WHAT IS ENCUMBRANCE ?

BEFORE PURCHASING PROPERTY OR ENTERING INTO LEASE AGREEMENT OR RENT AGREEMENT YOU SHOULD ENSURE THAT THERE ARE NO ENCUMBRANCES ON THE PROPERTY IN QUESTION!

Encumbrance means a liability which burdens the property, for example, lease, mortgage, easement, restriction, covenant, rent charge etc.  Encumbrances which can be carved out of ownership, generally are securities, leases, servitude‘s, trusts etc.  It is generally a burden or charge upon the property.

In the instant case: AIR 2007 Kerala 114 the Hon’ble High Court of Kerala [k.s.Radhakrishnan acting c.j. and justice Antony dominic] held that:

By virtue of Securitization Act there is no necessity of the Bank resorting to provisions of Rent Control Act for evicting the tenant.

The word encumbrance enumerated in Rule 9(9) of Securitisation Rules cannot be given a restricted meaning. As lease is an encumbrance over the property, In any view the borrower is bound by the terms and conditions stipulated in declaration executed by him in favor of Bank undertaken that he would not lease out the property.  Contrary to the said stipulation the tenant was put in possession and therefore by virtue of Securitization Act there is no necessity of the Bank resorting to provisions of Rent Control Act for evicting the tenant.  Securitisation Act has got overriding effect over the Kerala Buildings(Lease and Rent Control) Act and parties are governed by the Securitisation Act and not by the Rent Control Act.  The authorized officer is to deliver the property to the purchaser free from encumbrances in terms of Rule 9(9). Occupants are not to be physically dispossessed at the time of issuing notice under section 13.  The physical possession can be taken by the Bank by following the procedure laid down in Section 14 or after the sale is confirmed.

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Likewise the Lease,  Lease is therefore an encumbrance over the property.  In any view the borrower is bound by the terms and conditions stipulated in declaration executed by him in favor of Bank undertaken that he would not lease out the property.

BUYERS BEWARE! KNOW MORE ABOUT CONSUMER PROTECTION ACT- ESTABLISHMENT OF CONSUMER REDRESSEL FORUM WHO IS A CONSUMER? – FILING COMPLAINTS PAYMENT OF COURT FEE ETC. AND PROVING DEFICIENCY IN SERVICE UNFAIR TRADE PRACTICES ETC.

Consumer Protection Act 1986 is An Act to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers’ disputes and for matters connected therewith.

Few real life situations wherein the court has held that there is real defect/deficiency in service and awarded  compensation/replacement/allotment etc€¦€¦..

DEFICIENCY IN SERVICE BY: DEVELOPMENT AUTHORITY

This is a case wherein there was a delay in allotment of plot Authority thereby directed to allot alternative plot in lieu thereof in any other sector The Court held, the price of alternate plot to be charged from allottee should be at original rate which was prevailing at the time of original allotment. [for more details kindly refer 2008(4) ALJ 380]

DEFICIENCY IN SERVICE IS MANUFACTURING DEFECT:

The Vehicle in question started giving trouble within one month of its purchase.  Necessary parts were required to be replaced.  Consumer€™s request to replace vehicle with new one was not acceded to hence he left vehicle at workshop.  In such case the court held that the principle of €˜res ipsa loquitor€™ would be applicable and €˜facts would speak themselves€™ and there would be no need to refer the vehicle to third party for opinion.  As the multinational company has stopped manufacturing that model of vehicle, no directions for replacement of vehicle could be given.  The Dealer and the manufacturer were directed to refund the cost of the vehicle together with interest. [2008(4)ALJ 108]

DEFICIENTY IN SERVICE -  MEDICAL NEGLIGENCE:

Patient suffering from diarrhea admitted to hospital.  Doctor administered Isolyte P-01 along with saline water without testing whether medicine may cause reaction.  There was blackening of hand resulting in restrictive movement of arm and fingers and which subsequently had to be amputated as it was affected by gangrene.  Patient became handicapped for life.  Doctor held guilty of medical negligence.   [2008(4) ALJ  327]

To protect the interest of the Consumers and redress their grievances following redressal agencies are established:

(a) A Consumer Disputes Redressal Forum to be known as the “District Forum” establishment by the State Government in each district of the State.

