Monday, 20 November 2017

Warning! Lodha Flat Buyers may face Income Tax Nightmare

Mumbai, 20th November 2017: Buying a flat from Lodha Group can land you in deep trouble with the Income Tax Department. The small print in Lodha Group's Application Form compels you to not deduct TDS on your installments as required by law. Lodha's sales staff and Application Form illegally compels you to delegate your legal responsibility to Lodha. Such delegation can land you in deep trouble. Not only will you invite penalties from the Income Tax authorities, but worse, it can lead to scrutiny of your tax returns. Nobody in his right mind wants to invite I-T scrutiny through careless actions, but that's what can happen to you if you blindly trust Lodha's paperwork! 


As a flat purchaser, you have a statutory obligation under section 194-IA of the Finance Act to deduct tax and furnish details of your property transaction to the Income Tax department. There are no exemptions. Read this article to understand your obligation as a flat-purchaser. There is no provision allowing you to transfer this legal obligation to the builder!

TDS needs to be deducted each time while paying the installment, and it needs to be deposited by way of return-cum-challan (Form 26QB) within seven days of the following month of making the payment. Failing to do so can attract late filing interest of 12 % per annum, plus a penalty of upto Rs 1 lakh under Section 271H.

For example, if the consideration value of your flat is Rs 2 crore, then TDS @ 1% would  be Rs 2 lakh. Failing to deduct and remit this amount yourself can make you liable to pay late filing interest of Rs 2,000 for every month of delay.  Here is a specimen of the I-T notice you are liable to receive.

It is possible that Lodha's accountants will pay the TDS on your behalf, but this convenient arrangement is at your risk, not Lodha's. If Lodha's CAs default, then you will receive the notice and pay the fine. Moreover, Lodha may refuse to allow the TDS deduction, with the result that you will pay the TDS amount and fines from your own pocket!

WHAT LODHA'S APPLICATION FORM SAYS:

Check out page 5 of Lodha Group's obnoxious Application Form. It says this:
"The Applicant has authorized Lodha to pay TDS on his behalf. The Applicant acknowledges that the TDS will be payable by the Company only in the name of the Primary Applicant. In the event the applicant wishes to pay the applicable TDS on his own, a written request to the effect shall be given to the company on tds@lodhagroup.com, and thereafter the applicant shall submit the Challans for payment thereof to the Company within 7 days of the relevant due date for payment of TDS, failing which a tracking charge of Rs 1000/- per challan per month shall apply."

WHAT ARE THE IMPLICATIONS?

Firstly, signing the Application Form quietly removes the power of the home buyer to deduct TDS from the amount payable to Lodha. The only acceptable lawful position is that that the buyer will deduct TDS and remit it. Lodha's Application Form makes it the default position that the buyer will NOT deduct TDS, leaving it to the builder to do so. Lodha incites you to commit an offense that will land you in trouble with Income Tax authorities. (Remember, Lodha Group will not face any consequences for this, because it is your legal obligation, not Lodha's!)

Secondly, in the Application Form, Lodha threatens to illegally penalize you @ Rs 1000 per month per challan if you insist on deducting and paying the TDS yourself, if you are not prompt in giving the challan to Lodha. This fine is gratuitous, because the law puts the onus on you to do so promptly! The law states, "Every person responsible for deduction of tax under section 194-IA shall furnish the certificate of deduction of tax at source in Form No. 16B to the payee within fifteen days..."
 
Thirdly, the motive for Lodha's actions appear to be illegal. The question arises: why is Lodha going out of its way to coerce, threaten and dissuade flat-buyers who wish to fulfill their legal obligation? The most plausible explanation is that Lodha Group is trying to avoid disclosing certain key facts and figures to the flat-buyer and possibly, the Income Tax department also. Also, it is likely that Lodha is partially evading taxes in this way. As the clause in the Application form is underhand and sneaky, the motives appear to be illegal. Income Tax authorities should carry out a probe to find out what Lodha is hiding!

