Full Judgment Text
- 1 – Neutral Citation Number 2023:DHC:1872
$~95, 1 to 16, 49, 58, 63, 71, 87 to 89, 91 to 94, 96 to 303, 306 to 308
* IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
+ W.P.(C) 9491/2020 & CM No. 30535/2020
SUPERTECH URBAN HOME BUYERS ASSOCIATION
(SUHA) FOUNDATION
THROUGH ITS AUTHORIZED REPRESENTATIVES
HAVING ITS OFFICE AT: G102, FIRST FLOOR, FLEXI
HOMES SUSHANT LOK -3, SECTOR 57, GURGAON,
HARYANA – 122003 ..... PETITIONER
VERSUS
UNION OF INDIA
(MINISTRY OF HOUSING AND URBAN AFFAIRS)
THROUGH ITS STANDING COUNSEL,
NIRMAN BHAWAN, MAULANA AZAD ROAD,
NEW DELHI-110011 ..... RESPONDENT NO. 1
RESERVE BANK OF INDIA
THROUGH THE SECRETARY,
HAVING ITS OFFICE AT:
6, SANSAD MARG,
NEW DELHI–110001 .....RESPONDENT NO.2
SUPERTECH LIMITED
THROUGH ITS AUTHORIZED REPRESENTATIVE,
HAVING ITS OFFICE AT:
1114 HAMKUND CHAMBERS ,11 FLOOR 89,
NEHRU PLACE
NEW DELHI 110019 .....RESPONDENT NO.3
INDIABULLS HOUSING FINANCE LIMITED
THROUGH ITS AUTHORIZED REPRESENTATIVE,
HAVING ITS REGISTERED OFFICE AT:
M 62 & 63, FIRST FLOOR, CONNAUGHT PLACE,
NEW DELHI-110001 ..…RESPONDENT NO. 4
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
- 2 – Neutral Citation Number 2023:DHC:1872
HDFC LIMITED
THROUGH ITS AUTHORIZED REPRESENTATIVE,
HAVING ITS REGISTERED OFFICE AT:
HDFC BANK HOUSE, SENAPATI BAPAT MARG,
LOWER PAREL, WEST MUMBAI,
MAHARASHTRA-400013 ..…RESPONDENT NO. 5
PUNJAB NATIONAL BANK HOUSING FINANCE
LIMITED,
THROUGH ITS AUTHORIZED REPRESENTATIVE,
HAVING ITS REGISTERED OFFICE AT:
9TH FLOOR, ANTRIKSH BHAWAN, 22 KG MARG,
NEW DELHI-110001 ..…RESPONDENT NO. 6
DEWAN HOUSING FINANCE CORPORATION LIMITED
THROUGH ITS AUTHORIZED REPRESENTATIVE,
GROUND & 6TH FLOOR, HDIL TOWERS,
ANANT KANEKAR MARG, STATION
ROAD, BANDRA (EAST)
MUMBAI 400051 …RESPONDENT NO. 7
ADITYA BIRLA HOUSING FINANCE LIMITED
THROUGH ITS AUTHORIZED REPRESENTATIVE,
10TH FLOOR, R-TECH PARK NIRLON COMPLEX, OFF
WESTERN
EXPRESS HIGHWAY, GOREGAON(E),
MUMBAI–400063 ..…RESPONDENT NO. 8
ICICI BANK LIMITED
THROUGH ITS AUTHORIZED REPRESENTATIVE,
HAVING ITS REGISTERED OFFICE AT:
ICICI BANK TOWER, NEAR CHAKLI CIRCLE,
OLD PADRA ROAD
VADODARA–390007 ..…RESPONDENT NO. 9
L&T HOUSING FINANCE
THROUGH ITS AUTHORIZED REPRESENTATIVE,
HAVING ITS OFFICE AT:
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
Signature Not Verified
- 3 – Neutral Citation Number 2023:DHC:1872
BRINDAVAN, PLOT NO. 177, C.S.T ROAD,
KALINA, SANTACRUZ (EAST)
MUMBAI – 400098 ..…RESPONDENT NO. 10
INDIA INFOLINE HOUSING FINANCE LIMITED (IIFL)
THROUGH ITS AUTHORIZED REPRESENTATIVE,
HAVING ITS OFFICE AT:
PLOT NO. 98 UDYOG VIHAR PHASE IV
GURGAON 122015 HR ..…RESPONDENT NO. 11
With
W.P.(C) 14620/2022, W.P.(C) 1468/2023, W.P.(C) 1632/2023,
W.P.(C) 14683/2022, W.P.(C) 15237/2022, W.P.(C) 17347/2022,
W.P.(C) 719/2023, W.P.(C) 749/2023, W.P.(C) 859/2023, W.P.(C)
891/2023, W.P.(C) 953/2023, W.P.(C) 1089/2023, W.P.(C)
1122/2023, W.P.(C) 1165/2023, W.P.(C) 1219/2023, W.P.(C)
1313/2023, W.P.(C) 14589/2022, W.P.(C) 17500/2022, W.P.(C)
1038/2023, W.P.(C) 1941/2023, W.P.(C) 7443/2022, W.P.(C)
5192/2022, W.P.(C) 8972/2022, CONT.CAS(C) 939/2022, W.P.(C)
11063/2022, W.P.(C) 8785/2022, CONT.CAS(C) 1207/2022, W.P.(C)
9493/2020, W.P.(C) 1144/2021, W.P.(C) 1149/2021, W.P.(C)
1225/2021, W.P.(C) 1377/2021, W.P.(C) 5870/2021, W.P.(C)
5879/2021, W.P.(C) 7749/2021, W.P.(C) 7766/2021, W.P.(C)
7956/2021, W.P.(C) 10223/2021, W.P.(C) 11168/2021, W.P.(C)
11184/2021, W.P.(C) 11266/2021, W.P.(C) 11995/2021, W.P.(C)
11998/2021, W.P.(C) 12222/2021, W.P.(C) 12250/2021, W.P.(C)
12368/2021, W.P.(C) 12461/2021, W.P.(C) 13159/2021, W.P.(C)
13232/2021, W.P.(C) 13257/2021, W.P.(C) 13335/2021, W.P.(C)
14070/2021, W.P.(C) 14079/2021, W.P.(C) 14359/2021, W.P.(C)
14859/2021, W.P.(C) 1604/2022, W.P.(C) 1717/2022, W.P.(C)
2927/2022, W.P.(C) 2946/2022, W.P.(C) 3084/2022, W.P.(C)
3107/2022, W.P.(C) 3455/2022, W.P.(C) 3513/2022, W.P.(C)
4287/2022, W.P.(C) 4526/2022, W.P.(C) 4989/2022, W.P.(C)
5101/2022, W.P.(C) 5389/2022, W.P.(C) 5546/2022, W.P.(C)
5567/2022, W.P.(C) 5934/2022, W.P.(C) 6006/2022, W.P.(C)
6104/2022, W.P.(C) 6142/2022, W.P.(C) 6459/2022, W.P.(C)
6504/2022, W.P.(C) 6508/2022, W.P.(C) 6512/2022, W.P.(C)
6582/2022, W.P.(C) 6594/2022, W.P.(C) 6608/2022, W.P.(C)
6713/2022, W.P.(C) 6732/2022, W.P.(C) 6831/2022, W.P.(C)
7109/2022, W.P.(C) 7126/2022, W.P.(C) 7128/2022, W.P.(C)
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
Signature Not Verified
- 4 – Neutral Citation Number 2023:DHC:1872
7129/2022, W.P.(C) 7154/2022, W.P.(C) 7165/2022, W.P.(C)
7237/2022, W.P.(C) 7582/2022, W.P.(C) 7798/2022, W.P.(C)
7812/2022, W.P.(C) 7828/2022, W.P.(C) 7894/2022, W.P.(C)
7918/2022, W.P.(C) 8168/2022, W.P.(C) 8274/2022, W.P.(C)
8526/2022, W.P.(C) 8604/2022, W.P.(C) 8932/2022, W.P.(C)
8971/2022, W.P.(C) 8989/2022, W.P.(C) 9101/2022, W.P.(C)
11983/2022, W.P.(C) 16039/2022, W.P.(C) 9114/2022, W.P.(C)
9143/2022, W.P.(C) 9180/2022, W.P.(C) 9104/2022, W.P.(C)
9110/2022, W.P.(C) 9116/2022, W.P.(C) 9127/2022, W.P.(C)
9178/2022, W.P.(C) 9207/2022, W.P.(C) 9224/2022, W.P.(C)
9273/2022, W.P.(C) 9327/2022, W.P.(C) 9330/2022, W.P.(C)
9357/2022, W.P.(C) 9423/2022, W.P.(C) 9465/2022, W.P.(C)
9919/2022, W.P.(C) 10122/2022, W.P.(C) 10140/2022, W.P.(C)
10211/2022, W.P.(C) 10214/2022, W.P.(C) 10299/2022, W.P.(C)
10346/2022, W.P.(C) 10348/2022, W.P.(C) 10379/2022, W.P.(C)
10411/2022, W.P.(C) 10340/2022, W.P.(C) 10351/2022, W.P.(C)
10394/2022, W.P.(C) 10399/2022, W.P.(C) 10401/2022, W.P.(C)
10402/2022, W.P.(C) 10405/2022, W.P.(C) 10413/2022, W.P.(C)
10414/2022, W.P.(C) 10415/2022, W.P.(C) 10419/2022, W.P.(C)
10429/2022, W.P.(C) 10443/2022, W.P.(C) 10470/2022, W.P.(C)
10481/2022, W.P.(C) 10506/2022, W.P.(C) 11144/2022, W.P.(C)
10524/2022, W.P.(C) 10686/2022, W.P.(C) 10772/2022, W.P.(C)
10773/2022, W.P.(C) 10803/2022, W.P.(C) 10824/2022, W.P.(C)
11067/2022, W.P.(C) 11161/2022, W.P.(C) 11209/2022, W.P.(C)
11215/2022, W.P.(C) 11239/2022, W.P.(C) 11354/2022, W.P.(C)
11362/2022, W.P.(C) 11431/2022, W.P.(C) 11586/2022, W.P.(C)
11628/2022, W.P.(C) 11670/2022, W.P.(C) 11756/2022, W.P.(C)
11810/2022, W.P.(C) 11822/2022, W.P.(C) 12372/2022, W.P.(C)
12392/2022, W.P.(C) 12520/2022, W.P.(C) 12593/2022, W.P.(C)
12612/2022, W.P.(C) 12704/2022, W.P.(C) 12863/2022, W.P.(C)
13006/2022, W.P.(C) 13063/2022, W.P.(C) 13074/2022, W.P.(C)
13127/2022, W.P.(C) 13179/2022, W.P.(C) 13362/2022, W.P.(C)
13365/2022, W.P.(C) 13431/2022, W.P.(C) 13595/2022, W.P.(C)
13710/2022, W.P.(C) 13718/2022, W.P.(C) 13823/2022, W.P.(C)
13872/2022, W.P.(C) 13915/2022, W.P.(C) 13929/2022, W.P.(C)
14490/2022, W.P.(C) 14654/2022, W.P.(C) 14938/2022, W.P.(C)
15190/2022, W.P.(C) 15244/2022, W.P.(C) 15353/2022, W.P.(C)
15358/2022, W.P.(C) 15523/2022, W.P.(C) 15535/2022, W.P.(C)
15451/2022, W.P.(C) 15677/2022, W.P.(C) 15698/2022, W.P.(C)
15750/2022, W.P.(C) 16256/2022, W.P.(C) 16570/2022, W.P.(C)
16608/2022, W.P.(C) 16654/2022, W.P.(C) 16859/2022, W.P.(C)
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
Signature Not Verified
- 5 – Neutral Citation Number 2023:DHC:1872
16989/2022, W.P.(C) 17024/2022, W.P.(C) 17034/2022, W.P.(C)
17387/2022, W.P.(C) 17469/2022, W.P.(C) 17528/2022, W.P.(C)
17555/2022, W.P.(C) 17588/2022, W.P.(C) 28/2023, W.P.(C)
30/2023, W.P.(C) 47/2023, W.P.(C) 62/2023, W.P.(C) 72/2023,
W.P.(C) 74/2023, W.P.(C) 84/2023, W.P.(C) 99/2023, W.P.(C)
176/2023, W.P.(C) 253/2023, W.P.(C) 318/2023, W.P.(C) 372/2023,
W.P.(C) 431/2023, W.P.(C) 454/2023, W.P.(C) 460/2023, W.P.(C)
548/2023, W.P.(C) 578/2023, W.P.(C) 1889/2023, W.P.(C)
7131/2022, W.P.(C) 7177/2022 and W.P.(C) 2012/2023.
For Petitioners: Mr. Nishant Das and Ms. Aatrayi Das,
Advocates in Item Nos. 71, 266-269, 287,
290 and 291.
Mr. Deepak Gautam, Advocate in Item No.
93.
Ms. Akanksha Kapoor along with Mr.
Avinash Sharma and Mr. Sidanant
Chaudhary, Advocates in Item Nos. 87 and
174.
Mr. Mukesh Kumar Advocate in Item Nos.
4, 224, 259 and 299.
Mr. Sanyam Saxena and Mr. Nubair Alvi,
Advocates in Item No. 277.
Mr. Vibhor Bagga, Ms. Esha Dogra and Mr.
Yugantar Singh Chauhan, Advocates in Item
No.272
Mr. Shashwat Anand, Mr. Shashwat Parihar
and Mr. Dhruva Vig, Advocates in Item
Nos. 119, 187, 228, 229, 246 and 249.
Mr. Abhinav Agnihotri & Mr. Deepak
Vohra, Advocates in Item No. 88.
Ms. Divya Rana, Advocate for R-7 in Item
No. 270
Mr. Ritesh Khare Advocate in Item Nos. 12
and 15.
Mr. Hardik Vashisht & Ms. Adith Menon in
Item No. 16.
Mr. Ritesh Khare, Mr. Abhishek Gusain,
Ms. Namrata and Ms. Esha Tibriwal
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
- 6 – Neutral Citation Number 2023:DHC:1872
Advocates in Item Nos. 296, 297, 298, 300,
301 302, 303 and 306.
Mr. Souray Ghosh, Advocate in Item No.
244 and 282.
Ms. Akriti Arva, Counsel for Petitioner in
Item No. 172.
Mr. Rajiv Kapur & Mr. Akshit Kapur
Advocates for respondent bank in Item
Nos.113, 169, 170, 226 & 273
Ms. Zubeda Begum alongwith Mr. R. L.
Sinha, Advocates in Item No. 139.
Mr. Amandeep Singh, Mr. Karmveer, Mr.
Dilip Kumar Niranjan & Ajay Kumar,
Advocates in Item Nos. 5 and 258.
Ms. Harshit Goyal, Advocate in Item No.
295.
Mr. Deepak Parashar along with Mr. Prakhar
Singh, Advocates in Item No. 179.
Mr. Rahul Malhotra & Ms. Anchal Tiwari,
Advocates in Item Nos. 113, 146, 148, 149
and 254.
