The Legal Seagull - Charul Abuwala
About Mr.Charul Abuwala
Mr.Charul Devendra Abuwala is a practising lawyer in the High court of Mumbai. An Ex-Seafarer he has served on both Indian and Foreign flag vessels.
Currently Mr.Abuwala is a partner in m/s Dave & Co., one of the oldest and the most reputed firms of Advocates & Solicitors in Mumbai.
Even after giving up the maritime profession, Mr.Abuwala has still got nostalgic memories of the different vessels he has sailed on, various ports he has visited and of all the shipmates he has sailed with during his shipping career and he always wanted to do his bit to assist the Maritime community.
Seafarers requiring any kind of legal assistance kindly Email all your queries in confidence to charulda@vsnl.com
Buying/Selling Property
Since buying a house is one of the most important decisions one makes in one's lifetime, and is also the one which makes the most significant dent in the bank balance of even those seafarers working for illustrious and well paying shipping lines, it is but natural that one exercises abundant caution before investing ones hard earned monies in immovable property.
(I will also shortly bring out a few commonly asked questions pertaining to the law of apartments and housing societies in Maharastra.)
At the outset I would like to tell prospective buyers that in today's estate market it is much better to go in for a fully constructed ready-possession apartment rather than a partly completed project. There are various instances where lakhs or even crores of rupees are stuck in projects which remain incomplete for years together.
Secondly one has to be aware of the various liabilities of the promoter under the Maharastra Ownership Flats act 1963 .
The promoter is liable to make full and true disclosure of the nature of his title to the land on which the flats are to be constructed , or have been constructed . The title certificate should be duly certified by a solicitor or advocate with more than 3 years standing at the bar. Do spare some time to study the title certificate. The promoter is also liable to disclose any encumbrances on such land.
The promoter is liable to give inspection on 7 days notice or demand of the plans and specifications of the building built, or to be built on the land duly approved by the local authority. The intending flat purchaser can also verify the extract of property register card or revenue record as attached with the agreement for sale.
Besides the above, the amenities to be provided by the builder, date of possession etc. should also be verified.
If payment is to be made by instalments ensure that instalments are clearly and distinctly mentioned in the agreement for sale.
If the transaction involves an amount of over 75 lakhs form 37-I under chapter XX-C of income tax act is to be filed.
Another thing, which I would to draw attention to, is that registration of agreement is compulsory in cases where the flat is purchased from the builder directly. The registration should be done within 4 months of the execution of the agreement. However if the flat is purchased in re-sale in a registered co-op society registration is not compulsory. The stamp duty payable should be verified.
I would like to share another important bit of information, which pertains to the transfer fees in case of sale of flats. Many a times it has come to my knowledge that societies charge transfer fees at Rs. 100/- per sq.feet or higher though the maximum permissible under law is Rs. 25,000/-. As per the circular no. Grihnirman/Gala tailb/fee/89/date 27/11/89 maximum transfer charges in Mumbai is Rs. 25,000/-. So if the society demands more than that, one can quote the above circular but also make sure that you have complied with all other formalities of the transfer since otherwise some unscrupulous societies will try to exploit any small chink in your armour.
Another common problem is the transfer in case of death of a member in a co-op housing society. It is always a good practice to file a nomination in favour of the person whom one wants to inherit the flat since this will make it much easier for the transfer to take place. Though the Bombay High Court has held that transfer of shares of interest of the deceased member to a nominee or legal heir recognised by a society does not create a right in that person to the exclusion of other heirs i.e. it does not create a new rule of succession.
Lastly I would like to point out that most persons are under an erroneous belief that once an agreement is stamped properly and after the registration of the agreement and the registration of the society all legal formalities are over and that nothing more needs to be done.
Well I would clarify that one should confirm and verify that the promoter/ builder has conveyed the title in favour of the society as he is bound in law to do. In other words the land on which the society is standing should be conveyed to the society and all records should be accordingly updated viz: Revenue records, BMC records, etc.
The fact of the matter is that many housing societies in Greater Bombay have been in existence for years and decades but they have not obtained a title in their favour. The title still stands in the name of the original vendor who entered into development agreement with the builder/ promoter. If we imagine a hypothetical situation whereby due to a natural calamity or an act of war or some other reason the building stands demolished then in such a case if the title of the land is not in favour of the society it will create a lot of legal complications since the land still stands in favour of some other person, and not the society. In case your building is relatively new ensure that the builder executes conveyance in favuor of the society immediately.