ISSUED IN PUBLIC INTEREST
Krishnaraj Rao
9821588114
krish.kkphoto@gmail.com

Thursday, 16 November 2017

How Lodha Group's "Application Form" Traps Unwary Customers

Mumbai, 16th November, 2017: Lodha Group's Application Form is like a bear-trap for prospective flat buyers. When you are preparing property papers and legal documents, every single word has to be clearly understood and agreed upon. But Lodha's customers are forced to make fatal blunders in the paperwork right in the beginning. The consequence of those blunders is that Lodha Group gets a crushing grip on your balls, which it squeezes whenever it wants. If you are a Lodha customer who tried to stand up for your own rights, you may have experienced this crushing grip.


Lodha Group's insidious Application Form is not declared before MahaRERA. Lodha Group insiders never share a copy, but we have procured it. Click here to download. These are the papers you are sweet-talked into filling up in the euphoric afterglow of a site visit.

 

UNDERSTAND HOW THE FORM WORKS AGAINST YOU:

1. The Application Form reverses who is the promisor and the promisee. Lodha's Application Form turns the factual position upside down -- the factual position that Lodha has built many flats, wants to sell them and is therefore running a sales office and a website, and is paying salaries and commissions to sales staff, channel partners and estate agents. In the language of law, Lodha is the "promisor" and you are the "promisee", and Lodha has to make a proposal, to which you are the assenting party. Section 2 of Indian Contract Act. Section 2(d) states, "When, at the desire of the promisor, the promisee or any other person has done... does... or promises to do... something, such act... or promise is called a consideration for the promise". In the natural order of things, Lodha has to promise to deliver a flat of specific dimensions, at a specific geographic location, with specific common amenities such as clubhouse, on a specific date. But... surprise, surprise! Lodha Group studiously avoids making a single specific promise, opting for only vague and dreamy communications in advertisements, brochures etc. When you fill up the Application Form, you become the promisor and Lodha becomes the promisee; you propose to buy the flat and promise to make payments according to a strict schedule, and Lodha assents to your proposal. 


It says here: "This Application constitutes an offer by the Applicant to acquire a Unit in the Building/Project as mentioned in this application form, on the terms and conditions contained herein." So who is the promisor? You are!

Who mentions the Unit and its specification? You do. Lodha doesn't mention anything. This is crucial. Lodha does not inform you about the carpet area of the flat you propose to purchase; instead, you inform Lodha about the carpet area of the flat, and the date of possession, in your own handwriting. If you find out later on that the carpet area is much less, or that the possession is delayed, how can you blame Lodha? Lodha didn't write the carpet area or the date of possession, you did!


Look at the wordings:


At the bottom of the first page, in hard-to-read small print, is the most important part of the Application Form, which you probably never read before signing:

 
It says, "I confirm that the details provided by me in this Application Form are true and correct. I have read and understood the terms and conditions stated herein and the same are acceptable to me and I shall be bound by the same. I further confirm that I have read and understood the terms and conditions of the Agreement to Sell to be executed pursuant to acceptance of this Application and allotment of a unit to me."

This is important. The majority of Lodha's customers sign without reading and understanding the full weight of their meaning, and these very words come back to haunt them later on.

2. The Application Form allows Lodha Group to tell you lies without any legal consequences. Let us go back and read the first point of terms and conditions again.

It says here: "The Application and the terms hereof shall supersede all prior discussions/correspondences/letters/emails (written or otherwise) between the Applicant and the Company." What does that mean? It means that the Company i.e. Palava Dwellers Private Limited, is not bound by any misinformation and false assurances that the sales staff, estate agents, channel partners, brochures and advertisements gave you orally or in writing, nor can it be held legally liable for any of it. Essentially, this clause sets the company free to misinform and misguide you before you sign the Application Form, and even afterwards.