Mr. Alok Tripathi, Advocate in Item No.
216.
Ms. Rashi Jain and Mr. Mihir Garg,
Advocates in Item Nos. 136 and 143.
Mr. Manoj Yadav and Mr. Akshat Bisht,
Advocates in Item Nos. 120 & 121.
Mr. Akshay Srivastava, Mr. Piyush Singh &
Mr. Aditya Parolia, Ms. Mahima Ahuja and
Ms. Ridhi Jain Advocates in Item No.95,
117, 213, 237, 96, 98, 99, 101 to 105, 114,
124, 125, 142, 160, 162 to 163, 168, 195,
196, 201, 202, 203, 212 and 214.
Mr. Ehraz Zafar-petitioner No. 2-in-person in
Item No. 272.
Mr. Manish Patni, Advocate in Item No. 270.
Mr. Aayush Milruka and Mr. Vishal Hablani
in Item No. 124.
Mr. Akshay Sahay and Ms. Shradha
Narayan, Advocates in Item No. 280.
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
- 7 – Neutral Citation Number 2023:DHC:1872
Mr. Ratnesh Sharma and Mr. Rahul Raman,
Advocates in Item Nos. 166, 220, 255 and
256.
Mr. Sachin Bajpai and Ms. Sonam Priya,
Advocates in Item Nos. 13, 173, 262 and
279.
Mr. Siddhant Kumar and Ms. Vidhi
Udayshankar, Advocates in Item No. 58.
Ms. Anushree Narain and Mr. Mayank
Srivastava, Advocates in Item No.217 and
160.
Ms. Kiran Bhardwaj, Advocate in Item No.
226.
Ms. Anushree Malviya, Advocate in Item
No. 153.
Mr. Abhinay Sharma, Advocate along with
Ms. Sakshi Jain and Mr. Pooran Chand Roy,
Advocates in Item Nos. 157 and 159.
Mr. Mukul Mr. Davesh Chaurasia,
Advocates in Item No. 281.
Mr. Virender Pratap Singh, Ms. Priya
Mishra, Ms. Pinky Yadav and Ms. Shubhra
Parashar, Advocates for R-1/UOI in Item No.
306.
Mr. Chaitanyashil Priyadarshi, Ms. Saloni
Sharma and Mr. Tejaswi, Advocates in Item
Nos. 3, 236 and 263.
Mr. Aditya Bhattacharya, Mr. Abhinav
Jaganathan, Mr. Paresh B Lal and Mr.
Abhishek Singh Advocates in Item Nos. 91,
92, 150, 151, 154, 155, 158, 167, 197, 198,
199, 200, 307 and 308.
Mr. Deepak Prakash, Mr. Subhash
Choudhary, Mr. Ravindra Singh and Ms.
Monika Rai, Advocates in Item No.235.
Mr. Raghavendra M. Bajaj, Mr. Kumar
Karan and Mr. Nikhil Bamal, Advocates in
Item No.245.
Mr. Pradeep Kumar, Advocate in Item No.7.
Ms. Tanu Priya Gupta, Advocate in Item
No.2.
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
Signature Not Verified
- 8 – Neutral Citation Number 2023:DHC:1872
Mr. Bhaavan Mahajan, Advocate in Item
Nos. 133 and 134.
Mr. Aayush Agarwal, Advocate in Item
No.89.
Mr. Devansh Shekhar, Mr. Sanjeev Kumar
Singh and Mr. Bishm Pratap Singh, Mr.
Shighra Kumar Advocates in item No. 264
Ms. Rishi K. Awasthi, Mr. Usman G. Khan
and Mr. Rahul Kumar, Advocates in item
No. 271.
Mr. Deepak Biswas and Ms. Varsha
Agarwal, Advocates in item No. 47.
Mr. Saket Sikri, Mr. Vikalp Mudgal, Mr.
Kshitij Mudgal and Ms. Priya Singh
Advocates in item No. 251.
Ms. Shobhana Takiar, Advocate in Item No.
14
Mr. Shrey Nanda, Advocate in Item No. 100.
Ms. Swadha Gupta, Mr. Prabhat Kumar and
Mr. Anurag Dhar Dubey, Advocates in Item
No. 11.
Mr. Mayank Srivastava, Advocate in Item
No. 217
Mr. Anshul Gupta, Ms. Kirti Dua, Mr.
Shubham Kaushik, Mr. Ravi Shandilkar, Ms.
Shubhangi Tiwari and Mr. Prakhar
Bharadwaj, Advocates in Item Nos.06, 10,
94, 95, 107-113, 118, 123, 132, 138, 140,
152, 183, 192, 219, 221-223, 227, 233, 247
and 257.
Mr. Bharat Bhushan, Advocate in Item Nos.
173 and 260.
Mr. Sidhant Kumar, Ms. Manyaa Chandok,
Ms. Muskan Gopal and Ms. Vidhi
Udayshankar, Advocates in Item No.58.
Mr. Dilip Kumar Niranjan, Advocate in
W.P.(C) 2012/2023.
Mr. Sandeep Bajaj, Mr. Devansh Jain and
Ms. Vasudha Chadha, Advocates in Item
No.185.
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
- 9 – Neutral Citation Number 2023:DHC:1872
Mr. M. P. Sahay, Ms. Eccha Shukla, Ms.
Awantika and Mr. Sachin Kharb, Advocates
in Item No.145.
For Respondents: Mr. Neeraj, SPC with Mr. Sahaj, Mr.
Vedansh, Mr. Anand and Mr. Rudra,
Advocates for UOI in Item Nos. 154, 186,
237, 170 and 242.
Ms. Archana Surve, GP, Mr. Jatin Singh and
Ms. Roppali, Advocate for Respondent in
Item Nos. 85 and 276.
Ms. Archana Pathak Dave and Mr. Parmod
Kumar Vishnoi, Advocates for R-2 in Item
No. 125.
Mr. Nimitjya Chaudhary, SPC, alongwith
Deepak, Advocate for R-1 (UOI) in Item
Nos. 168 and 179.
Ms. Aakansha Kaul and Mr. Digvijay Prasad,
Advocates for R-UOI in Item No. 235.
Mr. Virender Pratap Singh Charak, Ms.
Shubhra Parashar and Ms. Pinky Yadav,
Advocates for R-1/UOI in Item Nos. 3 and
40.
Ms. Bharti Raju, Sr. Panel Counsel, Chetanja
Puri, GP & Anand Awasthi, Advocate for R-
1 (UOI) in Item No. 236.
Ms. Rishi K. Awasthi, Mr. Usman G. Khan
and Mr. Rahul Kumar Gupta for R-3,
Advocates in Item No. 237
Mr. Nirvikar, Advocate for R-1/UOI in Item
Nos. 132, 142 and 257
Ms. Ayshwara Chander and Mr. K. S. Pratap,
Advocates for R-3 in Item Nos. 124 and 163.
Mr. Sushil Raaja, SPC for UOI in Item
Nos.121and 300.
Mr. S. K. Tyagi, CGSC along with Mr.
Abhishek Singh, G.P. for Respondent in Item
No.63.
Mr. Pallav Saxena alongwith Mohammad,
Mr. Diwaker and Mr. Abdul Wasin,
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
- 10 – Neutral Citation Number 2023:DHC:1872
Advocates in Item Nos. 95, 96, 98, 105, 164,
168 and 248.
Mr. Vijay Joshi and Mr. Gurjas Singh
Narula, Advocates for UOI/ Respondent in
Item No. 101.
Mr. Satya Ranjan Gusain (Central Govt. Sr.
Panel) and Mr. Kautilya Birat for
Respondent Nos. 1 and 3 in Item No. 140.
Mr. Om Prakash along with Mr. Chandresh
Pratap, Ms. Swati Mishra, Ms. Parnashree
Banerjee and Mr. Aniruidh Sukla (GD) for
the Respondent/ Union Of India in Item No.
87.
Mr. Siddharth Khatana, SPC and Mr. Rahul
Kumar Sharma (GP) Counsels for
Respondent-1/UOI in Item Nos. 5 and 170.
Mr. Kunwar Sachdev, IDBI, Advocate for
Respondent No. 12 in Item No. 33.
Mr. Rahul Chauhan, Advocate for Axis Bank
Ltd. in Item Nos. 1, 88 and 121.
Ms. Reema Khorana, Advocate for UOI in
Item No.89.
Mr. Ajay Uppal, Advocate for R-4 in Item
No.6.
Ms. Nidhi Raman, CGSC along with Mr.
Zubin Singh and Ms. Charu Modi,
Advocates in Item Nos. 112 and 256.
Mr. Vedanta Varma and Mr. Vibhor Kush,
Advocates for R- 3 to 5 in Item Nos. 97, 98
and 99.
Mr. Rishabh Sahu, CGSC with Mr. Sameer
Sharma, Advocate for R-1 in Item Nos. 136,
204, 247, 260, 289 and 296.
Mr. Rishabh Sahu and Sameer Sharma
Advocates for R-3 in Item No. 230.
Mr. Ramesh Babu. Ms. Manisha Singh, Ms.
Tanya Chowdhary, Ms. Jagriti Bharti and
Mr. Rohan Srivastava, Advocates in Item
Nos. 1, 3-6, 10, 12-15, 58, 87, 88, 94-99,
101-105, 107-115, 117-121, 123-128, 131-
134, 136-149, 152-154, 157, 159-164, 168-
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
Signature Not Verified
- 11 – Neutral Citation Number 2023:DHC:1872
171, 173, 176-184, 186-196, 198, 201-203,
206-208, 210, 212-215, 218-228, 230-237,
239, 241, 243, 245-253, 255-260, 262-265,
270, 273, 275, 278-280, 282, 284, 296-303,
306 and 308.
Mr. Govind Manoharan and Ms. Diksha
Tiwari Advocates for Respondent- NCTE in
Item No. 142.
Ms. Amrita Singh Advocate in Item Nos.
120, 121, 128, 139, 156, 171, 186, 234 and
246.
Mr. Atul Kumar Singh Advocate in Item
Nos. 8, 9, 63 and 294.
Mr. Mimansak Bhardwaj, Govt. Pleader for
UOI in Item Nos. 209-210.
Mr. Jai Prakash, S.P.C with Mr. Divyanshi
Maurya Advocate in Item No. 1 and 274.
Ms. Nidi Raman, CGSC along with Mr.
Abhishek Singh, G.P for R-1 in Item No.
256.
Mr. Jatin Singh, Mr. Keshav Sehgal, Mr.
Shivam Gaur and Mr. Kashish Bajaj,
Advocates for UOI in Item Nos. 162, 201,
245, 250, 252, 255, 264, 270, 276 and 286.
Ms. Ritu Reniwal- SPC for R-1/ UOI in Item
No. 239.
Ms. Pratima N. Lakra, CGSC along with Mr.
Chandan Prajapati and Mr. Apoorv Sharma
Advocates for R-1 UOI in Item Nos.
103,195, 196 and 197, 241, 202, 203, 215
and 217.
Mr. Kavindra Gill- SPC for R-1/ UOI in Item
Nos. 108 and 193.
Mr. Neeraj SPC, Mr. Sahay, Mr. Vedansh
Anand and Mr. Rudra, Advocates in Item
Nos. 154, 186 and 237.
Mr. Siddharth Khatah, SPC, Mr. Rahul
Kumar Sharma, G.P. for UOI in W.P.(C)
15237/2022.
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
- 12 – Neutral Citation Number 2023:DHC:1872
Mr. Siddharth Khatah, SPC, Mr. Sahay and
Mr. Vedansh Anand Advocates for UOI in
Item No. 242.
Mr. Siddhartha Khatah, SPC, Mr. Sahay, Mr.
Vedansh Anand, Advocates for UOI in Item
No. 170.
Ms. Ekta Chaudhary, Mr. Divyank Dutt
Dwivedi, Advocates for R-3 Union Bank in
Item Nos. 10 and 140.
Mr. Naginder Benipal, Senior Panel Counsel
for R-UOI in Item No.158.
Mr. Amit Mahaliyan, Advocate for R-2 in
Item No. 149.
Mr. Santosh Kumar Raut and Mr. Abhishek
Chaudhary, Advocates for Canara Bank in
Item No. 147.
Mr. Sameer Vats, Advocate in Item No. 125.
Mr. Dev. P. Bhardwaj CGSC along with Ms.
Anubha Bhardwaj Advocate for R-UOI in
Item Nos. 97, 122 and 138.
Mr. Venancio D'Costa, Ms. Astha and Mr.
Himanshu Sharma, Advocates for PNB HFL
(PNB housing Finance) in Item Nos. 86, 95,
159, 168, 179, 210, 212, 244, 261, 263 and
277.
Ms. Monika Arora, CGSC along with Mr.
Yash Tyagi, Advocate for R-UOI in Item No.
94.
Mr. Ripudaman Bharadwaj CGSC with
Kushgra Kumar GP Advocates in Item No.
14.
Mr. Vinay K. Sharma and Mr. Vikram
Aditya Mishra Advocates for R-6 in Item
No. 6.
Mr. Chiranjiv Kumar along with Mr. Mukesh
Sachdeva for UOI in Item No. 15.
Mr. Anurag Ahlualia, CGSC for R-1 in Item
No. 95.
Mr. Ajay Digpaul, CGSC along with Ms.
Swati Kwatra and Mr. Kamal Digpaul, for R-
UOI Advocates in Item No. 96.
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
Signature Not Verified
- 13 – Neutral Citation Number 2023:DHC:1872
Mr. Samir Malik, Mr. Shahan Ulla and Mr.
Krishan Kumar, Advocates for R-3 in item
No. 98, 105, 117 and 280.
Mr. O.P. Gaggar and Mr. Sachindra Karn,
Advocates for R-11 (Union Bank of India) in
Item No. 102.
Mr. O.P. Gaggar & Mr. Sachindra Karn,
Advocates for R-3 (Union Bank of India) in
Item Nos. 106, 108 and 227.
Mr. Ravi Prakash, CGSC along with Mr.
Varun Aggarwal and Mr. Amon Rewaria and
Farmon Ali, Advocates for R- UOI in Item
Nos. 28, 29 120, 209, 210, 213, 263 and 270.
Mr. Jitesh Vikram Srivastava, Sr. Panel
Counsel alongwith Mr. Prajesh Vikram
Srivastava Advocates for R-UOI in Item
Nos. 107, 108, 117 and 135.
Ms. Nidhi raman, CGSC alongwith Mr.
Zubin Singh, Advocate for R-UOI in Item
Nos. 112 and 256.
Mr. Rajesh Kumar, SPC, Ms. Ramneet Kaur
and Mr. Shaurya Katoch, Advocates for R-
UOI in Item Nos. 118, 227 and 127.
Mr. Chritarth Palli and Mr. Ritik Shah,
Advocates for R-4/State of Haryana in Item
Nos. 120-121.
Mr. R. K. Sinha, Mr. Ayan, Ms. Vandana ,
Atul Nayak and Mr. Dheeraj, Advocates in
Item No. 122
Ms. Mani Gupta, Ms. Saumya Upadhyay,
Mr. Aman Choudhary and Ms. Sonali Jain,
Advocates for R-3 in Item No. 126.
