Advocate Rajeev Kumar

Questions Answered by Advocate Rajeev Kumar (25+ answers)

Q: Subject: Interim Stay Order under Section 38(8) to freeze loan account

I took an auto loan of Rs 2,13,722 from IndusInd Bank. Paid all EMIs on time, but within 5 months, the vehicle was destroyed in a fire. I filed a case in Consumer Court. The insurance company paid Rs 2,00,000, and I paid the remaining Rs 13,903. The entire loan stands 100% cleared "UNDER PROTEST". The bank suffered zero loss and earned a profit.As per Clause 1.1 of the agreement, the bank has technical provision for Asset Substitution (amending engine/chassis numbers), which they admitted in writing. However, now the bank is rushing to unilaterally close the loan account to stop hypothecation transfer to my new vehicle.The Hon'ble Judge asked if there is a past precedent for vehicle substitution. Most accident victims are defaulters, so no such precedent exists. Since the bank has provision but is denying it, how can I obtain an Interim Stay Order under Section 38(8) to freeze the account status?

Advocate Rajeev Kumar answered
The issue appears to be contractual rather than merely dependent on a past precedent. If Clause 1.1 expressly permits asset substitution and the bank has acknowledged this in writing, you can seek an interim order restraining the bank from unilaterally closing the loan account or refusing substitution, subject to the terms of the agreement. However, Section 38(8) alone may not be sufficient unless the proceeding is otherwise maintainable under the Consumer Protection Act. Place the loan agreement, written admission of the bank, proof of complete repayment, insurance settlement, and details of the proposed replacement vehicle before the Consumer Commission. The relief should be framed as preservation of the contractual facility/status quo pending final adjudication.

Q: Applying foreign divorce decree to get Indian certificate

marriage registered in both India & foreign. “Uncontested” divorce on grounds of “irreconcilable differences”. Signed settlement agreement says they submit to foreign jurisdiction & decree will dissolve Indian marriage too. Divorce decree granted by foreign court. Now one wants an Indian court’s declaration, certificate or decree, after many years. Can he get one? Do they have to file financial disclosures at all, and if so, even for all years after foreign-divorce? What’s the procedure?

Advocate Rajeev Kumar answered
A foreign divorce decree is not automatically binding in India. Its recognition depends on Section 13 CPC and the principles laid down in Y. Narasimha Rao v. Y. Venkata Lakshmi. The foreign court must have proper jurisdiction and the ground of divorce must be recognised under the applicable Indian law.An appropriate declaration/recognition proceeding can be filed before the competent Indian Family/Civil Court. Financial disclosure is not automatically required for every year after the foreign divorce; it depends on whether any surviving claim for maintenance, alimony, property, etc. is involved.

Q: Illegal encroachment to install gate on stair

Live in a builder floor and third floor which have roof right install a gate in stair just up to second fllor stair and we enable to go on roof for check water tank or other things gave multiple compain in police station but thry told we have not right to remove gate suggest me legal process to remove his gate from common area

Advocate Rajeev Kumar answered
In India, the roof/terrace rights of a third floor (or any top floor) in a builder-constructed building depend entirely on what is written in the registered Sale Deed and the sanctioned building plan. Physical proximity does not automatically grant ownership.Indian courts (including the Supreme Court and various High Courts) look at the following legal principles to determine who owns the roof: 1. The Registered Sale Deed is FinalIf Exclusive Rights are Mentioned: If the builder explicitly transferred the exclusive roof/terrace rights to the third-floor owner in their registered Sale Deed, that owner holds the legal right to the terrace. If the Deed is Silent: If the document does not mention who owns the roof, it is legally deemed a common area. This means all floor owners (Ground, First, Second, Third) have an equal shared right to use it.

Q: Arbitration/Other Options for Matrimonial Couple

Couple settled, got divorce decree, & FIR 498A was also quashed on basis of mutual settlement. Now, post-divorce, if parties want to initiate discussions, potentially to modify their agreement, or resolve other disputes, & if they want to stay out of court/agencies, can arbitration qualify? People say arbitration cannot take up criminal matters. But FIR was quashed. They won’t be able to have good discussions w/o talking about past FIR. If not arbitration, they have to go back to the agencies?

Advocate Rajeev Kumar answered
While arbitration is generally banned for personal marital disputes, Indian law heavily promotes Mediation and Conciliation instead.The Family Courts Act: Courts mandatorily refer couples to a Mediation Centre before starting trial proceedings to explore a mutual settlement.Settling Criminal Family Disputes: If a criminal case (like domestic violence or dowry harassment) has already been filed, the couple can still undergo formal mediation. If they reach a mutual settlement, they can approach the High Court to quash (cancel) the criminal case based on that settlement agreement.

Q: Eligibility of Teacher for Gratuity

My wife worked as a regular teacher in an unaided public school at Delhi from 5 Apr 94 to 31 Mar 2001. She had resigned from service due to family reasons. The school did not give her Gratuity at the time of resignation neither she demanded. Can the same be claimed from the school now? The school is still functioning. The Supreme court had upheld the retrospective amendment and extended gratuity coverage to teachers effective from April 3, 1997.

Advocate Rajeev Kumar answered
As per the rules, an employee is required to submit Form 'I' within 30 days of leaving the job. However, various courts—such as the Madhya Pradesh and Bombay High Courts—have clarified in their judgments that an employee's right to gratuity cannot be forfeited solely on the grounds of delay; the delay can be condoned.The biggest challenge after 25 years will be proving that you were employed by that company. You will need to produce concrete documents such as salary slips, appointment letters, relieving letters, or PF statements.