3. The Application Form allows Lodha Group to act like a loan shark, without any legal justification whatsoever. The terms and conditions force you to submit to extreme financial stress. How much of a financial stress? Look at this payment schedule:



Within six months of booking, you have to pay 95% of the booking amount, regardless of the state of readiness of the flat you are buying. The payment schedule is not based on completion of slabs, etc. Why? Because your Application Form made you take on such an overconfident commitment! See here:



So what happens if you have taken a home loan, and your bank delays in disbursal? Will Lodha take a reasonable view of it? No. Read point 3 in the notes below the Payment Schedule in the Application Form. It says, "In the event that the Applicant approaches a bank/financial institution for availing a loan, any delay by such bank/financial institution in making the payment as per the Payment Schedule shall attract interest at as per the terms of this Application from the date they fall due till realization of payment and shall constitute an event of default."

What is the consequence of "an event of default"? Let us see what the terms and conditions say. Para no. 3.5 states: "In the event that the Company rejects the application on account of non-receipt of Booking Amounts or any part thereto... all amounts paid towards Booking Amount I and II (or 10 per cent of the Total Consideration, whichever is higher) or part thereof shall stand forfeited." In other words, in case you fail to pay 10% of the consideration value within 21 days of booking, you will forfeit whatever you have paid till that date, to the extent of almost 10 per cent. In fact, para 3.5 says that even if you have paid the entire booking amount of 10%, but you do not "abide by the terms and conditions mentioned in the Application Form", you may forfeit the booking amount. See the small print below.  

But what happens if the "event of default" is after you have registered the Agreement to Sell? In that case, Lodha will charge you "administrative charges" of at least Rs 20,000/- for each instance of default, in addition to about 9% interest on the overdue amount. The administrative charges can be revised upwards in April 2018. Dishonoured cheques will further attract "cheque-bouncing charges equivalent to 2.5 per cent of the cheque in question.

From where does Lodha Group derive the power to impose such absurd conditions on you? From you, Mr and Mrs Flat-Buyer! From your basic ignorance of law, and your sheepish willingness to sign such one-sided documents, from your unwillingness or inability to read the small print. Signing this Application Form is quite similar to signing your own death warrant. If you sign this document  (about which the Real Estate Regulatory Authority is kept in the dark), it lays the foundation for an inequitable relationship with the builder through an inequitable Allotment Letter and a completely unfair Agreement to Sell.

Supposedly, you are signing the Application Form with full awareness and free will. Read para no. 15:


Did you sign this toxic document with open eyes, Mr and Mrs Flat Buyer? Or did you do it with your eyes wide shut?

There are half-a-dozen other dicey clauses in the Application Form, which we will discuss in another article.

ISSUED IN PUBLIC INTEREST BY
Krishnaraj Rao
9821588114
krish.kkphoto@gmail.com


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Also read: Measure your flat, Lodha Group has cheated you



Monday, 13 November 2017

Measure your flat, Lodha Group has cheated you

13th November, 2017, Mumbai: Our first article, titled Lodha Fiorenza – Misleading RERA, Blindfolding Flat Buyers, reveals how Lodha's sales staff mis-sells the flats to customers and keeps them in the dark by denying them crucial information about the project. Our second article about how Lodha Group is defrauding flat buyers in Carpet Area has been provoking many flat purchasers to ask the right questions. But such is the strength of the LODHA BRAND that people hesitate to believe anything written against Lodha. "This can't be true," they argue. Well, we believe that seeing is believing. So, here is an actual instance of Lodha's carpet-area fraud. Below are plans of flats in Lodha Belmondo that show you clearly how much Lodha is cheating you.

"4Bed Layout (2751 sqft)"

This plan titled "4Bed Layout (2751 sqft)" was emailed by Lodha Group's sales staff. If you total up the dimensions shown in the plan, the measurement is 1815.63 without terrace, and 1936.38 square feet with the terrace. This flat is a 814.62 square feet smaller than what Lodha sales staff claims. But Lodha sales staff and customer relationship managers cheat you by making you write "4BHK 2751 sq ft" in your own handwriting on your Application Form, and sign the page, and affirm that you have written this down after due verification. (The application form is a crucial part of Lodha's strategy for cheating you. More about that in another article!)