(b) A Consumer Disputes Redressal Commission to be known as the “State Commission” established by the State Government in the State
(c) A National Consumer Disputes redressal Commission €˜National Commission€™ established by the Central Government.

Courts in which the Complaints can be filed :

If the cost of goods or service and compensation asked for is up to Rs. 20.00 lakhs then District Forum

More than Rs. 20.00 lakhs and up to Rs. 1 crore then State Commission

More than Rs. 1 crore then National Commission

Court Fees prescribed to file a complaint:

Compensation demanded Court Fee

Postal Order or Demand Draft

Upto Rs.1,00,000/-                          Rs.100/-

Above Rs.1,00,000/- to Rs.5,00,000/-                        Rs. 200/-

Above Rs.5,00,000/- to Rs.10,00,000/-                      Rs. 400/-

Above Rs.10,00,000/- to Rs.20,00,000/-                    Rs. 500/-

Above Rs.20,00,000/- to Rs.50,00,000/-                  Rs. 2000/-

Above Rs.50,00,000/- to Rs. 1 crore                       Rs. 4000/-

FAQS :

WHAT IS A €˜COMPLAINT€™?

“Complaint” means any allegation in writing made by a complainant.

What is unfair trade practice?

In the below mentioned situation the trader/service provider is said to have engaged or presumed to have engaged in €˜unfair trade practice€™:

(i) An unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider if:

(ii) The goods bought by the consumer or agreed to be bought by him suffer from one or more defects;

(iii)Service hired or availed of or agreed to be hired or availed of by the consumer suffer from deficiency in any respect;

(iv) a trader or the service provider, as the case may be, has charged for the goods or for the service mentioned in the complaint, a price in excess of the price:

(a) fixed by or under any law for the time being in force

(b) displayed on the goods or any package containing such goods

(c) displayed on the price list exhibited by him by or under any law for the time being in force

(d) agreed between the parties

(v) goods, hazardous to life and safety when used are being offered for sale to the public

(A) in contravention of any standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force

(B) if the trader could have known with due diligence that the goods so offered are unsafe to the public

(vi) service which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by the service provider which such person could have known with due diligence to be injurious to life and safety.

WHO IS A €˜CONSUMER€™?

Sec.2(d) Consumer Protection Act 1986€ “Consumer” means any person who : -

(i) Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose

Explanation. For the purposes of this sub-clause “commercial purpose” does not include use by a consumer of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood, by means of self-employment;

WHAT IS CONSUMER DISPUTE?

“Consumer dispute” means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the

Complaint;

WHO IS A €˜COMPLAINANT€™?

Sec.2(b) of Consumer Protection Act 1986: “Complainant” means -

(i) A consumer; or

(ii) Any voluntary consumer association registered under the companies Act, 1956 (1 of 1956), or under any other law for the time being in force; or

(iii) The Central Government or any State Government, who or which makes a complaint;

[(iv) One or more consumers where there are numerous consumers having the same interest;

(v) in case of death of a consumer, his legal heir or representative.

who or which makes a complaint;

WHAT IS A €˜DEFECT€™?
"Defect" means any fault, imperfection or short coming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods

WHAT IS DEFICIENCY?

"Deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service

JURISDICTION [EXTENT OF EXERCISING POWER] OF THE DISTRICT FORUM.

(1) Subject to other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the Compensation if any, claimed does not exceed rupees twenty lakhs

(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, -

(a) The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office, or personally works for gain; or

(b) Any of the opposite parties where there are more then one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally works for gain, as the case may be, acquiesce in such institution; or

(c) The cause of action, wholly or in part arises.

JURISDICTION OF THE STATE COMMISSION.

Subject to the other provisions of this Act, the State Commission shall have jurisdiction -

(a) to entertain -

(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore; and

(ii) appeals against the orders of any District Forum within the State; and

(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.

JURISDICTION OF THE NATIONAL COMMISSION.

Subject to the other provisions of this Act, the National Commission shall have jurisdiction -

(a) to entertain -

(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore and

(ii) appeals against the orders of any State Commission; and

(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has  failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.