Mr. Premtosh Mishra and Mr. Vasoodev
Sharma, Advocates for SBI in Item Nos.68,
126 and 141.
Ms. Amrita Singh Advocate for R-1 in Item
No. 11.
Ms. Nishtha Jain Advocate for R-2 in Item
No. 11.
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
- 14 – Neutral Citation Number 2023:DHC:1872
Ms. Monika Arora, CGSC along with Mr.
Yash Tyagi, Advocate for R-UOI in Item No.
128.
Mr. Niraj Kumar, Sr. Central Govt. Counsel
for R-1/ UOI in Item No. 130.
Mr. Jitesh Vikram Srivastava, Sr. Panel
Counsel along with Mr. Prajesh Vikram
Srivastava, Advocate for R-UOI in Item Nos.
117 and 135.
Mr. Gaurav Sharma, Sr. Panel Counsel along
with Jitendra Kumar Tripathi, GP, Mr.
Siddhartha Nagpal, Advocate for R-UOI in
Item Nos. 8 and 243.
Mr. Siddharth Khatana, Sr. Panel Counsel for
R/UOI in Item No.170.
Mr. Virendra Pratap Singh Charak and Mr.
Shubra Prashar, Advocates for R-1 in Item
No. 40.
Mr. Nikhil Verma, and Mr. Rishabh Jain,
Advocates for R-2 in Item No. 71.
Mr. Farman Ali, Sr. Panel Counsel along
with Ms. Usha Jomnal, Advocates for UOI in
Item Nos. 104, 207, 297 and 303.
Mr. Ajay Kohli and Ms. Dipika Prasad,
Advocates for R-PNB in Item Nos. 97, 98,
100, 101, 102, 103, 105, 109 and 198.
Mr. Akshay Amritanshu and Mr. Samyak
Jain, Advocates for R-1 in Item No. 219.
Ms. Uma Prasuna Bachu, Sr. Panel Counsel
for R-1/UOI in Item No. 160.
Mr. Sandeep Vishnu, Sr. Panel Counsel for
R/UOI in Item No. 172.
Mr. Anil Soni, CGSC with Mr. Devvrat
Yadav, Advocate for R-UOI in Item No. 21,
22, 51, 109 and 305.
Mr. Lalit Mohan & Mr. Videh Vaish, Ms.
Aaknsha and Abhay Gupta Advocates for R-
2 in Item Nos. 129 and 130
Mr. Rishabh Sahu and Mr. Akhil Anand
Advocates for R-1/UOI in Item No. 296.
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
- 15 – Neutral Citation Number 2023:DHC:1872
Mr. Rishabh Sahu and Mr. Akhil Anand
Advocates for UOI in Item Nos. 136, 247,
260, 204, 230 and 289.
Mr. Rishabh Sahu and Mr. Akhil Anand
Advocates for HDFC Respondent in Item
Nos. 204 and 230.
Mr. Kushagra Singh, Mr. Abhishek Singh
and Aalok Kumar Advocates for R-5 in Item
No. 246.
Mr. Gurtejpal Singh, Ms. Suditi and Ms.
Aashna Arora, Advocates in Item No. 242.
Mr. Mukul Singh, CGSC for R-UOI in Item
No. 199, 200, 224 and 233.
Mr. T. Singhdev, Mr. Anum Hussain, Mr.
Tanishq Srivastava, Mr. Aabhas Sukhramani,
Mr. Bhanu Gulati, Ms. Ramanpreet Kaur and
Abhijit Chakravarty, Advocates for R-1/
NMC in Item No. 304.
Mr. Rajendra Sahu and Mr. Akhil Anand
Advocates in Item No. 288.
Mr. Saurabh Duggal, Advocate for R-1/UOI
in Item No. 291.
Mr. Tushar Pandey and Mr. Vaibhav Luthra,
Advocates for R-4 in Item No. 218.
Mr. Tushar Pandey and Mr. Vaibhav Luthra,
Advocates for R-5 in Item No. 162.
Mr. Anupam Singh and Mr. Nipun,
Advocates for R-Axis Bank in Item Nos. 88,
200 and 209.
Mr. Raghvendra Shukla, Senior Panel
Counsel along with Anil Devlal, Advocate
for R-UOI in Item No. 4.
Mr. Pallav Saxena, Mr. Nishant Awana, Mr.
Hardik Choudhary, Advocates for R-IIFL in
Item Nos. 95, 96, 98, 105, 164, 168 and 248.
Mr. Rajat Bhalla, Advocate for Respondent
No. 2 in Item No.275.
Mr. Rakesh Kumar, CGSC along with Mr.
Sunil, Advocate for R-UOI in Item No. 120.
Mr. Himanshu Sinha, Mr. Bhuwan Dhoopar
and Mr. Parash Biswal, Advocates for R-
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
Signature Not Verified
- 16 – Neutral Citation Number 2023:DHC:1872
HDFC Ltd in Item Nos. 42, 79, 100, 136,
168 and 225.
Mr. Ruchir Mishra, Mr. Mukesh Kumar
Tiwari, Ms. Reba Jeana Mishra and Mr.
Sanjiv Kr. Saxena Advoates for R/UOI in
Item No. 105.
Mr. Nitin Khanna, Advocate for R-1 in Item
No. 124.
Mr. K.K. Jha Sr. Panel Counsel along with
Mr. Avinash Singh Advocate for R-1 &
5/UOI in Item No. 2.
Mr. Vineet Dhanda, CGSC along with Mr.
Shubham Prasad & Ms. Gurleen Kaur,
Advocates for R-UOI in Item Nos. 12, 150,
151, 155, 211, 212 and 216.
Mr. Atul Krishna, Sr. Panel Counsel along
with Mr. Jitendra Kumar, Govt. Pleader for
R-UOI in Item No. 144 and 92.
Mr. Atul Krishna, Sr. Panel Counsel for R-
2/UOI in Item No. 92.
Ms. Arunima Dwivedi CGSC alongwith Ms.
Pinky Pawar and Mr. Aakash Pathak,
Advocates for R-UOI in Item No. 197, 208
and 214.
Mr. Sanjeev Singh, MS. Ridhi Pahuja, Mr.
Dhruv Chawla and Ms. Garima Saxena
Advocates for R-14 in Item Nos. 145, R- 6 in
Item No. 172, R-5 in Item Nos. 173, 237 R-3
in Item Nos. 181, 182 and 280 R-1 in Item
No. 282.
Mr. Vikrant N. Goyal, along with Ms.
Ayushi Garg, Mr. Tesu Gupta, Advocates for
R-UOI in Item Nos. 95 and 283.
Mr. Sanjeev Singh, MS. Ridhi Pahuja, Mr.
Dhruv Chawla and Ms. Garima Saxena
Advocates for R-8 in Item no. 95, R- 9 in
Item No. 102, R-6 in Item No. 162 R-7 in
Item No. 173.
Mr. Pradeep Kumar Jha, Sr. Panel Counsel
for R-1 (UOI) in Item No. 114.
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
- 17 – Neutral Citation Number 2023:DHC:1872
Mr. Sanjeev Singh, Mr. Dhruv Chawla, Ms.
Ridhi Pahuja & Mr. Dhruv Chawla, Ms.
Tanija Bansal, Ms. Garima Saxena
Advocates for R-3 in Item Nos. 110, 118,
217, 243, R-1 in Item No. 127, 169, R-7 in
Item Nos. 128, 281, R-5 in Item no. 239, R-4
in Item Nos. 252, 297, R-8 in Item No. 270.
Ms. Shobhana Takiar, Advocate for R-NHB
in Item Nos. 120, 121, 143 and 161.
Mr. Nitinjya Chaudhry, Senior Panel
Counsel with Mr. Deepak, Advocate for R-1
(UOI) in Item Nos. 168 and 179.
Mr. Vikas Sethi and Mr. Altamish,
Advocates for R-Supertech Ltd in Item Nos.
3, 58, 164, 216, 238, 250, 262, 264, 279, 283,
291, 294 and 295.
Ms. Aarzoo Aneja, Ms. Vanshita Gupta and
Mr. Amit Kumar, Mr. Asit Kumar,
Advocates for R-3 in Item No. 169.
Mr. Rohit Kumar, Advocate in Item No. 259
along with Mr. Abhigyan Siddhant, GP.
Mr. Kushank Sindhu, Mr. Gazal Ghai and
Mr. Anmol Singh, Advocates for R-5 in Item
No. 118.
Mr. Jai Prakash, Sr. Panel Counsel along
with Mr. Siddhant Gupta, GP for R-1 UOI in
Item No. 1.
Mr. Akash Vajpai, Senior Panel Counsel
along with, Mr. Rudra Paliwal GP for R-UOI
in Item No. 13
Ms.Manisha Agrawal Narain, CGSC
alongwith Mr. Sandeep Singh Somria,
Advocate for R-1/UOI in Item No. 7
Mr. Manish Kumar Sr. Panel Counsel along
with Mimansak Bhardwaj for R-UOI in Item
No. 8.
Mr. Subhash Tanwar, CGSC alongwith Mr.
Ashish Chaudhary, Advocates for R-UOI in
Item Nos. 258 and 248.
Mr. Manish Kumar Sr. Panel Counsel along
with Mr. Abhigyan Siddhant, GP and Mr.
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
Signature Not Verified
- 18 – Neutral Citation Number 2023:DHC:1872
Rohit Kumar, Advocate for R-1 in Item No.
280.
Mr. Subhash Tanwar, CGSC along with Mr.
Ashish Chaudhary, Advocates for R-UOI in
Item Nos. 258 and 248.
Mr. Dev. P. Bhardwaj and Anubha
Bhardwaj, Govt. Counsel for UOI with Mr.
Sachin Singh, Advocate in Item No. 97, 122,
138 and 182 .
Mr. Ajay Kumar Panday, Sr. Panel Counsel
along with Mr. Piyush Mishra for R-2 (UOI)
in Item No. 154.
Mr. Santosh Kumar Raut and Mr. Abhishek
Chaudhary, Advocates for R-National
Housing Bank in Item Nos. 88, 97, 97, 128,
136, 137 and 270.
Ms. K.M. Monika and Mr. Krishna Kr.
Sharma, Advocates in Item No. 169.
Ms. Anushkaa Arora, Sr. Panel Counsel
along with Ms. Jyoti, Advocate and Ms.
Seema Singh, GP for R-UOI in Item No. 10
and 171.
Ms. Anam Siddiqui, Advocate for R-4 in
Item No. 277.
Mr. Satya Ranjan Swain SPC and Mr.
Kautilya Birat Advocates for R-1 and 3 in
Item No. 140.
Mr. Gagan Kumar, Advocate along with Ms.
Nishtha Kaura, Advocate for UOI in Item
No. 298.
Mr. Shashwat Roy, Ms. Sangeeta Sondhi,
along with Mr. Gorang Goyal, Advocate for
Indiabulls in Item Nos. 87, 89, 120, 173, 174,
176, 177, 178, 184, 193, 194, 206, 207, 208,
220, 236, 237, 251, 279, 287, 290, 292, 298,
03, 05, 07 and 16.
Mr. Kuber Dewan, Ms. Neeharika Agarwal,
Ms. Trisha Raychaudhuri and Mr. Kaustav
Srivastava, Advocates for R-ICICI Bank in
Item Nos. 6, 30, 31, 58, 88, 93, 95, 96, 98-
100, 102, 104, 105, 114, 116, 119, 121, 124,
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
Signature Not Verified
- 19 – Neutral Citation Number 2023:DHC:1872
125, 128, 130, 138, 151, 155, 162, 166, 168,
173, 177, 180, 183, 185, 187, 203, 212, 221,
224, 229, 230, 232, 233, 237, 240, 242, 247,
249, 253, 254 and 265.
Mr. Neeraj Sr. Panel Counsel along with Mr.
Sahay, Mr. Vedansh and Mr. Rudra
Advocates for UOI in Item No. 186,154, 237,
170, 242 and 157.
Mr. Manu Beri, Advocate along with Mr.
Prateek Kasliwal, Advocate for
TRANSUNION CIBIL in Item Nos. 1, 3 to
6, 10, 12-13, 15, 87, 88, 93-95, 98, 99, 101-
114, 117-118, 123-125, 132, 138-144, 152,
157, 160, 162-164, 168, 173-175, 177, 183-
184, 192, 195-196, 201-203, 206, 208, 212-
215, 218, 219, 221-224, 226, 227, 230, 233,
235-237, 241-243, 247, 248, 250, 252-253,
257, 259, 260, 262, 263, 265, 279, 280 and
296 to 303.
Ms. Aditi Tomar, Advocates for PNB
Housing Finance Ltd. in Item Nos.
92,131,191,211,250,265 and 291.
Mr. Ratna Dwivedi Dhingra and Mr. Bhrigu
Dhami, Advocates for SuperTech in Item
Nos. 3, 5, 9, 13, 30, 63, 87, 95, 96, 101,102,
115, 143, 153, 168, 172-173, 176, 178-182,
188-190, 192-196, 201-202, 207, 208, 212,
216, 214, 236, 238, 241, 253, 258, 262, 263,
278 and 283.
Mr. Aman Naqvi, Advocate for Mr. Shadan
Farashat, ASC, GNCTD in Item No.97.
Mr. Siddharth, Advocate for R-1 in Item
No.242.
Mr. Abhishek, Advocate for R-1 in Item
No.63.
Ms. Abha Malhotra, Sr. Central Govt.
Counsel alongwith Mr. Aditya Kapoor,
Advocate for UOI in W.P.(C) 2012/2023.
Mr. Shashwat Roy & Mr. Sangeeta Sondhi,
Advocates for R-3 in W.P.(C) 2012/2023.
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
- 20 – Neutral Citation Number 2023:DHC:1872
Mr. Rahul Malhotra and Ms. Himanshi
Madan, Advocates for HDFC in Item No.95.
Mr. Siddharth Khatana and Mr. Rishav
Dubey, Advocates for UOI in Item No.242.
------------------------------------------------------------------------------------
% Pronounced on: 14.03.2023
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J U D G M E N T
1. This batch of petitions, involving similar issues, is being
decided by this common order.
2. The petition bearing No. W.P.(C) 9491/2020 is being treated as
a lead matter, therefore, for the sake of convenience, the facts and
pleadings are being referred therefrom. However, facts of individual
cases would be referred, wherever so required.