"3Bed Luxe (2341 sqft)"

This plan is titled "3Bed Luxe (2341 sqft)" in the email attachment. The actual measurement is only 1520 sq ft without terrace, and 1639 sq ft with terrace. It is 702 sq ft smaller than claimed by Lodha.

"Golf Suite Flat Layout (711 sqft)"
This plan is titled "Golf Suite Flat Layout (711 sqft)" in the email. The actual carpet area measurements are 449 sq ft with terrace and 482.68 sq ft with terrace. This flat is 228.3 sq ft smaller than claimed by Lodha.

Now, is it possible that we are mistaken? Is it possible that these dimensions (711 sq ft etc.) are super-built up area or built-up area? So we asked the sales staff on email, and received a reply that it "would be carpet area as after Maha Rera the government has ruled out build up and super build up." We have proof of all this correspondence.

If you wish to double-check our arithmetic, refer to the step-by-step calculations given below. These calculations have been done by a trained interior designer.


Lodha Group forbids you to officially measure the carpet area of your flat. If you raise a dispute regarding carpet area, Lodha threatens to destroy your interior work as a precondition for resolving the dispute by measuring the carpet area! In almost all Lodha projects, the carpet area mentioned in the agreement are much less than the actual. To prevent this truth from becoming exposed, your registered agreement states that if carpet area is to be measured, the finishes must first be removed at your cost. This means removal of your paint and plaster, skirting, headboards, bathroom wall tiles, and possible damage to flooring also! This toxic clause is found in the "Proforma Allotment Letter and Agreement to Sell" uploaded on RERA website. The clause states:

So, how does Lodha group pull wool over the eyes of MahaRERA? Isn't every builder supposed to compulsorily make a clear declaration of the carpet area of each flat, as well as all details of the project? Well, it turns out that Lodha Group -- like  many other crooked builders -- have already perfected a method of creating confusion. They divide one project into multiple projects and mention the carpet area in ways that customers cannot directly relate to their flats. For instance, Lodha Belmondo is divided into seven projects on MahaRERA website:


Much remains to be written about Lodha's cunning MahaRERA declaration which serves to confuse flat-buyers and outwit MahaRERA.  Lodha's scam isn't limited to carpet area fraud. It has multiple facets, including misinforming the public about the size and nature of common amenities such as clubhouse, golf course, swimming pool and recreation area. More will be revealed in another article!

ISSUED IN PUBLIC INTEREST BY
Krishnaraj Rao
9821588114
Mumbai

Sunday, 5 November 2017

55 Bhagtani Riyo Victims at National Park Meet Sign Open Letter to Chief Justice

Mumbai, 6th November, 2017: About 60 victims of Bhagtani builder's Riyo project gathered yesterday (Sunday) at Sanjay Gandhi National Park at Borivali East, to discuss and debate about the way forward in their legal battle for criminal prosecution of Bhagtani and recovery of their money. Many topics were discussed, including approaching various agencies and seeking advice from legal experts. Also, an open letter addressed to Chief Justice Manjula Chellur was signed by 55 aggrieved persons who are intervenors in Anticipatory Bail Application (ABA) hearings being heard by Justice A M Badar. The letter raises serious concerns about Justice Badar's leniency and dubious orders.

This gathering of cheated flat-buyers signed an open letter to Chief Justice Manjula Chellur, complaining about Justice A M Badar's dubious orders favouring Bhagtani builders.
The signed letter will be dispatched by speedpost later today. Several others, including Chief Justice of India and Law Ministers at the state and center, and advocate general of Maharashtra, have been marked a copy of this letter.

Many aggrieved flat-buyers who were unable to attend the meeting, have said that they will download and send the letter separately in their own name. This word file is for their use.