In case you are residing in a society which is old please ensure that conveyance is in favor of the society, otherwise one may need to file a suit for specific performance to get the title in favour of the society . This becomes very important in cases where the society is acquiring Transfer of development rights (T.D.R) to build additional floors on the society building and sell it to outside parties . In such cases the society stands to gain a lot and sometimes lakhs of rupees come to each flat owner. This is a trend in Mumbai where such TDR is acquired at a low price and such construction is done after due permission from BMC. In such cases if the conveyance is not in favour of the society the BMC will not sanction plans in favour of the society. So please do bear the above in mind and verify that your society has a clear title in its favor. It may be worth mentioning that under the law of adverse possession one can approach the Court for a declaration that the society has been in possession for more than 12 years and since no one has objected to the same there ought to be a declaration that the society is in adverse possession.
However it is always better that the title should be conveyed to the society by the promoter and also note that he is bound in law to do the same.
I would be happy if the above proves useful to even a single individual and I would consider my effort well worth it. I will appreciate, and reply to, all your valuable feedback and comments
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Read your contract before signing
On a sunny February morning in 1986 in the Persian Gulf, some 80 miles Northeast of Doha, a Cypriot registered tanker was hit by Jet fighters in International waters. The crew of the vessel were a mix of Greeks, Filipinos and Indians. In the attack several innocent lives were lost, which included an Indian 3rd Engineer and an Electrician and two Indian ratings.
The relatives of those ill-fated seamen were given rather insubstantial compensations of Rs.2 lakhs for each officer and Rs.1 lakh for each rating. One can only sympathize with the plight of the bereaved, for whom these sums would be no more than meagre tokens.
Unfortunately they could not claim any more since the contracts, which the ill-fated seafarers had duly signed as a matter of routine, provided for the said amounts only; moreover the insurance cover was also for that amount, and also there was no other agreement with a seamen union.
I happened to be on that ill-fated ship and was among the lucky ones who survived. But that was precisely when I realized how important a document the employment contract really is.
The seagoing fraternity considers the contract to be just another piece of cumbersome documentation, to be completed with a quick swish of the pen, and put away as quickly as possible. However, this paramount document can be ignored only at one's own peril.
I would like to point out a few clauses which a seafarer must look at carefully prior signing on the dotted line. Besides the usual clauses concerning the compensation package, allotments, rest periods, shorthand manning, paid leave, medical and repatriation clauses, the following must be perused carefully:
1. Firstly check who is signing the contract on behalf of the Company. Many companies have a liaison office in India ensure that the person signing has an authority to sign on behalf of the Company.
If an agency is recruiting for a foreign principal ensure that there is a agency agreement under which the agent derives power to recruit on behalf of his principal
It would be highly recommended that a jurisdiction clause be inserted whereby the courts in India will have jurisdiction to entertain and try any dispute arising out of the contract.
2. Most importantly one should be careful about the Death/Disability clause. (At present the scales enlisted in the box are generally acceptable by maritime trade unions.)
It should also be provided that the degree of disability is to be determined by an independent medical practitioner.
The clause for loss of life in service should specify that if a seafarer dies through any cause, whilst in the employment of the company, or arising from his employment with the company including death from natural causes or death occurring whilst traveling to or from a vessel or as a result of marine or other similar peril, the company will pay to the widow or children or parents and to each dependent child up to a maximum of 4 (under 21 years of age).
The amount should be reasonable and the seafarer should satisfy himself as such.
3. Another important clause is of service in warlike areas. Firstly check that the areas of warlike operations provided for will be as those indicated by Lloyd's.
A seafarer should have the option to accept or decline the assignment without risking losing his employment or being subjected to any detrimental effects.
Also, the compensation for the death/ disability should be doubled if not more.
4. Last but not the least, make sure that the Company has concluded appropriate insurance to cover themselves fully against the possible contingencies and liabilities arising from the Contract.
I sincerely hope that the above proves useful to the seagoing fraternity. This is my humble way of saying THANK YOU to the wonderful people I sailed with during my days at sea.
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Death / Disability Compensation
|
|
Degree of Disability
|
Ratings(AB & Below)
|
Officers & Ratings (above
AB's) |
| 50 - 100 |
US$ 60,000 |
US$ 80,000 |
| 49 |
US$ 30,000 |
US$ 40,000 |
| 30 |
US$ 18,000 |
US$ 24,000 |
| 20 |
US$ 12,000 |
US$ 16,000 |
| 10 |
US$ 6,000 |
US$
8,000 |
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