3. In all these petitions, the reliefs claimed are almost similar
except for small variations. The dominant relief claimed is to issue a
writ in the nature of mandamus/certiorari or any other writ directing
the respondent banks/financial institutions not to charge the pre-EMIs
or full EMIs from the petitioners/alike homebuyers. It is also prayed
that the respondent banks/financial institutions be directed not to
charge the pre-EMIs/full EMIs till the possession is not delivered by
the respondents builder/alike real estate developers to the petitioners
with respect to their respective flats. For the sake of clarity prayer
clause from the lead writ petition i.e. W.P. (C) 9491/2020 is being
reproduced as under: -
“i. Allow the present Petition;
ii. Issue a Writ in the nature of the Mandamus/Certiorari
or any other writ directing the Respondent
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
- 21 – Neutral Citation Number 2023:DHC:1872
banks/Financial Institutions to not charge the Pre-EMIs or
full EMIs from the Petitioners/alike homebuyers;
iii. Issue a Writ in the nature of Mandamus/Certiorari or
any other writ directing the Respondent Banks/Financial
Institutions to charge all the Pre-EMIs/full EMIs till the
possession is not delivered from the Respondent
builder/alike real estate developers;
iv. Issue a Writ in the nature of Mandamus/Certiorari or
any other writ directing the Respondent Banks/Financial
Institutions to refund the Pre-EMIs/full EMIs paid by the
Petitioners to the Petitioners and recover the same from
the Respondent builder herein;
v. Issue a Writ in the nature of Mandamus/Certiorari or
any other writ directing the Respondent state to frame
clear and strict guidelines to regulate the transactions
pertaining to the subvention scheme prevalent in the real
estate sectors;
vi. Issue guidelines to the effect that any financial
institution including banks/Financial Institutions ought not
to auction the property of any real estate builder without
the consent of the homebuyers who have invested their
hard money and also of the Respondent state authorities;
vii. Issue a Writ in the nature of Mandamus/Certiorari or
any other writ directing the Respondent state to make sure
that the Petitioners are provided their respective flats in a
time bound manner;
viii. Pass an appropriate order or direction against
Respondent No 2 for initiating strict action against
Respondent banks/Financial Institutions for violating the
rules and regulations laid down by Respondent No 2 as a
regulator for the banking sector; and/or
ix. Pass appropriate guidelines to be followed by all the
Nationalized and Private Banks/Financial Institutions
including the Respondent banks/Financial Institutions
herein for release/disbursal of funds to Real Estate
Companies in case of loans sanctioned against any real
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
- 22 – Neutral Citation Number 2023:DHC:1872
estate project so that such acts are not repeated in future;
and/or
x. Pass an appropriate order or direction appointing a
committee of experts to examine the grounds raised by the
Petitioner in their representation submitted to the
Respondent(s) with a direction to submit a report in a time
bound manner; and/or
xi. Pass an appropriate order or directions to the
Respondent No. 1 to frame guidelines and monitoring
system where the citizens/aggrieved people submitting
their objections can be monitored in a transparent and
time bound manner; and/or
xii. Pass order(s) as this Hon'ble Court may deem fit and
proper in the present case."
4. After issuance of notice in the lead matter and in some of the
other writ petitions, the respondents have filed their
objections/counter affidavits. On 31.01.2022, this court passed an
interim order restraining the respondents from taking any coercive
steps against the petitioners.
5. When the batch of these writ petitions was taken up for hearing
by this court on 09.01.2023, the learned counsel appearing on behalf
of the respondent-banks/financial institutions and learned CGSC has
raised preliminary objections regarding maintainability of these writ
petitions in view of the availability of efficacious alternative remedies
under various enactments. Accordingly, the parties were called upon
to make their submissions. On 18.01.2023, the parties were heard
extensively on the question of maintainability of these writ petitions
and they were further directed to submit their written
submissions/clarifications, if any. On 31.01.2023, the written
submissions filed by respective parties were also taken on record and
the matter was reserved for orders, however, on 15.02.2023, again the
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
- 23 – Neutral Citation Number 2023:DHC:1872
cases were listed alongwith fresh filed cases and further submissions
were heard on the question of entertainability of the petitions.
6. To deal with the foregoing issue, it would be befitting to survey
the pleadings in W.P.(C) 9491/2020. Following important facts are
discernible:-
(i) The petitioner is an association by the name of Supertech Urban
Home Buyers Association (SUHA) Foundation consisting of 123
home buyers. The respondent No.3-Supertech Limited is a builder and
respondent Nos. 4 to 11 are the banks/financial institutions.
(ii) The respondent No. 3-builder (hereinafter referred to as
„builder‟) in the year 2013-2018 publicized its project being developed
by it at Sector-68, Gurgaon, Haryana, namely, „Supertech Hues‟,
„Azalia‟ and „Scarlet‟ (hereinafter referred to as „Projects‟) through
various newspapers. The members of the petitioner-association
booked their flats and in order to meet financial demands, they took
home loans for their respective residential units through respondent-
banks/financial institutions. The home loans were availed by the
members of the petitioner association on the basis of subvention
schemes, whereby, the respondents-banks/financial institutions would
disburse the sanctioned amount to the respondent-builder directly and
the respondent-builder was supposed to pay the pre-EMIs or full EMIs
on the sanctioned loan. The separate agreements were executed
between the members of the petitioner-association and the
respondents-banks/financial institutions. As per the terms and
conditions of respective agreements, the builder paid pre-EMIs or full
EMIs to the respective respondent-banks/financial institutions.
However, around December, 2018, the builder started defaulting in
payments of the pre-EMIs or full EMIs and the respondent-
banks/financial institutions started sending payment reminders to the
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
- 24 – Neutral Citation Number 2023:DHC:1872
members of the petitioner-association. According to the petitioners,
the builder was obligated to deliver the possession of the residential
flats by December, 2019. However, in none of the cases the
respondent-builder has fulfilled its obligation. When the builder
stopped paying pre-EMIs, the Banks have started sending demands to
the members of the petitioner-association. The members of the
petitioner-association raised the grievance that the respondent-
banks/financial institutions have not followed the guidelines issued by
the Reserve Bank of India (hereinafter referred as „RBI‟) and have
disbursed the amount without taking into consideration the fact that
the builder has not made any construction of flats.
(iii) It is the case of the petitioner that the respondents have failed to
fulfil and abide by their duties and obligations, as a result of which the
members of the petitioner-association are suffering heavily and are
deprived of their basic fundamental right guaranteed under Articles 19
and 21 of the Constitution of India. They, therefore, have prayed for
the relief, as has been reproduced in preceding paragraphs.
7. There are two issues that are required to be determined by the
present order, them being:
a) Whether the present writ petition is maintainable against
the respondent.
b) Whether the present writ petition deserves to be
entertained by this court.
8. The stand of the builder is that the petition, at the instance of the
association, would not be maintainable in the absence of clear
disclosure of the names of the members of the petitioner-association.
It is also stated that the respondent No.3 is a purely private limited
company and is not a State or its instrumentality. The dispute between
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
Signature Not Verified
- 25 – Neutral Citation Number 2023:DHC:1872
respondents and the petitioner has arisen out of an agreement entered
between them. The same is completely contractual in nature within
the realm of contract law; therefore, the petition would not be
maintainable. It is stated that if the petitioner or any of its member has
any grievance, appropriate alternative remedies are available to them
approaching Real Estate Regulatory Authority (hereinafter referred to
as „RERA‟) or consumer court. It is stated that some of the home
buyers have already moved under the Real Estate Regulations and
Development Act, 2016 (hereinafter referred to as „RERA Act‟), and
therefore, in view of the availability of civil remedy, extraordinary
jurisdiction of this court should not be exercised.
9. The respondent No.3-builder in its written submissions states
that Corporate Insolvency Resolution Process (CIRP) has been
initiated against it by National Company Law Tribunal (NCLT),
Delhi. After initiation of the said process, a moratorium in terms of
Section 14(1)(a) of Insolvency and Bankruptcy Code, 2016 (IBC,
2016) was imposed. According to the builder, if the relief prayed for
in the instant writ petition is granted, the same would have direct
impact on pending CIRP. Reliance in this regard is placed on a
decision in the case of P. Mohanraj & Ors. v. M/s. Shah Brothers
1
Ispat Pvt. Ltd. . It is also stated that builder is not discharging any
public duty and, therefore, is not amenable to the writ jurisdiction of
this court. According to respondent No.3, there are various contracts
between the parties which relate to loan transactions. He explains that
the buyer agreement and Memorandum of Understanding was entered
into between the homebuyers and respondent No.3-builder; and
tripartite agreement was entered into between homebuyers,
banks/financial institutions and respondent No.3-builder. Any dispute
1
(2021) 6 SCC 258
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relating to the interpretation or enforcement of the terms and
conditions of such contract cannot be agitated in writ jurisdiction. The
liability to pay off the loan and interest is only of the petitioners, who
availed the loan as per their own requirement from the bank/financial
institutions. Reliance is also placed on the decision of State of U.P. &
2
Ors. v. Bridge & Roof Co. (India) Ltd . Since the amount has been
disbursed on account of flat buyers agreement therefore, the reliance
has been placed in the cases of Bareilly Development Authority v.
3
Ajay Pal Singh and National Highway Authority of India v. Ganga
4
Enterprises & Anr. . According to respondent No. 3-builder, even the
home buyers can approach the NCLT or file a civil suit for alleged
grievance against the respondent-company. He states that in some of
the cases the disputes are to be resolved through arbitration. The
reliance is also placed on the decisions in the cases of Sunil Tandon v.
5
Union of India & Ors. and M/s Apana Logistics Pvt. Ltd. v.
6
Container Corporation of India .
10. Respondent No. 2-Reserve Bank of India, while adopting the
counter affidavit filed in the petition being W.P.(C) 9491/2020, states
that the cause of action has not arisen within the territorial jurisdiction
of this court and therefore, these writ petitions should not be
entertained only on account of the fact that seat of Government bodies
situates in Delhi. It is the specific case of RBI that the dispute between
the members of the petitioner-association and respondent No. 3-
builder is a subject matter of a contractual agreement executed
between the parties. The respondent No.2 only enjoys regulatory
power under Section 35A of the Banking Regulations Act, 1949 to
2
(1996) 6 SCC 22
3
(1989) 2 SCC 116
4
(2003) 7 SCC 410
5
W.P.(C) 10645/2021
6
2019 SCC OnLine Del. 8704
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issue necessary directions to banking companies generally or to any
banking Companies in particular from time to time. The RBI has
issued various directions to ensure that the banking affairs in the
country is uniformly conducted as per the required standard to secure
proper management of bank‟s finance as well as to the interest of
depositors and banks. The RBI is empowered under Section 47-A of
the Banking Regulation Act, 1949 to impose monetary penalty on the
banks for contravening the provisions of Banking Regulations Act, or
if any default is made in compliance with the requirement of that Act.
It is stated that Master Circular on Housing Finance dated July 01,
2015 (hereinafter referred to as „Master Circular‟) was issued which
has advised the banks to ensure proper use of funds and to prevent
diversion/siphoning of funds by the borrowers/lenders. The directions
of Master Circular were further reiterated in another Circular dated
July, 15, 2015 ( Annexure R-2) . It has been emphasised that subvention
schemes are offered by builders/developers, and regulations of
RBI/National Housing Bank (hereinafter referred to as „NHB‟) are
applicable to banks and the Housing Finance Companies only. The
schemes are not under the regulatory purview of the bank. The
decision to be a party to the subvention scheme of developers/builders
is purely an individual decision. However, it is stated that in terms of
the Circular dated July 19, 2019, the Housing Finance Companies
shall desist from offering loan products involving such schemes.
Copy of Circular dated July 19, 2019 issued by NHB has been placed
on record as ( Annexure R-5 ). It is also stated that the RBI has
performed its duty to the best of its ability in discharge of its statutory
obligation under various statutes, including those under the Banking
Regulations Act, 1949 and therefore, the writ petition should be
dismissed.
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11. Learned counsel appearing on behalf of the respondent-UOI in
petition being W.P.(C) 372/2023 also filed a written note objecting the
maintainability to entertain these writ petitions. According, to him, a
writ is a public law remedy and is not available in the private law
field, that is, where a non-statutory contract governs the matter. To
substantiate the submissions, he placed reliance on the decisions in the
cases of State of Gujarat & Ors. v. Meghji Pethraj Shah Charitable
7
Trust and K.K. Saksena v. International Commission on Irrigation
8
and Drainage & Ors. . He also placed reliance on a decision in the
9
case of State of Bihar and Ors. v. Jain Plastics and Chemicals Ltd.
to state that the High Court should not grant relief in the case of a
breach of private contract. According to him, the law to address
breach of contract already exists in the form of the Indian Contract
Act, 1872, Arbitration and Conciliation Act, 1996 (hereinafter referred
to as „AC Act, 1996‟) and the Consumer Protection Act, 2019 and
especially the RERA Act. Since sufficient mechanism is provided
ensuring adequate remedies under the prevailing law, writ court
should refrain from exercising its extraordinary jurisdiction.
According to him, in so far as the prayer with respect to a direction to
frame appropriate guidelines or regulations is concerned, the same is
also not possible in view of the law laid down by the Hon‟ble
Supreme Court in the case of V.K. Naswa v. Home Secretary, UOI
10
and Ors. .
12. In the petition being W.P.(C) 1225/2021, learned counsel for
respondent No. 8- TransUnion CIBIL Limited submitted that any
rectification in the data base of credit information or change in the
credit information can only be made in accordance with the provisions
7
(1994) 3 SCC 552
8
(2015) 4 SCC 670
9
(2002) 1 SCC 216
10
(2012) 2 SCC 542
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of Credit Information Companies (Regulations) Act, 2005 (CICRA). It
states that the Credit Information Company is governed by the
provisions of CICRA. It further states that a person aggrieved by the
information disseminated by the credit institution can either approach
the concerned credit institution or can approach the RBI for redressal
of their grievances and further in case the dispute persists, the same
shall be settled by conciliation and arbitration as provided under AC
Act, 1996. Relying on Section 18 of CICRA, it is submitted that the
said respondent is not a necessary party and the petition against it
deserves to be dismissed.
13. The respondent No.6-Punjab National Bank Housing Finance
Limited (hereinafter referred to as „PNBHFL‟), while filing its counter
affidavit states that it is a company incorporated under the Companies
Act, 1956 (hereinafter referred to as „Companies Act‟). The
respondent No. 6 claims to be the largest Housing Finance Company
duly registered with the NHB. It is primarily engaged in the business
of rendering home loans/finance facilities pre-dominantly against
security of immovable property. It states that the petitioner-association
has not filed any list of members of the association. It further states
that the members of the petitioner-association chose the answering
respondent to avail financial assistance on their own volition and they
availed the services of respondent No. 6-PNBHFL without any
compulsion. The respondent-builder offered interest on subvention of
the loan, which was accepted by the members of the petitioner-
association. The members of the petitioner-association in furtherance
to avail the financial assistance have entered into a tripartite
agreement. As per the tripartite agreement, it was the principal
liability of the borrower, that is, the members of the petitioner-
association to honour all the EMIs as well as pre-EMIs of the loan
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advanced. It is stated that respondent No. 6-PNBHFL has funded 144
customers in the project „Supertech Azalia‟ and 50 customers in the
project „Supertech Hues‟. It is stated that there is no element of State
involvement in the matter and the issue is purely private in nature.