ISSUED IN PUBLIC INTEREST BY
Krishnaraj Rao
9821588114
krish.kkphoto@gmail.com

Saturday, 4 November 2017

Open Letter to CJ about Justice Badar's zigzag orders in Bhagtani ABA

To
Justice Manjula Chellur,
Chief Justice of Bombay High Court,
Through The Registrar
Bombay High Court,
Fort, Mumbai

5th November, 2017

Sub: Justice Badar's Zigzag Orders in ABA no. 1533 of 2017

Dear Madam,

Hundreds of victims of Bhagtani builders are on an anxiety-inducing roller-coaster ride, thanks to the strange twists and turns in proceedings of ABA no. 1533 in Bombay High Court. Seven orders have so far been passed -- four by Justice Revati Mohite Dere and three by Justice Badar. The latter's orders are increasingly lenient and devoid of judicial logic. Repeatedly, orders are passed based on unverified claims made by the applicants (Dipesh, Mukesh and Lakshman Bhagtani). A blind eye is turned to total non-compliance of anticipatory bail conditions mentioned in applicant Dipesh Bhagtani's affidavit. The most recent order is a cringe-worthy clean chit to the Bhagtanis for expressing the intention to approach National Corporate Law Tribunal (NCLT). From where does the hon'ble bench get the jurisdiction to pass such an order in a criminal matter, and that too an anticipatory bail application?

SEVEN ORDERS PASSED TILL DATE:

23rd August, 2017:
P.C.: 1. By this application, the applicant seeks interim protection till his application is finally decided by the trial Court.
2. Learned Counsel for the applicant states that the applicant's application has been kept on 28th August, 2017 by the trial Court and that there is no interim protection granted to him. He submits that there is Ganpati in his house and hence the applicant be protected only till 28th August, 2017.
3. Learned APP states on instructions,  that  the applicant will not be arrested only upto 28th August, 2017. 
4. In view of the aforesaid, nothing survives for consideration in the present application. The same is disposed of accordingly.
5. It is made clear that the applicant is protected only till 28th August, 2017 and the learned Judge to decide the application, pending before him, on its own merits, uninfluenced by the interim protection granted to the applicant only  upto 28th  August, 2017.
6. All concerned to act on the authenticated copy of this order.
(REVATI MOHITE DERE, J.)

1st Sept 2017:
ORDER: (i) In the event of arrest, the Applicants be enlarged on bail, on executing PR Bond in the sum of Rs.25,000/- each with one or two sureties in the like amount; (ii) The Applicant Nos.1 & 3 shall report to the investigating officer of the concerned police station on8th & 9th September, 2017 between 10.00 a.m. to 12.00 noon.  (REVATI MOHITE DERE, J.)

15th Sept 2017:
P.C.: 1. Stand over to 22nd September, 2017. To be listed on the Supplementary Board. 2. Interim order granted earlier to continue till the next date. (REVATI MOHITE DERE, J.)
[Note: For reasons best known to the hon'ble judge, this order did not report the proceedings, which were as follows: On the matter being called out, the court was addressed by not just the applicants and the additional public prosecutor, but also advocates representing a number of intervenors who were praying for protection of their interests. The judge directed the advocate of the applicants to refund the amounts. She asked within what time frame the refund would happen, to which the builder's advocate sought time for ascertaining the number of investors and the total amount of dues. The judge warned that the said amounts should not be refunded by PDCs, as cheques had been dishonoured multiple times in the past. She asked the advocates of intervenors to submit a list of intervenors and the amounts owed to them on Monday, 18th Sept, 2017, to the advocate of the applicants.]

