Advocate Aditya Kumar

Questions Answered by Advocate Aditya Kumar (25+ answers)

Q: Leave Encashment at Full & Final Settlement

Our company was taken over by another company through NCLT. They asked Managerial staff to resign. While the Gratuity was paid with the new 50% wage rule, the Leave encashment was calculated on a basic pay ( which is 1/3 rd of 50% Wage). What is the legal standing and remedial measures. Is managerial employee entitled for severance pay if nothing is mentioned in the appointment letter of previous co. Also the insolvent company did not pay us 6+ mths Salary, is there any remedial measures?

Advocate Aditya Kumar answered
Leave encashment depends on applicable State law, employment terms and company policy; the gratuity wage basis does not automatically apply. Genuine managerial employees generally have no automatic statutory retrenchment compensation, but notice pay or termination benefits may still arise under applicable law, policy or the approved resolution plan.For unpaid salaries, submit Form D to the resolution professional if CIRP remains pending, subject to applicable timelines. If the plan is approved, examine it immediately: claims outside the plan generally stand extinguished, and recovery from the acquirer is not automatic. Obtain the NCLT order, plan and employment records to assess recovery and any challenge to coerced resignation.

Q: Illegal construction by builder on terrace

I am co heir in a 2nd-floor barsati in South Delhi with registered terrace rights. Deviating from sanctioned plan, the builder built an unauthorized flat on that terrace and kept it tenanted for ~18 yrs. I want this dealt with before filing a partition suit: What sequence is best: Legal Notice, Civil Suit with Local Commissioner (O26 R9 CPC), or MCD ?How does demolition vs sealing affect FAR in redevelopment? Can builder claim adverse possession against his own deed?

Advocate Aditya Kumar answered
In my opinion, the appropriate course would be to first examine the registered sale deed, particularly the clause granting terrace rights, along with the sanctioned building plan. Thereafter, issue a comprehensive legal notice to the builder and initiate an independent complaint before the MCD seeking inspection, measurement and appropriate action under Sections 343, 344 and 345A of the Delhi Municipal Corporation Act, 1957. Simultaneously, institute a civil suit seeking declaration of the terrace rights, permanent and mandatory injunction, and recovery of possession, wherever applicable. An application under Order XXVI Rule 9 CPC may also be moved for appointment of a Local Commissioner to inspect and document the unauthorised construction, its dimensions and the extent of encroachment. The civil proceedings should principally be founded on infringement of proprietary rights rather than merely on municipal violations.As regards adverse possession, the builder cannot establish it merely by demonstrating that the unauthorised flat has remained occupied by tenants for approximately 18 years. Under Article 65 of the Limitation Act, he would have to establish continuous, open and hostile possession for the statutory period, including the specific point at which his possession became adverse to the lawful owner's title. If his registered conveyance itself acknowledges the second-floor owner's terrace rights and he subsequently inducted tenants, that circumstance substantially strengthens the owner's case, although it does not automatically defeat an otherwise established plea of adverse possession. Further, neither demolition nor sealing automatically creates additional FAR for redevelopment; permissible FAR will be governed by the applicable building regulations and sanctioned planning parameters. I would therefore prioritise protecting the registered terrace rights through civil proceedings while pursuing MCD enforcement independently.

Q: Advice required for property matter

My father in law has two flats. 1st bought by his father but no will done. 2nd bought in his wife's name(now deceased) He gave second flat to his elder daughter and took affidavit on Rs 10 stamp paper from her that she will not have any share in the first flat. Now he is making a will to name the first flat to my wife but elder daughter now wants share in that flat also saying that it is in name of my father in law's father and hence he cannot give it legally. How to avoid this dispute later on

Advocate Aditya Kumar answered
You can show the relinquishment deed signed by the elder daughter against first flat to inform that she has already relinquished her right. Now, she can not claim her share in that property. The deed is valid and can withstand the court proceeding.

Q: after mutual agreement Which statement girl should give to close 498a

We have made a mutual agreement, and the first motion has been completed now to close the 498a case i need to give the statement , other party advocate is saying no need to go to high court we can close in mm court , in 498a charges has been framed on husband and matter is at my evidence. what statement shall i give to close the 498a case

Advocate Aditya Kumar answered
498A offence is non compundable. You can not compromise or compound the offence at the trial court. You need to file quashing petition before the High Court. Prepare a settlement agreement and make it a basis to quash your case.

Q: Non-payment of Salary for Four Months

My salary has been unpaid for four months despite continued employment. I want to know my legal rights and the appropriate procedure to recover my outstanding salary. I understand that Section 17 of the Code on Wages, 2019 provides a time limit for payment of monthly wages, and Section 45 provides a mechanism to claim unpaid wages. Please guide me on the action I can take.

Advocate Aditya Kumar answered
Hi,I want to understand the nature of employment before suggesting the procedure to initiate legal action against the company. Code on Wages will be applicable only upon workers. You are also eligible for compensation along with the due salary.