The relationship between respondent No. 6-PNBHFL and its
customers rests on respective loan agreements and is completely
contractual in nature. Various terms and conditions of the loan
documents have been relied upon to indicate that the parties are bound
by the terms and conditions of the respective agreements. According
to respondent No. 6-PNBHFL, as per tripartite agreement, the
respondent-builder had assumed the liability of the members of
petitioner-association to the limited extent of payment of pre-EMIs
only for a certain period of months from the date of first disbursement
or till possession/completion of the flat, whichever was earlier. It is
stated that such liability of the builder has in no way, relinquished or
reduced the liability of the members of the petitioner-association
towards respondent No. 6-PNBHFL to repay the borrowed amount. It
is stated that the obligation to repay the loan/EMI including the pre-
EMI is a distinct and independent obligation of the borrower.
14. Respondent No.5–Housing Development Finance Corporation
Limited (hereinafter referred to as „HDFCL‟) also filed its short
affidavit stating therein that respondent No. 5-HDFCL is a registered
Housing Finance Company and is a major provider of finance to
Housing in India. The same is a private corporate body incorporated
under the provisions of the Companies Act. It does not discharge any
functions or duties of public nature and is regulated by the National
Housing Finance Companies Directions, 2010 as amended from time
to time. It is also stated that it is also regulated by the RBI. It is
further stated that since respondent No. 5-HDFCL cannot be said to be
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an instrumentality or agency of Government to fall within the contours
of the expression „State‟ under Article 12 of the Constitution,
therefore, writ petition against respondent No. 5-HDFCL would be a
gross abuse of the process of law. It is the case of respondent No. 5-
HDFCL that the delay in handing over the possession in time bound
manner is a dispute between homebuyers and the respondent-builder,
which is purely contractual in nature. The homebuyers have remedy
against the builder. It is stated that the dispute between the members
of the petitioner-association and the builder is governed by the
builder-buyer agreement and, therefore, the same must be referred to
the sole arbitrator in terms of the provisions of the AC Act, 1996.
Besides that, it is stated that the members of the petitioner-association
have other efficacious statutory remedies available under the RERA
Act and under the Consumer Protection Act, 2019. While relying on
the home loan agreement executed between respondent No. 5-HDFCL
and one of the homebuyers, it is stated that the borrower‟s liability to
repay the loan is an independent contractual obligation. The
homebuyers have executed separate independent contract with the
developer and home loan lenders for independent services and
obligations. It is the specific case of respondent No. 5-HDFCL that it
has not funded homebuyers for respondent No. 3‟s project known as
„Supertech Scarlet‟. This respondent has only acted in a limited
capacity to fund the homebuyers who had taken an informed decision
to invest in the project.
15. The respondent No. 8-Aditya Birla Housing Finance Limited
also filed its counter affidavit reiterating the same submissions. It is
stated that the said respondent is a non-banking financial company
which is covered under Clause (f) of Section 45-I of the RBI Act,
1934. In table-1 of its counter affidavit, the names of borrowers and
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co-borrowers against loan amount sanctioned to them have been
mentioned. It has been pointed out that after the receipt of loan
applications from respective borrowers, the said respondent sanctioned
the home loan facilities against mortgage of the units / flats as
mentioned in table 2 of its counter affidavit. It is stated that separate
home developer agreement dated 29.07.2017 was executed between
respondent-builder and the borrower. The loan agreement is an
independent agreement executed by the said respondent with each of
the borrowers. It is also stated that the tripartite agreement was also
executed between respective borrowers, builder and the respondent
financial institutions, agreeing therein that respective borrowers are
under obligation to repay the loan. However, the builder undertook to
pay only interest to the said respondent on behalf of the borrower for
the loan disbursed to them as per applicable provisions of the MoU for
the subvention period. It is the case of the respondent No. 8 that in
exercise of its right as a secured creditor under the provisions of
Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (hereinafter referred to as
„SARFAESI Act‟), the said respondent had served upon the borrowers
notices under Section 13(2) of the Act of 2002 calling upon them to
discharge their liability.
16. The stand of respondent No. 10-M/s L&T Housing Finance in
its short affidavit is that respondent No. 10-M/s L&T Housing Finance
has merged with L&T Finance Limited w.e.f. 12.04.2021. It is stated
that respondent No. 10 is a non-banking financial company
incorporated under the provisions of Companies Act. Similar
objections have been raised with respect to maintainability of the writ
petition against the said respondent as has been taken by other
respondents-banks/financial institutions. It is the case of this
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respondent that several homebuyers approached the said respondent
for seeking financial assistance for the project of respondent No. 3
being „Azalia‟ and „Hues‟. Besides the execution of loan agreement,
homebuyers have also entered into tripartite agreement which
provided for subvention period. According to this respondent, after
the expiry of subvention period, the homebuyers were liable to make
the payments towards the pre-EMIs and EMIs.
17. The respondent No. 9-ICICI Bank Ltd., also filed its short
counter affidavit stating therein that the same is a private corporate
body incorporated under the provisions of the Companies Act and
does not discharge any functions or duties, which are public in nature.
Similar objections have been raised by this respondent, taking a
specific ground that the petitioners have alternative and efficacious
remedies available under various laws. According to this respondent,
the petitioners cannot be allowed to seek for amendment or rewriting
of the contract (loan agreement) under the garb of enforcement of
fundamental rights. It is stated that this respondent has sought
payment of EMI from the petitioners, names thereof, have been
mentioned in the reply in terms of the contract executed between them
(loan document). In addition, issue with respect to territorial
jurisdiction has also been raised and it is stated that the accounts of
some of the homebuyers have been classified as Non-Performing
Assets (NPAs) and the accounts of some of the homebuyers are
regular.
18. Respondent No. 4-Indiabulls Housing Finance Limited has also
filed its short counter affidavit stating therein that the writ petition is
not maintainable against private entities. According to this respondent,
the obligation to repay the loan/EMI/interest is distinct and
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independent that flows from the respective loan agreement and,
therefore, this court should not entertain the instant writ petitions.
19. Respondent No. 11-IIFL Home Finance Limited has also filed
its counter affidavit, wherein similar objections have been raised with
respect to the maintainability of the instant writ petitions.
20. In the petition being W.P.(C) 14859/2021, the State Bank of
India has also filed its written submissions stating therein that the
concerned branch of the said respondent was located at Ghaziabad,
which does not fall within the territorial jurisdiction of this court. It
emphasized that the tripartite agreement was executed and certain
terms and conditions stipulated therein does not absolve the borrowers
from the repayment of the disbursed amount. Various factual issues
have also been referred in the said written submissions.
21. In the petition being W.P.(C) 8604/2022, the respondent No.-
3/Futureworld Greenhouse Pvt. Ltd. has also raised similar objections,
and it is specifically stated that the disputed question of facts are
involved which cannot be gone into in these proceedings. The parties
are bound by the terms of tripartite agreement and the builder-buyer
agreement and the Circular of RBI are not binding on respondent Nos.
1 & 2 in the said writ petition.
22. Learned counsel appearing on behalf of the respondents while
elaborating their submissions on justifiability to entertain these writ
petitions made extensive submissions which can be summarised as
under: -
(i) The writ petitions are not maintainable in view of the
availability of efficacious alternate remedies to the homebuyers under
the relevant provisions of RERA Act, Consumer Protection Act,
Insolvency and Bankruptcy Code, 2016 and SARFAESI Act, etc.
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(ii) The writ petitions are not maintainable against
respondents/financial institutions since challenge is arising out of
agreement between private parties and the reliefs sought for in these
writ petitions are flowing from individual agreements.
(iii) There is no violation of any directives of RBI or NHB that
would render the present writ petitions maintainable. Even in case of
any violations also, no writ would lie against them.
(iv) This court lacks the territorial jurisdiction to entertain these writ
petitions.
23. Learned nodal counsel appearing on behalf of the respondents/
financial institutions in order to substantiate their submission, have
explained various clauses of „buyer-developer agreement‟, „loan
agreement‟ and „tripartite agreement‟ to indicate that respective
agreements and their clauses would be applicable as per the terms of
the concerned agreement which cannot be gone into in these writ
petitions. They state that in some of the cases, the request for
disbursal of the amounts was made by the borrowers to the concerned
builder. According to them, each case will have different set of facts
and the parties are bound by their individual agreements. According
to them, if an efficacious alternate remedy is available, the writ
jurisdiction ought not to be exercised. They placed reliance on the
decisions in the cases of Upendra Choudhary v. Bulandshahar
11
Development Authority & Ors. , Gulshan Arora & Ors. v. Miss SRS
12 13
Real Estate Ltd. & Ors. , Shelly Lal v. Union of India & Ors .,
14
Assistant Commissioner of State Tax v. Commercial Steel Limited,
15
Sunil Kumar Pandey & Anr. v. Union of India & Ors., Baljit Singh
11
(2021) 11 SCC 449
12
W.P.(C) 1243/2019
13
2021 SCC OnLine SC 222
14
2021 SCC OnLine SC 884
15
2022 SCC OnLine Del 3621
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16
Bhatia & Ors. v. Union of India & Ors., and Radha Krishan
17
Industries v. State of Himachal Pradesh .
24. To substantiate their submissions that the financial institutions
are not amenable to writ jurisdiction as the respondents are not „State‟
in terms of the Article 12 of the Constitution, they rely on the
decisions in the cases of Phoenix ARC Private Limited v. Vishwa
18
Bharati Vidya Mandir & Ors., Federal Bank Limited v. Sagar
19
Thomas and Ors., Rajpur Hydro Power Ltd. v. PTC Indian
20 21
Financial Services Ltd., Sushmi Mukherjee v. NHB & Ors.,
22
Radhakrishna v. Aditya Birla Finance and Mr. Ajay Hasia & Ors.
23
v. Kahlid Mujib & Ors. .
25. With respect to their submission regarding scope of interference
into contractual matters arising out of an agreement between the
builder and homebuyers and the terms and conditions of the private
contracts, they rely on the decisions in the cases of Orix Auto
24
Finance (India) Ltd. v. Jagmander Singh, Orissa State Financial
25
Corpn. v. Narsingh Ch. Nayak & Rajasthan State Industrial
Development and Investment Corporation and another v. Diamond
26
and Gem Development Corporation Ltd. and Ors. .
26. With respect to territorial jurisdiction, they seek to rely on the
decisions in the cases of Sectors Twenty-one Owners Welfare
16
W.P.(C) 6466/2021
17
(2021) 6 SCC 771
18
2022 SCC OnLine SC 44
19
(2003) 10 SCC 733
20
2017 SCC OnLine Del 8277
21
W.P.(C) 13856/2019
22
2020 SCC OnLine Ori 189
23
1981 (1) SCC 722
24
(2006) 2 SCC 598
25
(2003) 10 SCC 261
26
(2013) 5 SCC 470
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27
Association (STOFWA) v. Air Force Naval Housing Board and
28
Bernard D’mello v. Industrial Finance Corpn. Ltd. .
27. Learned counsel specifically points out that the Division Bench
of this court in the case of Sunil Kumar Pandey & Anr. (supra) has
affirmed the view of learned Single Judge not to entertain a petition
under similar circumstances.
28. Learned counsel appearing on behalf of respondents also
clarified that the decision relied upon by the petitioners, rendered by
learned Single Judge of the High Court of Karnataka, Bangalore dated
14.09.2022 in W.P.(C) 17696/2021 and other connected matters has
been stayed by the Division Bench of the said High Court in Writ
Appeal No. 1062/2022 titled as PNB Finance Housing Limited v.
Union of India & Ors. in terms of order dated 02.12.2022.
29. In response to the submissions made by learned counsel
appearing on behalf of the respondents, learned counsel for the
petitioners submitted that the objections so raised by the respondents
are bereft of merit and the writ petitions are maintainable in view of
the various pronouncements of the Hon‟ble Supreme Court and this
court. It is submitted that the writ petitions are maintainable even
against a private sector bank, if there is a dereliction of statutory duty
imposed on the said bank. According to them, the writ jurisdiction
under Article 226 of the Constitution is very wide and is meant to
remedy injustice wherever it is found. It is submitted that the Banks
and financial institutions are bound by the directions/guidelines issued
by the RBI. The RBI is also supposed to monitor whether the
guidelines are being truthfully followed or not. Despite the fact that
though there was no construction on ground, no units were built up
and no possessions were handed over, the concerned financial
27
1996 SCC OnLine Del 42
28
2006 SCC OnLine Del 1176
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institutions continued to disburse the pre-EMIs/EMIs in favour of the
builder, which is in gross violation of the RBI guidelines. According
to learned counsel for the petitioners, the financial institutions may
have remedy against the builder but there is no remedy available to the
petitioners homebuyers against non-adherence of the RBI guidelines
by the respondents. Such a question cannot be agitated before any of
the authorities. According to them, the tripartite loan agreement
clearly records that it would be the liability of the builder to make
repayment of the loan if the buyer defaults in repayment. A reference
is made to Clause 7 at Page No. 162 and Clause 8 at Page No. 168
besides reference being made to various other Clauses. It is also
submitted that the financial institutions have the first charge over the
mortgaged property as per the tripartite loan agreement and the MoU
between the homebuyers and builder specifically mentions that no
EMI would be payable till possession is handed over, which the
bank/financial institutions were aware of. According to them, the RBI
Circulars have been issued under Section 21(A) and 35(A) of the
Banking Regulations Act, 1949 and thus have statutory force and are
binding. The Circulars clearly state that the disbursal of the housing
loan sanctioned to individuals is closely linked to the stage of
construction of the housing projects and upfront disbursal of the
amount to the builder should not be made. Even an Architect is
required to be appointed by the bank to certify the stages of
construction. It is, therefore, submitted that the RBI can levy a penalty
and take other necessary actions against financial institutions, but this
court can also grant relief to the beleaguered home buyers. The
homebuyers are being made to pay loan which was disbursed directly
to the builders in contravention to RBI guidelines and without
receiving any payment. It is pointed out that the respondents-financial
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institutions can recover their amount from the insolvency resolution
process, where they are adequately represented in the committee of
creditors having the first charge over the property. However, the
petitioners cannot be compensated as they have already lost the hope
of having their own shelter and also have to suffer the recovery
proceedings at the instance of financial institutions. They placed
reliance on the decision in the case of Federal Bank Ltd. (supra),
Andi Mukta Sadguru Shree Muktajee Vnds Swami Suvarna Jayanti
29
Mahotsav Smarak Trust & Ors. v. V.R. Rudani & Ors , Dwarka
30
Nath v. Income Tax Officer, Kanpur & Anr. , Air India Statutory
31
Corporation & Anr. v. United Labour Union & Ors. , M/s Sterling
32
Agro Industries Ltd. v. Union of India & Ors., Peerless General
Finance and Investment Co. Ltd. and Anr. v. Reserve Bank of India
33 34
, Central Bank of India v. Ravindra & Ors. , Bikram Chatterji &
35
Ors. v. Union of India & Ors. , Supertech Limited v. Emerald Court
36
Owner Resident Welfare Association & Ors. and the decision of
the Karnataka High Court in the case of Mudit Saxena v. Union of
37
India .
30. Separate submissions have been made by learned counsel for
the petitioner who appears in the petition being W.P.(C) 11063/2022.
