Padma
20 December 2010 at 19:24
Respected Members
Please advise me on the following
My brother booked a flat in March 2006 with a reputed builder by taking a bank loan ( bank authorised by the builder)
He was paying the instalments even before they became due. However, due to the miscommunication between the subordinate staff , a few of the staff started demanding instalments from my brother even before they became due and when we went in person to ask the staff why they are asking money when they are not due, they threatned us to surrender the flat (because the flat cost in that area had risen by 50% since the time we booked and the initial commission was taken by a staff who no longer existed in the company at that time - october 2006)
Hence from the next payment - november 2006 , my brother sent all the payments through BANK CHEQUE and then through RPAD. All of them were acknowledged and the payments were realised by the builder's staff but they did not construct our flat alone and left it halfway (without doing the interiors), but the other flats in the said place was constructed. When we approached the Managing Director of the company, he also refused to further talk to us after realising the entire money (around 25 lakhs) We were paying the EMI to the bank without any due and without our flat being constructed. Our flat was due to be handed to us in the month of September 2007, but since our flat remained as it is, we sent a letter to the MD, asking politely as to when the flat will be handed to us and sent subsequent remainders till March 2008. Most of the houses were occupied in that area whereas our house was not constructed. In june 2008, the builder's company filed 2 cases - one against my brother and one on my mother.
Against my brother it was a civil case - wherein the builder mentioned that my brother did not pay instalments to him on time, hence he did not construct the flat and said that there has been a increase in the construction material cost hence my brother has to pay the escalated cost of RS 5 lakhs so that he can construct the house, else he will give back the amount already procured from my brother towards instalments after deducting the handling charges.
Against my mother it was a criminal case - wherein it was said that my mother shouted at the builders office on a particular date and said that her son (my brother -f lat owner) of the flat will not pay the instalments and they have to construct the house and mentioned that my mother used abusive language on the staff of the builder and because of which they were stunned , shocked etc. Also many statements made on the criminal case was relating to the non payment of instalment by my brother - which is untrue and the main reason for filing such a criminal case is so that we will surrender the flat to the builder and they can sell the flat for a higher amount - that is for 50 lakhs or more than that.
We got STAY from the HIGH COURT for both these cases during AUGUST 2008.
Subsequently, we presented a petition in the HIGH COURT and proved that
We have paid all the instalments on time
We have not defaulted any payment
There is no clause mentioned for escalated construction costs in the construction agreement
We have paid in excess to the builder but it is vengeance on the part of the subordinates that this case has emerged and requested that the flat be constructed as per the agreement, excess amount be refunded back to us, then the request for giving the documents concering the flat be given to us, and finally the false criminal case be withdrawn by the builder.
We won in our civil case, and as per the advise of the honorable judge, the builder constructed our flat and handed the documents to us. But the excess amount was not refunded to us. We did not ask the amount from the builder. We got possession of the flat in DECEMBER 2008.
The CIVIL CASE is over but the CRIMINAL CASE is continuing
The builder's representative told us that he will withdraw the criminal case , but till now he has not withdrawan the case or vacated the stay that we got in August 2008.
Once in every 2 months , the criminal case comes for hearing and my mother appears for the case at the magistrate court.
Since we have the stay, she presents a memo in person to the magistrate and the case gets adjourned.
In the last hearing the magistrate himself advised my mother to inform all these facts in the high court and get the criminal case quashed so that he can end the case in the Magistrate Court also.
Moreover, for the past 1 year the complainant is not coming to the court and only his advocate is coming. The complainant is the authorised signatory of the builder and we heard that he has left the company.
Also this is a private case.
We have proofs to state that the statements made in the criminal case is false.
For quashing the false criminal case, now what should we do?
Can my mother file a petition in the high court for the same as PARTY IN PERSON?
If so, after explaing the facts and validating the same, how long will this take to get over?
Or will going to LOK ADALAT solve this issue.
What is the procedure to approach the same?
Also the other party - the builder or his representative will not come to the lok adalat. But we have facts and proofs to state all this is false and has happened because of the subordinate of the builder. Can one party go to lok adalat in the given circumstances?
Or is there any other alternative mode to solve this case
Please advise
Thanks,
Padma
Anonymous
07 December 2010 at 14:15
Do women lawyers appear only for women or will they appear for men also (to obtain divorce) in family court?
Anonymous
06 December 2010 at 12:59
Respected Experts,
This has relevance to my previous question on when can a husband who has filed for divorce when his wife was pregnant claim for the child born and whether he can file a petition for the same, irrespective of th fact that he did not take care of the wife or his unborn child (during pregnancy) and also after pregnancy.
NOTE: The wife does not wish to give divorce or ask for maintenance but wants to rejoin her husband.
It is understood that the experts have responded to the same by saying that eventhough a petition can be given by the husband for the same, but the same will not be accepted by teh court,as till the age of 7 the natural guardian of the child is the mother .
Given the above situation, if the husband wants a child LESS THAN ONE YEAR to be brought to the court (Family Court during the conduct of the divorce proceedings ) and he wants to have the child, can he obtain orders to have the child (within the court or anywhere he wants with the permission of the court)
Experts, need your opinion on the same
Request you to please analyse the above situation in the light of the facts mentioned above both in the aspect of humanity (that no care was given to the pregnant woman, unborn child and also the new mother and new born till date) and also as per law (he is the biological father)
Experts have given opinion that the visitation rights can be given
I have one more question on the above :-
What should be done, if there is an order passed by the judge to bring a new born baby to the court and give to the husband
The case here is the baby is suffering from cardiac ailment - congenital heart problem and requires open heart surgery and is very small and should not be taken to a place which is prone to infections
Further the judge who has passed such an order did not give a chance to the wife to explain the case to him and also he does not know the facts of the case (As he is a new judge) facts being - wife was sent out of the house during pregnancy, divorce was applied when the wife was in her 4th month of pregnancy and wife wants to live with her husband and has come to the court for 10 hearings during her pregnancy for counselling to rejoin her husband. and husband has not taken care of his wife or unborn child and also post delivery. No emotional, monetary, moral support was given to the wife by the husband instead he has made her suffer during the entire pregnancy. Also, the wife has tried several ways to communicate to her husband during pregnancy and after that too, to the extent of going to his house, but her inlaws have refused to permit her to enter into the house.