29th Sept 2017:
P.C.: 1. Learned Senior Counsel for the Applicants in Anticipatory Bail Application No.1533 of 2017, states on instructions, that the applicants will deposit Rs.22 crores, as stated in the FIR in this Court, in 6 equal installments, within six months from today.  He states on instructions, that the first installment will be deposited on or before 12th  October, 2017 and the balance 5 installments, thereafter, within one month each. He submits that if there is a single default, the protection can be vacated. He seeks time to file an affidavit-cum-undertaking of the applicants, stating the same.
2. Learned Counsel for the Interveners states that in addition to the list given by the Investigating Officer, there are other 18 investors who have not been included in the  list.  He submits that there are additional 18 or more   investors and  that he is in the process of filing an intervention application. He states that the amount is about Rs.3-4 crores, which will be in addition to the amount of Rs.22 crores mentioned in the FIR.
3. Mr. Mundargi, states that the applicants are ready to deposit the additional amount of  the additional investors who are not  included in the list tendered by him today, after the list and the amounts are verified.
4. Stand over to 3rd October, 2017 at 3.00 p.m, for tendering the affidavit-cum-undertaking of the applicants. 
5. Interim protection granted earlier to continue till the next date.
(REVATI MOHITE DERE, J.)

PC:­ 1. It is seen that investors, who booked apartment in scheme named as ''Bhagtani Riyo' by JVPD Properties Private Limited could not get possession of their apartment on completion of the project. Therefore, informant Sonal Mehta has lodged the report which has resulted in registration of the crime in question.
2. It appears that the land on which the project was to come up is a ''Gurcharan' land and in view of the law laid down by the Hon'ble Apex Court, the scheme might not have materialised.
3. This Court by an order dated 29th September, 2017 on recording submissions of the learned Senior Counsel appearing for the applicant showing willingness to deposit the entire amount deposited with a builder by investors adjourned the matter to 3rd October 2017 i.e. today for tendering affidavit of undertaking of applicants.
4. In pursuant to this order, applicants have placed on record affidavit of applicant Diipesh Bhagtani. The same is taken on record.
5. In paragraph No.4 of his affidavit, applicant Diipesh has shown willingness to deposit 22 Crores in 6 equal installments. However, the question would be as to how many investors have booked the apartment in the scheme ''Bhagtani Riyo'' and how much amount they have deposited. In addition thereto, it is seen that the agreement entered into between the developer/builder and individual investors contains a Clause No.11 which take care of eventuality of the project remaining in complete. The agreement provides for grant of interest @15% from the date of payment made by persons, who booked apartment.
7. Statement made in affidavit of applicant Diipesh regarding depositing of Rs.22 Crores is accepted as provisional payment which shall take care of interest of investors. In addition thereto, the applicants are directed to submit list of all persons who booked apartment in the incomplete project ''Bhagtani Riyo''. The list to show the amount deposited by each investors as well as the amount payable to each investor considering the rate of interest at 15% or agreed rate of interest per annum as on the date of submission of list. The list alongwith affidavit of the applicant be tendered on 12th October 2017.
7. The learned APP states that the investor has already issued letter to the bank for defreezing the concern account. The statement so made is accepted.
8. Stand over to 12th October 2017.
9. Interim order to continue till 12th November 2017.
(A.M. BADAR, J )

PC: 1. Heard the learned advocate appearing for the applicants as well as the learned Advocate appearing for the interveners.
2. The learned Advocate appearing for the applicants reported that total 1088 individuals have booked apartments in the schemes floated by applicants. As on date he has refunded entire amount due to 658 persons. 255 persons are partly paid whereas, nothing is paid to remaining 175 persons.
3. The learned advocate appearing for the applicants on instructions is stating that the applicants are managing the funds and are in a process of refunding the amount to all persons, who are yet to be paid or partly paid. He shown willingness to report further developments to this Court immediately on re­opening of the Court.