It is stated that the RBI and Union of India are admittedly „State‟
therefore, this court can exercise its jurisdiction under Article 226 of
the Constitution against parties discharging public functions, where
elements of public law is involved. According to this petitioner, the
lending obligations of bank are subject to jurisdiction under Article
29
(1989) 2 SCC 691
30
(1965) 3 SCR 563
31
(1997) 9 SCC 337
32
2011 SCC OnLine Del 3162
33
(1992) 2 SCC 343
34
(2002) 1 SCC 367
35
(2018) 17 SCC 691
36
(2021) 10 SCC 1
37
W.P.(C) 17696/2021
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226 of the Constitution and this court has territorial jurisdiction as the
bodies against whom the writ is sought, situates within the territorial
jurisdiction of this court and, if a part of cause of action has arisen
within the jurisdiction of this court, this court would have jurisdiction
to entertain the petition. It is submitted that there is no alternative
remedy available to the petitioners. Learned counsel has placed
38
reliance in the cases of Akshay N. Patel v. RBI , Peerless General
Finance and Investment Co. Ltd. and Anr. (supra), Life Corporation
39
of India v. Escorts Ltd. , Ashok Amrit Raj v. Reserve Bank of
40 41
India , Karnataka State Forest Industries v. Indian Rocks , Mardia
42
Chemicals Ltd. v. Union of India , Pearson Drums and Barrels pvt.
43
ltd. v. RBI , M/s Sterling Agro v. Union of India (Supra) and
44
Adavya Projects Pvt. Ltd. vs Vishal Structural .
31. The written submissions have also been filed by the petitioner
in the petition being W.P.(C) 10686/2022. It is stated that this court,
while considering extensive submissions has passed interim order on
31.01.2022, where all issues were considered. According to him, a
writ would be maintainable against a private party where rights of an
individual are infringed due to non-compliance of statutory duties. It
is stated that the respondent-banks/financial institutions function
within the statutory guidelines which clearly reflects the concern of
the regulatory authorities and unless the said concern translates into
substantive reliefs, the petitioners would not be able to get justice. It
is stated that there is an infringement of the fundamental and legal
rights of private individual on account of non-compliance of the
mandatory guidelines/circulars. A reference has been made to various
38
(2022) 3 SCC 694
39
(1986) 1 SCC 264
40
2012 SCC Online Mad 2752
41
(2009) 1 SCC 150
42
(2004) 4 SCC 311
43
2021 SCC Online Cal 503
44
Arb. P. 78/2021
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
Signature Not Verified
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Circulars issued by the RBI to indicate that the same should have been
followed in their letter and spirit and failure to comply with the said
Circulars result in violation of legal rights of the petitioners, therefore,
this court must entertain these writ petitions. The reliance is placed on
various decisions in the cases of L.I.C. of India & Anr. v. Consumer
45
Education & Research Centre & Ors. , Federal Bank Limited
46
(supra), CBI v. Ramesh Gelli , Kelvin Jute Company Ltd. Workers
Provident Fund v. Krishna Kumar Agarwal, President, Waverly Jute
47
Mills Co. Workers & Ors. , Peerless General Finance and
Investment Co. Ltd. and Anr. (supra), A.V. Venkateswaran v. R.S.
48 49
Wadhwani & Anr. and D.D. Suri v. A.K. Barren & Ors.
32. Learned counsel Shri Ratnesh Sharma, who appeared in the
petition being W.P.(C) 10686/2022 has placed on record various
interim orders passed by this court, wherein the interim order dated
31.01.2022 has been followed. Learned counsel made a specific
reference to order dated 19.07.2022 passed in this writ petition where
learned Single Judge vide order dated 17.08.2022 recorded that prima-
facie case of maintainability has been made out and accordingly, he
directed for issuance of notices.
33. Shri Anshul Gupta, learned counsel who appeared on behalf of
the petitioners in the petition being W.P.(C) 9178/2022 has referred to
various Circulars and indicated that on a particular date, the entire
sanctioned amount was disbursed without following applicable
Circulars. He stated that this is a clear case of violation of statutory
regulations and a fraud has been committed upon the petitioners.
45
(1995) 5 SCC 482
46
(2016) 3 SCC 788
47
(2016) 14 SCC 326
48
(1962) 1 SCR 753
49
(1970) SCC 313
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
Signature Not Verified
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According to him, to do justice, this court must entertain these writ
petitions and not relegate the petitioners to any other alternate forum.
34. Shri Anshul Gupta, learned counsel pointed out that on
31.07.2015, 100% amount was disbursed by the financial institutions
and he explained that the same is in clear violation of RBI Circulars.
35. Shri Ratnesh Sharma, learned counsel who appeared on behalf
of the petitioners in some of the petitions, states that the issue with
respect to maintainability has already been examined by this court on
31.01.2022 and by various other interim orders passed from time to
time, therefore, the said issue need not be examined again.
36. Shri Aditya Bhattacharya, and Shri Abhinav Jaganathan,
learned counsel submitted that in their petitions there are additional
prayers, which require consideration. While placing reliance on the
decision of the Hon'ble Supreme Court in various cases, they submit
that the petitioners cannot be relegated to any other forum.
37. Shri Jagdeep Sharma, learned counsel who appeared in some of
the matters submitted that under the facts of the present case, when a
large scale of fraud has been committed by builders, this court is the
only remedy to seek justice.
38. Shri Shrey Nanda, learned counsel who appeared in the petition
being W.P.(C) 1377/2021 submitted that paragraph Nos. 11, 17 and 20
of the decision in the case of Andi Mukta Sadguru Shree Muktajee
(supra) clearly support their stand.
39. Shri Bharat Bhushan Singh, who appeared in petitions being
W.P.(C) 9101/2022 and W.P.(C) 13929/2022, while placing reliance
on the decision of the Hon‟ble Supreme Court in the case of ABL
International v. Export Credit Guarantee Corporation of India Ltd
50
and Ors. submitted that these writ petitions are maintainable. The
50
(2004) 3 SCC 553
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
Signature Not Verified
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similar stand is taken by Shri Shubham Kaushik, learned counsel who
appeared on behalf of the petitioner in the petition being W.P.(C)
13431/2022 and other learned counsel who appeared in different
petitions.
40. The petitioners in addition to the aforesaid submissions also
specifically addressed this court as to why, this court should entertain
these writ petitions. According to them, all the prayers are capable of
being entertained under Article 226 of the Constitution of India.
Article 226 of the Constitution of India is an intrinsic feature of the
basic structure of the Constitution. The subvention arrangement itself
is prohibited in terms of RBI Circular dated 03.09.2019. Most of the
builders are under CIRP and moratorium is operating against them.
There are more than 200 home buyers who cannot be left remedy less.
The regulatory authorities such as RBI or the Union Government
cannot remain mute spectator. In some cases the tenure of the loan
period and the interest thereon has been unilaterally increased without
the consent of the borrower. This is a case where large scale diversion
of funds has taken place.
41. Reliance is placed on a decision of the Hon'ble Supreme Court
in the case of Godrej Sara Lee Ltd. v. Excise and Taxation Officer-
51
cum-Assessing Authority and Others . It is also pointed out that the
Division Bench of this court in the case of Vineet Gupta v. Reserve
52
Bank Of India & Ors. is also seized with the same issue.
42. I have heard learned counsel appearing on behalf of the parties
and perused the record.
43. If the reliefs sought for in the instant writ petitions, and in few
other connected matters are perused, the same can summed up as
under :-
51
2023 SCC OnLine SC 95
52
W.P.(C) 14508/2022
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
Signature Not Verified
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(i) To direct the respondent-banks/financial institutions not to
charge the pre-EMIs or full EMIs from the petitioners homebuyers.
(ii) To direct the respondent-banks/financial institutions not to
charge all the pre-EMIs or full EMIs till the possession is not
delivered from the respondent builder/real estate developers.
(iii) To direct the respondent-banks/financial institutions to refund
the petitioners' pre-EMIs or full EMIs paid by them.
(iv) To direct the respondent-State to frame clear and strict
guidelines to regulate the transactions pertaining to the subvention
schemes prevalent in the real estate sectors.
(v) To direct respondent-banks/financial institutions not to auction
the property of any real estate builder without the consent of the
homebuyers who have invested their money.
(vi) To direct the respondent to ensure that the petitioners are
provided their respective flats in a time-bound manner.
(vii) To direct the respondents to initiate strict action against
respondent-banks/financial institutions for violating the rules and
regulations laid down by RBI.
(viii) To pass appropriate guidelines to be followed by all
nationalised and private banks/financial institutions including the
respondent-banks/financial institutions for release/disbursal of funds
to Real Estate Companies in cases of loans sanctioned against any
real estate project.
(ix) To direct for appointment of a committee of experts to examine
the grounds raised in the petitions and their representations with
further direction to submit the report in a time-bound manner.
(x) To direct the Union of India to frame guidelines and monitoring
system where the aggrieved people can submit their objections which
can be monitored in a transparent and time-bound manner.
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
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(xi) To direct the respondents to ensure that no recoveries are made
from the petitioners and to stop them from enforcing repayment
obligations in pursuant to facility availed by the petitioners.
(xii) To direct the respondents to restore the CIBIL score to declare
certain clauses of tripartite agreement as null and void and to direct
the respondent to comply with the norms of the subvention schemes,
directing the respondent-banks/financial institutions to withdraw the
complaint under Section 138 of Negotiable Instruments Act, 1881
pending before the concerned Metropolitan Magistrate.
(xiii) To direct the respondents not to present the ECS/security
cheques submitted by the petitioners with the banker of the petitioners
before the actual physical possession of the concerned unit is handed
over to the petitioners.
(xiv) To stay various proceedings already initiated or likely to be
initiated by respondent-banks/financial institutions under the
provisions of Payment and Settlement System Act, 2007, Negotiable
Instruments Act, 1881, SARFAESI Act or any other coercive action.
(xv) To direct the respondents not to declare the account of the
petitioner as NPA.
44. Both sides i.e. the homebuyers and the respondents are relying
on various Clauses of respective agreements. It would be appropriate
to consider the relevant Clauses relied upon by them. One of the
agreements entered between the parties is known as „buyer-developer
agreement'. A copy of „buyer-developer agreement‟ has been placed
on record at Page Nos. 235 to 253 of the convenience compilation.
The same is entered into between Supertech Limited (builder) and Mr.
Dhananjay Bhatt-homebuyer on 29.07.2017 which states that buyer
has requested for allotment of one residential unit in Supertech
„Azalia‟ project with full knowledge and subject to all the laws,
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
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notifications and rules applicable to the said project. Various terms
and conditions were mentioned in the said „buyer-developer
agreement‟. Clause 3 of the terms and conditions of „buyer-developer
agreement‟ dated 29.07.2017 is reproduced as under:-
“3. That in case Buyer(s) wants to avail a loan facility from
any Bank/Financial Institution/Agency to facilitate the
purchase of the said allotted unit, then the following
conditions shall apply in this case:
i. The Buyer(s) shall arrange / avail the loan facility from
Bank/Financial Institution/Agency on its own and the
Developer shall not be responsible or liable for the
sanctioning and for non sanctioning of the same in any
manner whatsoever.
ii. In such case the Buyer(s) shall ensure that the instalment as
stipulated in payment plans are paid on due dates as per
payment schedule notwithstanding any delay in reimbursement
of loan or non-sanction of the loan by the Bank/Financial
Institution/Agency.
iii. If in such case the Installment are not paid on due dates as
stipulated in payment plan above, the Developer shall act per
clause (1) stated above, notwithstanding anything contrary to
this contained in any other agreement executed among the
Developer, the Buyer and the Bank/Financial
Institution/Agency. Yours for Life
iv. In case the Bank/Financial Institution/Agency makes a
lump sum advance payment for the cost of allotted unit, the
Developer shall not be liable to pay interest or any other
charges to the Buyer(s) for receiving the payment before due
dates.
v. In case of non-sanctioning of loan, the Buyer(s) shall ensure
to pay the installments as per the payment plan from its own
sources, failing which the Buyer(s) shall be governed by the
provisions of Clause 1 above”.
45. Clause 48 of the said „buyer-developer agreement‟ reads as
under:-
“48. THAT all or any disputes arising from or out of or
touching upon or in relation to the terms or formation of this
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
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provisional Allotment or its termination, including the
interpretation and validity thereof and the respective rights
and obligations of the Parties shall be settled amicably by
mutual discussion, failing which the same shall be settled
though arbitration. The arbitration proceedings shall be
governed by the Arbitration & Conciliation Act, 1996, or any
statutory amendments, modifications or re-enactment thereof
for the time being in force. A sole arbitrator, appointed by the
Developer, shall hold the arbitration proceedings at New
Delhi. The decision of the Sole Arbitrator including but not
limited to costs of the proceedings/award shall be final and
binding on the Parties, The Allottee(s) hereby confirms that
he/she shall have no objection to such appointment and
proceedings of arbitration".
46. Another agreement which is executed between the parties is
known as „loan agreement‟. The „loan agreement‟ is executed between
the buyer being the first party and the respondent-banks/financial
institutions as the second party. A copy of one of the loan agreements
dated 27.10.2017 executed between Aditya Birla Housing Finance
Limited-respondent No. 8 and Dhananjay Bhatt has been placed on
record at Page Nos. 254 to 286 of the convenience compilation.
Clause 7.1 stipulates therein that if the borrower fails to pay to the
financial institutions any amount when due and payable under the said
agreement, the same would be treated to be an event of default and
under such circumstances, the financial institutions may, by written
notice to the borrower declare all sums outstanding under the loan to
become due and payable forthwith and can take any other action as it
may deem fit for recovery of its dues and enforce the security interest
in relation to the loan upon the occurrence of any one or more of the
events of defaults. Clause 7 of the loan agreement dated 27.10.2017 is
being reproduced as under:-
“7. EVENTS OF DEFAULT: ABHFL may by a written
notice to the Borrower(s), declare all sums outstanding
under the Loan (including the principal, Interest, Default
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
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Interest, charges, expenses) to become due and payable
forthwith, take any other action as it may deem fit for
recovery of its dues and enforce the security interest in
relation to the Loan upon the Occurrence (in the sole
decision of ABHFL) of any one or more of the following
events:
7.1 The Borrower(s) fails to pay to ABHFL any amount
when due and payable under this Agreement;
7.2 The Borrower(s) defaults in performing any of his
obligations under this Agreement or breaches any of the
terms or conditions of this Agreement,
7.3 Any information or detail provided by the Borrower to
ABHFL is or becomes untrue, incorrect or misleading;
7.4 The Borrower(s) opts to resign or retires from the
employment prior to the age of superannuation or is
discharged or removed from service before such date for
any reason whatsoever;
7.5 Any the information provided by the Borrower(s) to
avail the Loan or any of his representations and warranties
herein being found to be or becoming incorrect or untrue;
7.6 Any person other than ABHFL commencing any
civil/criminal proceedings against the Borrower(s);
7.7 The value of the property or any security (including
guarantee/s) created or tendered by the Borrower(s), in the
sole discretion and decision of ABHFL, depreciates entitling
the ABHFL to call for further security and the Borrower(s)
failing to give additional security,
7.8 If the Property is destroyed, sold, disposed of, charged,
encumbered, alienated, attached or restrained in any
manner;
7.9 The Borrower(s) fails to create the security interest as
provided herein;
7.10 ABHFL, for any regulatory or other reasons, is unable
or unwilling to continue the Loan;
7.11 The death, insolvency, failure in business, commission
of an act of bankruptcy, general assignment for the benefit
of creditors, suspension of payment to any creditors or
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
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threat to do so by the Borrower(s), filing of any petition in
bankruptcy or winding-up by or against the Borrower(s); or
7.12 The Borrower(s) fails to furnish any information or
documents or to submit or execute the relevant post
disbursement documents as required by ABHFL”.
