 245(4) the Tribunal while considering a class action shall take the following into account –
• Whether the member or depositor, while seeking relief under class action, is acting in good faith;
• Any evidence as to the involvement of any person other than directors or officers of the company.
• Whether the cause of action is one which the member or depositor could pursue in his own right rather than through an order under this section;
• Any evidence before it that corroborates that the members or depositors of the company have no personal interest in the matter being proceeded as class action;
• Where the cause of action is yet to occur, the Tribunal shall duly consider all acts and circumstances that would be likely (i) authorised by the company before it occurs; or (ii) ratified by the company after it occurs;
• Where the cause of action has already occurred, the Tribunal shall duly consider and evaluate all acts and circumstances that would be likely ratified by the Company.
Once the Tribunal admits an application as class action, the following procedure shall in terms of section 245(5) be followed:
• A public notice shall be served to all the members or depositors of the class;
• All similar applications in any jurisdiction shall be consolidated into a single application and a lead applicant shall be appointed from amongst them;
• No two class actions for the same cause of action shall be allowed; and
• The company and any other person responsible for the oppressive act shall pay for the cost and expenses connected with class action suits.
Section 245(5) provides that the costs and expenses in connection with class action suits shall be borne by the company and the person responsible for the “oppressive act”. It is pertinent to note here that the section casts the liability to bear costs of application upon the person who does or is responsible for the oppressive act. This could possibly mean that the member or depositor who is moving the application is aggrieved of an oppressive act. Insofar as the member is concerned, they already have a right to proceed under section 241 for oppression. This section, thus grossly fails to demarcate or distinguish circumstances when a member can proceed under section 241 and when can reliefs be sought under section 245. In absence of such distinguishing factor, the underlying principle of class action, which aims at reducing multiplicity of suits, gets frustrated and nullified. The Act thus confers rights upon members and depositors to initiate two proceeding with regard to same subject matter.
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On Tuesday, Moneylife ran a story on how touts are making a fast buck through Tatkal online appointments for passports. Within 24 hours a VP of TCS, which is in PPP with the government’s Passport Division, promises to address the issue
The story on how passport agents in Pune are indulging in mass grabbing of Tatkal online appointments resulting in the passport applicant unable to get his appointment online for days on end was published in Moneylife on Tuesday.
In less than 24 hours, the story has had a great impact with Tanmoy Chakroborty, vice president & head for government industry solutions unit (ISU) at Tata Consultancy Services (TCS), which is in public-private-partnership (PPP) with Passport Division of the Ministry of External Affairs (MEA). He assured Moneylife that he would investigate into the matter with immediate effect by investigating into the volume flow and peaks, which can be monitored through the computers of the Passport Seva Kendra (PSK).
In an email sent to this writer, Chakroborty stated, “We will certainly work with RPO Pune and the MEA to analyse all that you have mentioned and to look at the pain points of Applicants in Pune.”
“We always take feedback from any one seriously and we will once again look at the patterns of volume flow and peaks and troughs in Pune in conjunction with MEA and revert with the steps if any that will be taken to further make it a pleasing experience - the application for a passport,” he added.
Chakroborty stated that ever since TCS has begun using technology to make the passport applicant’s experience smooth-sailing, many passport agents are out of business and are pursuing other means of livelihood. He says, “Passport Agents perhaps is passé as the system deployed offers total transparency and I understand the such passport agents, who used to operate in the past-- prior to our system being deployed--- are rapidly looking for alternate employment as there is nothing left for them in the passport application process in India!”
He also mentioned in his email that ever since TCS has entered the scenario, it has successfully served over 1.2 crore applicants, all over India. Adding that he would look into the Tatkal appointment scam in Pune seriously, he wrote, “Since we have introduced the payment over the portal system the wait time in almost all the PSKs has disappeared which means that more bonafide applicants are getting appointments within a reasonable period of time .’’
Chakroborty sent the email in response to the writer’s mail after the story was published in Moneylife on Tuesday. The email stated, “Thanks to your persistent efforts, most of the problems that passport applicants used to face before our campaign in March 2013 have been eased, as they have been addressed by you very effectively. However, since the last couple of months, online appointments for Tatkal passport have become a big issue as most of the applicants do not get their online appointment for several weeks. This has nullified the value of procuring Tatkal passport which is to be issued between 1 and 7 days.
The story in Moneylife gives an insight of what the applicant goes through when he tries to get the appointment. Would be very grateful if you could check where the loophole is and how is it that a passport agent can give Tatkal appointment in 24 hours whereas a citizen going by the legal way cannot get it for weeks on end. Looking forward to hearing from you on this issue.”
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)