Saturday, June 22, 2013

Contract Agreement - Invalid and Unenforceable in law, if entered into/consent obtained /given under Duress And Undue Influence >>

Update (Not Unrelated)

Read Post  (22 nd June 2013)



"Duress and Undue Influence" - A Legal Plea, if rightly ..

and valiidly invoked, might help !

Very often, instances of any requirement – in the present context, to sign a contract agreement, though prima facie,- because of its terms or conditions or the like (not barring omission to include any of them conventionally considered material ) -being 'one-sided' hence unlawful or illegal, or in any case highly objectionable, come to light but go unnoticed or not being made a conscious note of.
To readily recall one such instance: Not long before it came to be noted that lending banks , PSBs at that, requiring the borrower to furnish an affidavit in the form of a personal undertaking to repay the loan in the event of any deficiency in title or the like attached to the mortgaged property provided as a security for repayment. Albeit any such deficiency , especially where the property is an apartment or flat purchased from the promoter / seller is traceable to and for which the blame undeniably lies with the  promoter/seller, or original holder. If so, and were questioned, rightly so, strict legal position, it appears, is that any  such requirement thrust upon , even if been complied with by, the gullible borrower / buyer could be successfully contested as non-est.; not enforceable in law. That will be so, provided it is case coming within the mischief / on the ground of what in contract law is known as consent given under “duress and undue influence”  ; even if verges on but is strictly not tantamount to “coercion”.
Search Google for an answer; here is one specimen/ typical answer! >
 insitelaw - Law of Contract: Duress & UNdue Influence‎
An Extract>
< Duress and Undue Influence
There are two important cases at the foot of this section where judgments have been extracted to give you an opportunity to read more deeply.
Barclays Bank v O'Brien [1994] AC 180
A security obtained by misrepresentation or undue influence may not be enforced – the creditor should take pains to make sure that no unfair advantage was gained.
The Etridge case
Royal Bank of Scotland v Etridge (No . 2) [2001] UKHL 44; [2002] AC 773
Adam Opel Gmbh and Renault SA v Mitras Automotive (UK) L:td [2008] EWHC 3205 QB
Read this case to get a feel for the subject.
David Donaldson QC sitting as a Deputy High Court judge
"The general principles of the law relating to economic duress have been elaborated over the last forty years in a number of decided cases, and were not in issue before me. It was common ground that they are accurately summarised by Dyson J in DSND Subsea Ltd v Petroleum Geo Services ASA, [2000] BLR 530 at para. 131 and repeated in his later decision in Carillion Construction Ltd v Felix (UK) Ltd, [2001] BLR 1 as follows:
"The ingredients of actionable duress are that there must be pressure, (a) whose practical effect is that there is compulsion on, or a lack of practical choice for, the victim, (b) which is illegitimate, and (c) which is a significant cause inducing the claimant to enter into the contract: see Universal Tanking of Monrovia v. ITWF [1983] AC 336, 400 B–E, and The Evia Luck [1992] 2AC 152, 165 G.
In determining whether there has been illegitimate pressure, the court takes into account a range of factors. These include whether there has been an actual or threatened breach of contract; whether the person allegedly exerting the pressure has acted in good or bad faith; whether the victim had any realistic practical alternative but to submit to the pressure; whether the victim protested at the time; and whether he confirmed and sought to rely on the contract. These are all relevant factors. Illegitimate pressure must be distinguished from the rough and tumble of the pressures of normal commercial bargaining."
At common law if a party enters into a contract under duress the contract may be set aside on ground of duress unless it has been affirmed expressly or impliedly after the duress has been withdrawn.
Duress may take several and various forms and, in particular, may take the form of economic duress, but whatever form it may take it must amount to a coercion of the will – such that there was no true consent.
The court will consider a range of factors in determining whether a duress was present and, in particular will wish to see whether the person coerced protested, whether he had an alternative course of action available and whether he sought and took independent advice.
Shivas v Bank of New Zealand [1990] 2 NZLR 327 >
Below is an extract from the text of an Indian court judgment:
< 41. Language of Section 16 of the Indian Contract Act 1872 shows that existence of a
subsisting relationship where one party is in a position to dominate over the will of the
other has to be established before establishing that an unfair advantage has been obtained
by a party. The common law principles relating to duress, undue influence, coercion etc.
rest on the principle of absence of consent. A person subjected to duress, coercion or
undue influence is said to have had his will overborne so that he was incapable of making
a free choice. But as law developed it was recognised that where the will is not
overborne but is deflected it would be sufficient to hold lack of free will. [See Lynch Vs.
DPP of Northern Ireland (1975) AC 653].>
Key Note: In one’s view, for many of the grievances aired against the promoters/sellers,  time and again, by the buyers’ of flats or apartments, mainly by reason of ‘one-sided contract agreement'  (To Sell or Of Sale) the scope for remedy will be worth exploring having in focus the indicated legal position.