4. In this view of the matter, stand over to 1st November 2017.
5. If applicants desires to go to some foreign country in the meanwhile, they should seek permission of this Court.
6. Interim order to continue till then.
(A.M. BADAR, J )

PC: 1. The learned Senior Advocate appearing for applicants submitted that applicants are moving the National Company Law Tribunal under Section 230 of the Companies Act with a proposal that applicants shall return the entire amount with interest to their customers, who are not willing to continue with the Housing Scheme found due according to the relevant provisions of law. In the alternative, the applicants are also praying for National Company Law Tribunal that they shall continue with the project and deliver the possession of the apartments to their customers, who are willing to continue in the Scheme. The third option which is being given to the customers is that they will be shifted to other Projects in the vicinity undertaken by other Builders, if customers are agreeing for this proposal. According to the learned Senior Counsel, within two weeks from today such applications shall be moved to the National Company Law Tribunal. Shri.Kulkarni, the learned Advocate appearing for applicants states that some more payments are disbursed to the customers, who are willing to take back money by withdrawing from the Scheme.
2. The learned Advocate for some of the intervenors have submitted that the applicants are not accepting the RTGS details for refunding the amount deposited by intervenors with the applicants. Shri.Kulkarni, the learned Advocate appearing for the applicants submits that he will suitably instructed all applicants to co­operate the intervenors by accepting bank details for making refunds as claimed.
3. A grievance has been raised by Shri.Kulkarni, the learned Advocate appearing for the applicants that despite oral undertaking given by the learned Additional Public Prosecutor on the last date, the Investigator had not yet defreezed the bank accounts of the applicants. Ms.Malhotra, the learned APP submits that the concerned Investigating Officer is not present and she shall instruct the concerned Investigating Officer accordingly.
4. In this view of the matter, stand over to 15th November 2017.
5. Interim Order to continue till the next date.
(A.M. BADAR, J )