What i want to know is - wife is willing 100% to rejoin her husband and she will not file any allegations on her husband or his parents or relatives , but the fact is the relatives and parents of the husband want to do something to the child (that might harm) this is without the knowlege of the husband and they are using the husband as a tool to take their vengeance on the girl and her baby.
The judge who does not know the facts , has passed an order to bring a baby less than one year to the court to be given to the husband - when the baby is still being nursed by the mother. what are the remedies to the girl.
She wants to rejoin her husband but not with the same illwill present in him. please advise the remedies atleast by which she can protect her baby from being given to her husband in a public place.
The wife is willing to have her husband either take her separetely with him with the kid or by asking him to come to her parents house to see the kid and hte husband is refusing either of these two as his parents do not want him to be a husband and a father and have inculcated their thoughts onto him.
Please advise
Anonymous
05 December 2010 at 21:40
Respected Experts,
This has relevance to my previous question on when can a husband who has filed for divorce when his wife was pregnant claim for the child born and whether he can file a petition for the same, irrespective of th fact that he did not take care of the wife or his unborn child (during pregnancy) and also after pregnancy.
NOTE: The wife does not wish to give divorce or ask for maintenance but wants to rejoin her husband.
It is understood that the experts have responded to the same by saying that eventhough a petition can be given by the husband for the same, but the same will not be accepted by teh court,as till the age of 7 the natural guardian of the child is the mother .
Given the above situation, if the husband wants a child LESS THAN ONE YEAR to be brought to the court (Family Court during the conduct of the divorce proceedings ) and he wants to have the child, can he obtain orders to have the child (within the court or anywhere he wants with the permission of the court)
Experts, need your opinion on the same
Request you to please analyse the above situation in the light of the facts mentioned above both in the aspect of humanity (that no care was given to the pregnant woman, unborn child and also the new mother and new born till date) and also as per law (he is the biological father)
I have one more question on the above :-
What should be done, if there is an order passed by the judge to bring a new born baby to the court and give to the husband
The case here is the baby is suffering from cardiac ailment - congenital heart problem and requires open heart surgery and is very small and should not be taken to a place which is prone to infections
Further the judge who has passed such an order did not give a chance to the wife to explain the case to him and also he does not know the facts of the case (As he is a new judge) facts being - wife was sent out of the house during pregnancy, divorce was applied when the wife was in her 4th month of pregnancy and wife wants to live with her husband and has come to the court for 10 hearings during her pregnancy for counselling to rejoin her husband. and husband has not taken care of his wife or unborn child and also post delivery. No emotional, monetary, moral support was given to the wife by the husband instead he has made her suffer during the entire pregnancy. Also, the wife has tried several ways to communicate to her husband during pregnancy and after that too, to the extent of going to his house, but her inlaws have refused to permit her to enter into the house.
What i want to know is - wife is willing 100% to rejoin her husband and she will not file any allegations on her husband or his parents or relatives , but the fact is the relatives and parents of the husband want to do something to the child (that might harm) this is without the knowlege of the husband and they are using the husband as a tool to take their vengeance on the girl and her baby.
The judge who does not know the facts , has passed an order to bring a baby less than one year to the court to be given to the husband - when the baby is still being nursed by the mother. what are the remedies to the girl.
She wants to rejoin her husband but not with the same illwill present in him. please advise the remedies atleast by which she can protect her baby from being given to her husband in a public place.
The wife is willing to have her husband either take her separetely with him with the kid or by asking him to come to her parents house to see the kid and hte husband is refusing either of these two as his parents do not want him to be a husband and a father and have inculcated their thoughts onto him.
Please advise
Anonymous
02 December 2010 at 22:25
If a husband and wife were seperated when the wife was pregnant and the husband has filed for divorce , and does not communicate or take care of the wife and his child during her pregnancy and after that also.
The wife does not wish to give divorce.
In the above circumstances, after the birth of the child,
1. Can the husband, ask for the child through a petition to the court?
2. When can the husband ask - that is what age of the child can the husband ask for the child ?
Under which section of the family courts act or hindu marriage act are the provisions under these covered
Thanks
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QUASH / Discharge PETITION
Dear Experts
I had asked a question previously but since it is very lengthy i am asking the same in few words / questions. Request your urgent help on this
I want to know how to deal with a private criminal case, for which i have obtained STAY and the Complainant has not vacated the STAY because it is based on false allegations and has arisen due to vengeance - The same can be proved by me. I am attending the Court once in every 2 months since the time i got the STAY and the case is being adjourned to the next date by the magistrate - when i present the STAY ORDER. This is happening for the last 2 years
NOW, i want to QUASH or CLOSE the criminal case - What is the procedure ?
I have heard through a friend that there is something called QUASH PETITION or DISCHARGE PETITION - but i am not able to get more information on this
PLEASE HELP ME - How to end this case?
WHAT STEPS SHOULD I FOLLOW ?
Thanks
PADMA