Above, to be rw Posts @ Ecopack (reproduced below, for ready ref.) >

Mr.vswami`s View and the RBI Master Circular.
On the first blush, one’s reaction is against the very validity of, or rationale behind, or a lawful justification for, a borrower being required to furnish the lending bank or any other entity with an affidavit of this kind.
One is not clear on the following points, rather baffled/totally nonplussed, as they are seemingly imponderables, especially if it is a property, being a unit of a building, known as-’flat’ or ‘apartment’ :
1. In respect of all requirements, including development and construction of a multi-unit building, intended for sale of such units to the public as such, the entire responsibility and all connected obligations, primarily for completion of the project in every respect, and strictly as per the governing special State enactment, and other related rules and regulations, are those of / rest only with, the promoter/developer/seller of the property.
That the correct legal position is so, and could conceivably be no different, with no room for even an iota of doubt whatsoever, should be, in one’s strong conviction, more than abundantly clear even from a close but mindful reading of the extant law on the subject in any State, as also the proposed central enactment for exercising powers of statutory regulation and control over the promoter’s responsibilities and obligations.
2, it is rather intriguing to note that, the affidavit is said to have been furnished in deference to some of the readers’ demand. The most crucial points of all, which have, however, been left to be made clear, and remained not clarified, are these:
Whether such a request has come to be made by any reader because of his being faced with any such requirement in regard to his intended borrowing?
Is it a new requirement; if so, since when?
So far as one individually knows or remembers, this is the first time that a news of this kind has come to be propagated; is that not really so (subject to correction, if that were otherwise. !
Whether before suggesting or drafting any such format, its author (s) has at all considered mindfully of any of its legal implications or untoward but totally unwarranted consequences the idea entails, to the detriment of the lawful rights and interests of the community of borrowers at large?
Be that as it may, in one’s strong view, any such idea deserves to be lawfully resisted within the frame work of the applicable law,with all force.
<  Reply
Dear Sir,
Please check with the borrowers and the banks. Most of the banks have obtained such affidavits from the borrowers.
The RBI in its MC has directed the banks as under:
Please refer to our Master Circular DBOD.No.DIR.(Exp).BC.04/08.12.01/2006-07 dated July 1, 2006 on Housing Finance.
2. During the hearing in the captioned Writ Petition, the Hon’ble High Court of Delhi has directed as under:
‘ We hereby direct that henceforth Banks will check whether the loan sought for is for authorized structure or an unauthorized structure and the Banks will obtain an undertaking on an affidavit from the parties seeking such loans that the building is constructed as per sanctioned building plans. Banks shall also ensure that the sanctioned building plans are attached with the undertaking. Let necessary directions be issued in this regard either by the concerned Ministry of Banking or the Reserve Bank of India’.
3. In this context, the Monitoring Committee constituted by the Hon’ble High Court of Delhi regarding Unauthorised Construction, Misuse of Properties and Encroachment on Public Land, has issued the following directions for immediate compliance by the banks/Financial Institutions:
A. Housing Loan for building construction
i) In cases where the applicant owns a plot/land and approaches the banks/FIs for a credit facility to construct a house, a copy of the sanctioned plan by competent authority in the name of a person applying for such credit facility must be obtained by the Banks/FIs before sanctioning the home loan.
ii) An affidavit-cum-undertaking must be obtained from the person applying for such credit facility that he shall not violate the sanctioned plan, construction shall be strictly as per the sanctioned plan and it shall be the sole responsibility of the executant to obtain completion certificate within 3 months of completion of construction, failing which the bank shall have the power and the authority to recall the entire loan with interest, costs and other usual bank charges.
iii) An Architect appointed by the bank must also certify at various stages of construction of building that the construction of the building is strictly as per sanctioned plan and shall also certify at a particular point of time that the completion certificate of the building issued by the competent authority has been obtained.
B. Housing Loan for purchase of constructed property/built up property
i) In cases where the applicant approaches the bank/FIs for a credit facility to purchase the built up house/flat, it should be mandatory for him to declare by way of an affidavit-cum-undertaking that the built up property has been constructed as per the sanctioned plan and/or building bye-laws and as far as possible has a completion certificate also.
ii) An Architect appointed by the bank must also certify before disbursement of the loan that the built up property is strictly as per sanctioned plan and/or building bye-laws.
C. No loan should be given in respect of those properties which fall in the category of unauthorized colonies unless and until they have been regularized and development and other charges paid.
D. No loan should also be given in respect of properties meant for residential use but which the applicant intends to use for commercial purposes and declares so while applying for loan.
4. Banks are advised to strictly comply with the above directions with immediate effect.
Relate To>

vswami says:
On the vexing topic of Khata, following related comment posted elsewhere* may provide some guidance to apartment owners:

vswami says:

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