47. Clause 10 of the said loan agreement governs the law and
dispute resolution. The same is also reproduced as under:-
"10. GOVERNING LAW AND DISPUTE RESOLUTION
10.1 Laws of India shall govern this Agreement, the security
and other documentation pursuant hereto. The courts in the
city of Mumbai (unless specified otherwise in this
Agreement) will have exclusive jurisdiction over all aspects
governing the interpretation and enforcement of this
Agreement.
10.2 The Parties also agree and acknowledge that in case of
any dispute or difference arising out of or in connection
with this Agreement whether during its subsistence or
thereafter between the Parties including any dispute or
difference relating to the interpretation of the Agreement or
any clause thereof shall be settled by arbitration in
accordance with the provisions of The Arbitration and
Conciliation Act, 1996, or any statutory modifications
thereof and shall be referred to a sole arbitrator, to be
appointed by ABHFL alone.
10.3 The venue for conducting arbitration proceedings shall
be conducted at the place mentioned Schedule - I and the
language of arbitration shall be in English.
10.4 Notwithstanding anything contained in the Agreement,
in the event, the Loan of ABHFL is assigned to any bank
and/or financial institution which have the benefit under the
Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 Act
("Securitization Act") or The Recovery of Debts Due to
Banks and Financial Institutions Act, 1993 (the "DRT Act")
and/or the legal status of ABHFL changes or in the event of
the law being made or amended so as to bring ABHFL
under the Securitization Act or DRT Act (being notified
under the Securitization Act and/or DRT Act), to enable
ABHFL to enforce the security under the Securitization Act
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
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or proceed to recover dues from the Borrower under the
DRT Act, the arbitration provisions contained shall, at the
option of ABHFL shall continue and if arbitration
proceedings are commenced but no Award is made, then at
the option of ABHFL such proceedings shall continue.
Provided that neither a change in the legal status of ABHFL
nor a change in law as referred to in this sub paragraph,
will result in invalidating an existing award passed by an
arbitral tribunal constituted pursuant to the provisions of
the Agreement”.
48. Another agreement that is known as „tripartite agreement‟ is
executed between borrower, builder and financial institutions. A copy
of one of the tripartite agreements executed between Manish Kumar
Garg (borrower), Supertech Limited (respondent No. 3) and Indiabulls
Housing Finance Limited-respondent No. 4 has been placed on record
at page Nos. 287-292 of the convenience compilation.
49. Recital in Clause (A) to (G) are reproduced as under:-
“A. As part of its business activity, the Builder has
developed/in process of development of a project mentioned in
Schedule I (hereinafter referred to as the "Unit No- 2207 / T2
"Supertech Azalia" situated at Sector-68, Golf Course Extn,
Road, Gurgaon 122101.
B. The Borrower have represented that the Builder is of their
choice and that they have satisfied themselves with regard to
integrity, capability for quality construction of the Builder and
the Builder's ability for timely completion and on time delivery
of the Project.
C. The Borrower desire to purchase a property details whereof
are mentioned under Schedule I costing for an amount as
mentioned in Schedule I from the Builder which envisages
allotment to applicants/Borrower of such property (hereinafter
referred to as the "Property", more specifically mentioned in
the Schedule) and payment by the applicants/Borrower of the
cost of construction and purchase of land and common
facilities therefore to the Builder in instalments.
D. The Borrower are short of finance for purchasing the
Property hence in order to make up their finance for the
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
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purchase approached ABHFL for grant of Housing Loan. The
Borrower under the provisions of the housing loan scheme
framed by the ABHFL have applied to ABHFL for a loan for
the purchase of the Property and ABHFL has agreed to grant
a loan for an amount as mentioned under Schedule I to the
Borrower (hereinafter referred to as the "Loan") subject to the
terms and conditions applicable to the Loan for Purchase of
Property. The Borrower have represented that they have not
availed any loan from anywhere.
E. The Builder hereby offers interest subvention for the Loan
extended by ABHFL to the Borrower to purchase the Property
which the Borrower accepts. The Builder liability for payment
of interest on the loan amount disbursed/to be disbursed by
ABHFL will be for initial period as mentioned in Schedule I
from the date of loan disbursement in respect of the above said
Property, (hereinafter referred to as "Subvention Period").
F. ABHFL has considered the said request with a clear
understanding and an irrevocable undertaking by the
Borrower that subsequent to the disbursements as requested
by the Borrower, there would be no repayment default for any
reason whatsoever including but not limited to any
concern/issues by and between the Borrower and the
Builder/Developer.
G. The Borrower have represented, and such representation
being a continuing representation, that Borrower's obligation
to repay the Loan shall be a distinct and independent
obligation more particularly independent of any
issues/concern/ dispute of whatsoever nature between the
Borrower and Builder”.
50. Clause-B of the said 'tripartite agreement' defines that the
borrowers have represented that the builder is of their choice and they
are satisfied with regard to integrity, capability for quality construction
of the builder and the builder‟s ability for timely completion and on
timely delivery of the project.
51. Clause-(f) recites that the financial institutions have considered
the request of the borrowers with a clear and irrevocable
understanding by the borrowers that subsequent to the disbursement,
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
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as requested by the borrowers, there would be no repayment default
for any reason, whatsoever, including but not limited to any
concern/issues by and between the borrowers and the
builder/developer.
52. Clause (5) & (7) stipulates that in respect of the stage of
construction, the borrowers shall be liable to pay the EMIs and that in
the event of default, the financial institutions shall have the right to
recover the amount from the borrowers. Clause (5) & (7) are
reproduced as under: -
“5. That irrespective of the stage of construction of the Project
and irrespective of the date of handing over the possession of
the Property to the Borrower by the Builder, the Borrower
shall be liable to pay to ABHFL regularly each month, the
Pre-EMIS/EMIs as laid down in the Disbursement Letter
signed by and between ABHFL and the Borrower. The
Borrower shall execute an indemnity and such other
documents as may be required by ABHFL in favour of ABHFL
in this regard.
7. Without prejudice to the remedies which ABHFL may have
against the Developer, in the event the Developer fails to
honour its obligation (as stated above), the same shall
constitute an Event of Default under the Loan Documents and
the Borrower shall be liable to pay the entire Outstanding
Amount along with the amount due by way of PEMII”.
53. Another „tripartite agreement‟ dated 17.07.2014 between home
buyer, Supertech Limited and HDFC Bank has also been placed on
record at Page Nos. 293-297. Clause (4) and (9) clearly indicates that
the liability of the borrower is independent of the builder. Clause (4)
and (9) of the tripartite agreement dated 17.07.2014 are being
reproduced as under:-
“4. That irrespective of the stage of construction of the
Project and irrespective of the date of handing over the
possession of the residential apartment to the Borrower by
the Builder the Borrower shall be liable to pay to HDFC
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
Signature Not Verified
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regularly each month the EMIs as laid down in the Loan
Agreement to be signed by and between HDFC and the
Borrower. The Borrower shall execute an indemnity and such
other documents as may be required by HDFC in favour of
HDFC in this regard.
9. Further if the Borrower commits a breach of any of the
terms and conditions of this Tripartite Agreement it shall be
treated as an event of default under the Agreement for Sale /
Allotment cum Agreement for sale or any such agreement or
document signed by and between the Borrower and the
Builder for the sale of the said residential apartment.
That in the event of occurrence of default under the Loan
Agreement which would result in the cancellation of the
Allotment as a consequence thereof and/or for any reason
whatsoever if the allotment is cancelled, any amount payable
to the Borrower on account of such cancellation shall be
directly paid to HDFC. However it is further agreed between
the Parties that such payment made by the Builder directly to
HDEC shall not absolve the Borrower from his liability to
pay the residual amount, if any, from the outstanding under
the Loan Agreement.
That the Borrower agrees that it unconditionally and
irrevocable subrogates its right to receive any amount
payable by the Builder to the Borrower in the event of
cancellation in favour of HDFC and that the act of payment
by the Builder to HDFC under this clause shall amount to a
valid discharge of the Builder of its obligation to pay the
Borrower such cancellation amount.
Further that the parties agree that the Builder shall in no
circumstances forfeit any amount over and above the amount
equivalent to the Borrowers contribution towards the
purchase consideration paid to the Builder. Borrower's
contribution for the purposes of this clause shall mean and
include the difference between the total cost of the residential
apartment and the Loan amount as mentioned above”.
54. Some of the request letters for disbursal of the amount in favour
of financial institutions have also been signed by the borrowers. Some
of them have been placed on record at Page Nos. 398-303. Copy of
Request for Disbursal dated 31.05.2018 is reproduced as under:-
Signature Not Verified
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
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REQUEST FOR DISBURSAL
Dated: 31/05/2018
To,
Aditya Birla Housing Financing Limited
A-4, Aditya Birla Centre, S.K. Ahire Marg,
Worli, Mumbai- 400030
India.
Sub: Request for disbursal of Housing Loan sanctioned in our
favour vide Sanction Letter dated 30/05/18
Ref: Our Application No. 38949 dated 31/05/18
Dear Sir/Madam
This is with reference to my/our facility/ies sanctioned by your
office and in furtherance of the same I/we request you to kindly
disburse the loan amount in following manner:
Favouring 1:
Favouring Aditya Birla Sunlife Insurance Company Ltd.
Bank Name & A/c No.Citibank AC. No. 9421114
Amount________________________1,36,700
Favouring 2:
Favouring. ____________________________________
Bank Name & A/c
No.______________________________________
Amount____________________________________________
Favouring 3:
Favouring.__________________________________________
Bank Name and A/c
No.________________________________________________
Amount_____________________________________________
Favouring 4:
Favouring._________________________________________
Bank Name & A/c
No.________________________________________________
Amount____________________________________________
Signed By:PRATIMA
Signing Date:16.03.2023
10:59:08
Signature Not Verified
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I/We hereby declare that,
1. I/we shall be responsible and liable for the above
disbursement made by ABHFL as requested for above and the
same shall be treated as a facility under all the documents
executed/to be executed with respect thereto.
2. Interest calculation will start from the date of respective
disbursal irrespective of the date of realization of funds in my/our
account.
3. Interest shall be payable by me/us even in case the
disbursement amount instrument is not deposited by me/us in the
bank for realization or disbursement amount is not utilized by
me/us.
_________________ __________________
(Signature of Borrower) (Signature of Co-borrower)
Name:Sahil Thakur Name: Geetika Chugh
______________________ ____________________
(Signature of Co-borrower) (Signature of Co-borrower)
Name:___________ Name:______________
Note : Every cancellation/correction/modification needs counter
signature by borrower and co-borrower. ABHFL will not be
responsible for any change with respect to a person favouring,
other than filed as herein.”
55. Learned counsel appearing on behalf of the petitioners have
specifically pointed out that in one of the 'buyer-developer
agreement' dated 21.07.2017 executed between the Supertech
Limited-builder and Puneet Verma-homebuyer with respect to
Supertech „Azalia‟, the builder agreed to pay penalty to the
allottee @ Rs. 5/- per square feet of super area of the allotted unit
per month for any delay in handing over possession beyond the
given date plus grace period of six months and upto to the offer of
possession or actual physical possession, whichever is earlier.
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According to him, the possession of the allotted unit was to be
given to the allottee by the company by December, 2019 and the
same was only extendable for a further grace period of six months.
Clause (1) & (2) of the said 'buyer developer agreement' are
reproduced as under:-
“1. The possession of the allotted unit shall be given to the
Allottee/s by the Company by DEC, 2019. However, this
period can be extended for a further grace period of 6 months.
The possession clause is subject to the timely payment of all
installments and other dues by the Allottee/s and the Allottee/s
agrees to strictly abide by the same in this regard.
| 2 | The Company hereby agrees to pay penalty to the Allottee's | |
|---|---|---|
| @ Rs. 5.00/- (Five rupees Only) per sq. ft. of super area of the | ||
| allotted unit per month for any delay in handing over | ||
| possession beyond the given date plus grace period of 6 | ||
| months and upto the offer of possession or actual physical | ||
| possession whichever is earlier. However, any delay in project | ||
| execution or its possession caused due to force majeure | ||
| conditions and/or any judicial pronouncement shall be | ||
| excluded from the aforesaid possession period. The | ||
| compensation amount will be calculated after the lapse of the | ||
| grace period and shall be adjusted or paid, if the adjustment is | ||
| not possible because of the complete payment made by the | ||
| Allottee/s till such date, the time of final account settlement | ||
| before possession of the unit. The penalty clause will be | ||
| applicable to only those Allottees who have not booked their | ||
| unit under any special beneficial scheme of the company i.e No | ||
| EMI till offer of possession, Subvention scheme, Assured | ||
| Return etc and who honour their agreed payment schedule and | ||
| make the timely payment of due installments and additional | ||
| charges as per the payment plan given in Allotment Letter”. |
56. While referring Clause 7 of one of the 'tripartite agreement'
dated 01.08.2017 executed between the borrowers, financial
institutions and builder, it has been pointed out that the pre-EMIs
interest payable under the loan document shall be serviced and
borne by builder/developer during the subvention period as
primary obligor as per MoU entered between the builder and
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financial institutions. Clause (7) thereto is being reproduced as
under:-
“7. The Pre-EMI interest (PEMII) payable under the Loan
Documents shall be serviced and borne by the
Builder/Developer during the Subvention Period as
primary obligor as per MOU entered b/w Builder &
PNBHFL. The said PEMII shall be paid by the Developer
of the Loan amount Disbursed as per the MOU”.
57. The reliance is also placed by learned counsel for the
petitioners on Master Circular dated July, 01, 2014 issued by the
RBI to indicate that the same relates to the statutory directives in
exercise of the power conferred under Sections 21 and 35A of the
Banking Regulations Act, 1949. It is indicated that the grant of
loan to individual for purchase/construction of dwelling units per
family is governed by regulatory regime and according to
petitioners, even the financial institutions are required to appoint
an Architect to certify various stages of construction of building to
ensure that the same is as per the sanctioned plan and to monitor
the progress of the construction.
58. Clause 3(c) to (f) have been specifically pressed in service.
The same are reproduced as under: -
“3 (c) However, in cases where the cost of the house/dwelling
units does not exceed Rs.10 lakh, bank may add stamp duty,
registration and other documentation charges to the cost of the
house/dwelling unit for the purpose of calculating LTV ratio.
