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Is Amicable Settlement a 'Real' Option?

Saturday, April 21, 2018

In a few days’ time, RERA will complete a year of having become a law. As such, it is a pertinent time to understand dispute resolution mechanism under the act. Advocate Tanmay Ketkar gives you the details

The dispute resolution mechanism and its effectiveness under a special statute decides its real usefulness. That’s why it is important to know and understand and dispute resolution mechanism under the Real Estate (Regulation and Development) Act, 2016 (RERA). The dispute redressal system under RERA can be sub-divided in two parts or phases. In first phase, the complaint is uploaded online on MahaRERA portal and second phase complaint is heard and decided.

The phases
In first phase, the complainant must first upload the complaint on MahaRERA portal. Thereafter, the complainant is required to send a copy of complaint and all documents annexed to the opponent. Lastly, the complainant is required to submit the hard copy of complaint and documents at MahaRERA office. With submission of documents the first phase concludes.

The second phase starts with the notification of first date of hearing. The MahaRERA informs complainant and opponents of the first date and thereafter every date through email. The notifications do not have information about the allocation of the complaint. As a general practice, the MahaRERA uploads daily cause list a day before. Therefore, the complainant and respondent can know the time and court a day before hearing date. The first date is generally for appearance of the opposite party. If the opposite party fails to remain present either in person or through representative, the authority may pass an ex parte order or may adjourn the hearing for passing an ex parte order. If the complainant fails to remain present on adjourned date, the complaint is heard and decided ex parte.

In case the opposite party appears, firstly an effort is made for amicable resolution of dispute between the complainant and respondent. If there is possibility and willingness of amicable resolution, the hearing is adjourned for amicable resolution. If the dispute is amicably resolved, the complaint is disposed off as amicably settled. However, if the dispute is not resolved, the complaint is heard on merits. In this circumstance, the opposite party is given an opportunity for filing reply and documents. Complaint, written reply is followed by the oral argument. After the final argument the complaint is closed for order and soon the order is passed.

Pros and cons of amicable resolution
In all this, it is important to understand pros and cons of both the decision on merits and amicable resolution. Firstly, let us discus decision on merits. In our legal system everybody has a right to appeal. Similarly, in RERA also there is provision of appeal. Accordingly, the party aggrieved by decision can file first appeal in appellate tribunal, then in high court and then in Supreme Court. If the appeal is admitted and execution of order is stayed, the person in whose favour the order is, does not actually get anything, unless and until all appeal forums are exhausted. Even if execution is not stayed, in current scenario due to limited resources available to RERA, it is difficult to execute the order.

Amicable settlement must be understood against backdrop of order on merits and its execution. Unlike decision on merits, the amicable resolution immediately benefits the aggrieved party. However, in amicable resolutions, naturally, the quantum of benefits would be lesser than claimed or could have ordered on merits.
Another question is, what to do in case of default? The answer lies in manner of amicable resolution. For security, it is always better not to withdraw the complaint, but to get it disposed of in terms of amicable settlement. In this scenario the amicable settlement terms are filed in RERA. In case of default, the aggrieved person can approach RERA for enforcement of the terms.

In nutshell, as far as possible, if the offer for amicable settlement is fair and good, it is beneficial to accept it. Ultimately, what matters is the actual gain or profit and not the notional gain or profit.

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