LENIENT CONDUCT OF JUDICIARY:
  • Total memory loss about order passed a few days earlier. On 3rd October, Justice Badar wrote in his order: "Statement made in affidavit of applicant Diipesh regarding depositing of Rs. 22 Crores is accepted as provisional payment which shall take care of interest of investors. In addition thereto, the applicants are directed to submit list of all persons who booked apartment in the incomplete project ''Bhagtani Riyo''. The list to show the amount deposited by each investors as well as the amount payable to each investor considering the rate of interest at 15% or agreed rate of interest per annum as on the date of submission of list. The list alongwith affidavit of the applicant be tendered on 12th October 2017." Although this order was flouted by the applicants, Justice Badar adopted an indulgent stance that indicated that he didn't mind in the least. 
  • Unwillingness to impose travel restrictions. On 12th October, Justice Badar reluctantly conceded the need for imposing travel restrictions on the applicants. He passed a cleverly worded order: "4. In this view of the matter, stand over to 1st November 2017. 5. If applicants desires to go to some foreign country in the meanwhile, they should seek permission of this Court." At the hearing on 1st November, he directed some stinging remarks at the intervenors' advocates, and so they were cowed down afterwards. As a result, the feeble travel restrictions that he had earlier imposed, lapsed, and the Bhagtanis are currently free to travel abroad without restriction. Although all three applicants are conspicuously absent at every single hearing, Justice Badar never inquires about their whereabouts. Evidently, he discounts the possibility that the applicants (who frequent London and Dubai) may evade the long arm of the law by leaving the country.
  • Ready acceptance of applicants' claims without verification. In his order dated 12th October, Justice Badar noted: "The learned Advocate appearing for the applicants reported that total 1088 individuals have booked apartments in the schemes floated by applicants. As on date he has refunded entire amount due to 658 persons. 255 persons are partly paid whereas, nothing is paid to remaining 175 persons. The learned advocate appearing for the applicants on instructions is stating that the applicants are managing the funds and are in a process of refunding the amount to all persons, who are yet to be paid or partly paid. He shown willingness to report further developments to this Court immediately on re­opening of the Court." The applicants were not asked to submit a single document before this order was passed. Is this normal for a court of law?  
  • Orders that are extraneous to criminal proceedings. On 1st November, Justice Badar wrote in his order: "The learned Senior Advocate appearing for applicants submitted that applicants are moving the National Company Law Tribunal under Section 230 of the Companies Act with a proposal that applicants shall return the entire amount with interest to their customers, who are not willing to continue with the Housing Scheme found due according to the relevant provisions of law. In the alternative, the applicants are also praying for National Company Law Tribunal that they shall continue with the project and deliver the possession of the apartments to their customers, who are willing to continue in the Scheme. The third option which is being given to the customers is that they will be shifted to other Projects in the vicinity undertaken by other Builders, if customers are agreeing for this proposal. According to the learned Senior Counsel, within two weeks from today such applications shall be moved to the National Company Law Tribunal." Madam, is National Company Law Tribunal relevant for giving or denying anticipatory bail? Why is NCLT, unheard of in the previous six orders, mentioned in the seventh order? Also, why is the applicant allowed to shift the goalposts by coming up with fresh statistics, fresh  conditions and fresh promises at every hearing?
  • Applicants' bonafides are automatically assumed. In the order passed on 1st November, Justice Badar wrote, "... learned Advocate appearing for applicants states that some more payments are disbursed to the customers, who are willing to take back money by withdrawing from the Scheme." Why weren't they asked what amounts were disbursed, and to how many customers? Madam, allow us to inform you that paltry sums of Rs 50,000/- were flung like alms at beggars at roughly 100 of the applicants' 2000-plus victims, each of whom the applicants owe between Rs 8 to 80 lakhs! As for "withdrawing from the scheme", allow us to inform you that the applicants' only scheme was to take money from thousands of flat-buyers without giving them anything in return. Intervenors are ready and willing to provide proof of this, but will Justice Badar record such inconvenient truths in his orders? We doubt it. 
  • Covertly mediating on behalf of anticipatory bail applicants. Orders dated 12th October and 1st November lend themselves to interpretation as mediation on behalf of the applicants i.e. Bhagtani builders, couched in judicial language. Examples: "... the applicants are managing the funds and are in a process of refunding the amount to all persons, who are yet to be paid or partly paid..." "...applicants shall return the entire amount with interest to their customers, who are not willing to continue with the Housing Scheme... In the alternative, the applicants are also praying for National Company Law Tribunal that they shall continue with the project and deliver the possession of the apartments to their customers, who are willing to continue in the Scheme. The third option which is being given to the customers is that they will be shifted to other Projects in the vicinity undertaken by other Builders, if customers are agreeing for this proposal..." Madam, does Justice Badar, enclosed in his lofty courtroom, cared to find out about the squalid ground reality of Bhagtani builders? Does his lordship have a clue that all of these so-called options are neither fair nor feasible? Does he care to know that these options have already been considered and rejected by the complainants and intervenors? If he genuinely cares about the fate of complainants and intervenors, why doesn't he allow their counsels to speak?

Madam Chief Justice, it appears that this hon'ble bench is overreaching are beyond its jurisdiction, pre-judging the FIR and preempting police investigations. We seriously apprehend that such conduct will prejudice the law enforcement agencies and prevent them from doing their duty. This will not only deprive over 300 complainants and intervenors of justice, it will render a couple of thousand other victims of the Bhagtanis completely helpless, hopeless and without any recourse.

We, the public, hold the judiciary in high esteem. Kindly take necessary steps to safeguard our faith in the judiciary.

Yours sincerely,

Krishnaraj Rao
Journalist, Mumbai
9821588114
krish.kkphoto@gmail.com

Copy to:
  • Justice A M Badar
  • Justice Revati Mohite Dere
  • Advocates and Counsels of all intervenors, complainants and applicant
  • Public Prosecutor
  • Advocate General of Maharashtra
  • Ministry of Law & Judiciary, Maharashtra
  • Ministry of Law & Justice, Govt. Of India
  • Chief Justice of India

This open letter is endorsed by the following intervenors, complainants and victims:
S.No.   Name                   Mobile No.                   Signature