(d) It has been observed that some banks have introduced
certain innovative Housing Loan Schemes in association with
developers / builders, e.g. upfront disbursal of sanctioned
individual housing loans to the builders without linking the
disbursals to various stages of construction of housing project,
Interest/EMI on the housing loan availed of by the individual
borrower being serviced by the builders during the construction
period/ specified period, etc. This might include signing of
tripartite agreement between the bank, the builder and the
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buyer of the housing unit. These loans products are popularly
known by various names like 80:20, 75:25 schemes.
(e) Such housing loan products are likely to expose the banks as
well as their home loan borrowers to additional risks e.g. in
case of dispute between individual borrowers and
developers/builders, default/ delayed payment of interest/ EMI
by the developer/ builder during the agreed period on behalf of
the borrower, non-completion of the project on time etc.
Further, any delayed payments by developers/ builders on
behalf of individual borrowers to banks may lead to lower
credit rating/ scoring of such borrowers by credit information
companies (CICs) as information about servicing of loans get
passed on to the CICs on a regular basis. In cases, where bank
loans are also disbursed upfront on behalf of their individual
borrowers in a lump-sum to builders/ developers without any
linkage to stages of constructions, banks run disproportionately
higher exposures with concomitant risks of diversion of funds.
(f) Banks are advised that disbursal of housing loans sanctioned
to individuals should be closely linked to the stages of
construction of the housing project / houses and upfront
disbursal should not be made in cases of incomplete / under-
construction/green field housing projects.
59. One of the arguments made by learned counsel for the
petitioners that the issue with respect to the maintainability has
already been decided, deserves consideration. The order dated
31.01.2022 passed by this court, whereby interim relief has been
granted in favour of the homebuyers restraining the respondents
from taking any coercive steps against the petitioners is concerned,
this court in paragraph No.28 of the said order has clearly
observed that the view expressed in the said order was prima-facie
view. It was clarified that the same will not prejudice any of the
parties at the time of hearing of these cases. A specific objection
has been recorded on behalf of the respondent that in order dated
31.01.2022, the said issue was not decided, as has been noted
therein.
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60. Insofar as another order dated 17.08.2022 passed in the case
of Rakesh Verma v. UOI is concerned, in paragraph No. 10 of the
said order, this court has again clarified that prima-facie case of
maintainability has been made out. The other orders which have
been cited by learned counsel for the petitioners to state that the
issue of maintainability of these writ petitions have been decided,
nowhere indicates as if this court has gone into the merits of
submissions and has held that the writ petitions are to be
entertained.
61. The orders which are being relied upon by learned counsel
for the petitioners only record prima-facie view. It is thus held
that the issue with respect to justifiability to maintain the present
writ petitions has not yet been decided by any of the interim orders
or final order passed by this court, therefore, it is necessary to deal
with the said issue.
62. Learned counsel for the petitioner places reliance on the
decision of Hon'ble Supreme Court in the case of Sardar
53
Associate & Ors. v. Punjab and Sind Bank & Ors . to contend
that the RBI is entitled to formulate the policies as per Section 21
of the Banking Regulations Act, 1949 and the policies so framed
are binding on all the banking companies. There is no dispute with
respect to the said proposition. The other set of decisions which
have been relied upon to contend that mandamus can be issued to
any person performing public duty, owing positive obligation to
the effected party, it is also not in dispute that against private
companies in certain circumstances, a writ can be issued as there
may be statute which needs to be complied with by all concerned
including private companies.
53
(2009) 8 SCC 257
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63. The Hon‟ble Supreme Court in the case of Federal Bank
Limited (supra) in paragraph No. 27 has held as under:-
| “27. Such private companies would normally not be | |
|---|---|
| amenable to the writ jurisdiction under Article 226 of | |
| the Constitution. But in certain circumstances a writ | |
| may issue to such private bodies or persons as there | |
| may be statutes which need to be complied with by all | |
| concerned including the private companies. For | |
| example, there are certain legislations like the | |
| Industrial Disputes Act, the Minimum Wages Act, the | |
| Factories Act or for maintaining proper environment, | |
| say the Air (Prevention and Control of Pollution) Act, | |
| 1981 or the Water (Prevention and Control of | |
| Pollution) Act, 1974 etc. or statutes of the like nature | |
| which fasten certain duties and responsibilities | |
| statutorily upon such private bodies which they are | |
| bound to comply with. If they violate such a statutory | |
| provision a writ would certainly be issued for | |
| compliance with those provisions. For instance, if a | |
| private employer dispenses with the service of its | |
| employee in violation of the provisions contained | |
| under the Industrial Disputes Act, in innumerable | |
| cases the High Court interfered and has issued the | |
| writ to the private bodies and the companies in that | |
| regard. But the difficulty in issuing a writ may arise | |
| where there may not be any non-compliance with or | |
| violation of any statutory provision by the private | |
| body. In that event a writ may not be issued at all. | |
| Other remedies, as may be available, may have to be | |
| resorted to”. |
64. The Hon‟ble Supreme Court in the case of Peerless General
Finance and Investment Co. Ltd. and Anr. (supra) has held that the
RBI is “a bankers bank and lender of the last resort”. Its object is to
ensure monetary stability in India and to operate and regulate the
credit system of the country. It, therefore, has to maintain a delicate
balance between the need to preserve and maintain the credit structure
of the country by strengthening the rupee as well as apparent credit
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worthiness of the banks operating in the country and the interest of the
depositors. The RBI occupies place of “pre-eminence” to ensure
monetary discipline and regulate the economy of the credit system of
the country as an expert body. The banks or non-banking institutions
shall have to regulate their operations, not only as per the provisions
of the Act but also the rules and directions or instructions issued by
the RBI in exercise of the powers thereunder. The directions,
therefore, are statutory regulations. They are incorporated and have
become part of the act itself. They must be governed by the same
principles as the statute itself.
65. The Hon‟ble Supreme Court in the case of Supriyo Basu Ors.v.
54
West Bengal Housing board and Ors. has held that if a society
which is not a department of the State and is also not a creature of the
statute but if it is governed by a statute and it is established that the
mandatory provision of a statute has been violated, a writ petition
could be maintainable. Paragraph No.6 of the said decision is
reproduced as under:
“6. According to learned counsel for the respondents
the High Court has rightly held that the writ petition was
not maintainable and that there was not even semblance
of public duty.The rival stands need consideration on the
core issue of maintainability of the writ petition, though
several other issues were raised by learned counsel for
the appellants. It is undisputed that the respondent-
Society is a co-operative society constituted on agreement
between members thereof who had agreed to abide by the
provisions of the West Bengal Co-operative Societies Act,
1983, the Rules framed thereunder or the bye-laws
framed by the Society. The Society is undisputedly not a
department of the State and is also not a creature of a
statute but merely governed by a statute. Only if it is
established that the mandatory provision of a Statute has
been violated, a writ petition could be maintainable.
54
2005 6 SCC 289=MANU/SC/0460/2005
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Before a party can complain of an infringement of his
fundamental right to hold property, he must establish that
he has title to that property and if his title itself is in
dispute and is the subject matter of adjudication in
proceedings legally constituted, he cannot put forward
any claim based on the title until as a result of that
enquiry he is able to establish his title. It is only
thereafter that the question whether the rights in or to
that property have been improperly or illegally infringed
could arise. The dispute as noted by the High Court
essentially related to the claims of two rival groups of
private individuals in relation to common car parking
spaces. Learned Single Judge gave certain directions,
which even touched upon the legality of the sale deeds. It
was not open to be dealt with in a writ petition. As
observed by this Court in U.P. State Co-operative Land
Development Bank Ltd. v. Chandra Bhan Dubey and Ors.
(AIR 1999 SC 753) in relation to the question whether a
writ petition would lie against a Cooperative Society the
question to be considered is what is the nature of the
statutory duty placed on it and the Court is to enforce
such statutory public duty. The question as to entitlement
of the members was to be discussed in the Annual
General Body Meeting. The writ petitioners could not
have questioned the decision of the Society to discuss the
matter in the Annual General Body Meeting. We,
therefore, find no merit in this appeal. The Society is free
to convene a General Body Meeting and to discuss the
rival claims regarding entitlement. We make it clear that
we have not expressed any opinion on that aspect of the
matter. The appeal fails, but without any order as to
costs. ”
66. In the decision of KK Saksena v. International Commission on
55
Irrigations and Drainage , while noting the decision of the Hon‟ble
Supreme court in the case of Federal Bank Limited v. Sagar Thomas
and Ors. (supra) , it was reiterated that if a person or authority
performs public duty, writ petition can lie. Such a private body should
either run substantially on State funding or discharge public
duty/positive obligation of public nature or is under liability to
55
(2015) 4 SCC 670
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discharge any function under any statute to compel it to perform such
a statutory function.
67. In the case of Mathew Varghese v. M. Amrita Kumar and
56
Ors. , while placing reliance on various earlier decisions including
the decision in the case of Ram Kishun and Ors. v. State of Uttar
57
Pradesh and Ors. , it has been held that a right to hold property is a
constitutional right as well as a human right. A person cannot be
deprived of his property except in accordance with the provisions of a
statute. The condition precedent for taking away someone‟s property
by disposing of the secured assets is that the authority must ensure
compliance with the statutory provisions. It has been held that
although recovery of public dues should be made expeditiously,
however, it should be in accordance with the procedure prescribed by
law and that it should not frustrate the Constitutional right.
68. While placing reliance on various decisions, the Hon‟ble
Supreme Court in the case of Maharashtra Chess Associations v.
58
Union of India and Ors. has categorically held that the powers of
the High Court in its writ jurisdiction are not subject to strict legal
principles. Two clear principles emerge with respect to when a High
Court‟s writ jurisdiction may be engaged. Firstly, the decision of the
High Court to entertain or not entertain a particular action under its
writ jurisdiction is fundamentally discretionary. Secondly, limitations
placed on the court‟s decision to exercise or refuse to exercise its writ
jurisdiction are self-imposed. It has also been held that writ
jurisdiction of a High Court cannot be completely excluded by statute.
If a High Court is tasked with being the final recourse to upholding the
rule of law within its territorial jurisdiction, it must necessarily have
56
2014 5 SCC 610
57
2012 11 SCC 511
58
2020 13 SCC 285
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the power to examine any case before it and make a determination of
whether or not its writ jurisdiction is engaged. Judicial review under
Article 226 is an intrinsic feature of the basic structure of the
59
Constitution. ( see: Minerva Mills v. Union of India and L.
60
Chandra Kumar v. Union of India .
69. It is well settled that the remedy under Article 226 of the
Constitution being, in general, discretionary , the High Court may
refuse to grant it where there exists an alternate remedy, which is
equally efficient and adequate. It is equally true that the existence of
alternate remedy does not affect the jurisdiction of the court to issue
writ, but ordinarily that would be a good ground in refusing to
exercise the discretion under Article 226 of the Constitution. Existence
of an alternate remedy is not an absolute bar to the relief under Article
226 of the Constitution. However, the same is a rule of policy,
convenience and discretion rather than a rule of law. The High Courts‟
normally refrain from exercising their extraordinary power, if the
litigant has an alternate efficacious remedy.
70. The jurisdiction of the High Court under Article 226 of the
Constitution is equitable and discretionary. The power under the
Article 226 can be exercised by the High Court to reach injustice
wherever it is found. The powers of the High Court in exercise of its
writ jurisdiction cannot be circumscribed by strict legal principles so
as to hobble the High Court in fulfilling its mandate to uphold the rule
of law. (See: U.P. State Sugar Corporation Ltd. v. Kamal Swaroop
61
Tondon and A Venkataraman v. Ram Chandra Sobvraj
62
Vadhwani )
59
(1980) 3 SCC 625
60
(1997) 3 SCC 261
61
2008 2 SCC 41
62
1962 2 SCR 753
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71. A survey of long line of decisions would make it clear that a
writ would be maintainable against a person or a body which is under
a liability to discharge any function under any statute and is compelled
to perform such a statutory function.
72. In the case in hand, a perusal of definition of financial
institution under Section 45–I of Reserve Bank of India Act, 1934
(hereinafter referred to as „RBI Act, 1934‟) would indicate that any
non-banking institution which carries on its businesses or part of
businesses; and performing activities as mentioned therein, would fall
within the definition of the „financial institutions‟. „Non-banking
financial company‟ is also defined under Section 45-I (f) of the RBI
Act, 1934. The definition of „banking company‟ is also prescribed in
Section 45 A (a) of the RBI Act, 1934. As has been noted the object of
the RBI Act, 1934 is to regulate the issue of bank notes and keep the
reserves with a view to secure monetary stability in India and
generally to operate the currency and credit system of the country to
its advantages. Various kinds of banks and financial institutions are
defined in the RBI Act, 1934 for their regulations. Section 45 J (a) of
the RBI Act, 1934 empowers the RBI to determine policy and issue
directions.
73. Banking Regulations Act, 1949 curbs various mischievous
activities such as prohibiting non-banking companies from accepting
deposits repayable on demand and prohibition of trading with a view
to eliminate non-banking risks. It also ensures minimum capital
standards limiting the payment in dividends, introduction of
comprehensive systems of licensing of banks and their branches, and
provides comprehensive definitions of banking so as to bring within
the scope of the legislation or institutions, which receive deposits,
repayable on demand or otherwise, for lending or investment besides
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providing various other provisions. Section 2 (b) defines „banking‟
and Section 2 (c) defines „banking company‟. Sections 35A, 36,
36AA, 36AD and 47A empowers RBI to give direction, remove
managerial and other persons including various other powers.
74. The SARFAESI Act regulates securitization and reconstructions
of financial assets and enforcement of security interest and provides
for a central database of security interest created for property rights
and for matters connected therewith and incidental thereto. The entire
mechanism for enforcement of security interest and remedies to
borrowers is governed by the provisions of the SARFAESI Act.
75. It is thus seen that the respondent banks-financial institutions in
the present case are fully governed by various statutes as referred
hereinabove. They are required to discharge their function as per the
governing statute. They are also bound by the applicable statute and
are compelled to perform their statutory function. If the principle laid
down in the case of Federal Bank Limited (supra) and various other
decisions, as have been referred to hereinabove, are applied in the
present case, it can be seen that the respondents in the present case are
under liability to discharge their function under the statute and
therefore, it is held that the writ petition against the respondents is
maintainable.
76. Having held so, the question that further arises for consideration
by this court is whether under the facts of the present case the petitions
are “entertainable”? The “maintainability” and “entertainability” of a
writ petition are distinct concepts. The question of “maintainability” or
the „jurisdiction‟ of the concerned court to decide the controversy goes
to the root of the matter.
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77. However, the question of “entertainability” is entirely within the
realm of discretion of the High Courts. As has been noted, writ
remedy being discretionary, despite being petition maintainable, the
same may not be entertained by the High Court for many reasons. It is
also to be noted that where the controversy is purely legal one and it
does not involve the disputed question of fact but only question of
law, it should be decided by the High Court instead of dismissing the
writ petition on the question of an alternate remedy being available.
Violations of all rights may not necessarily be entertained in a writ
jurisdiction.
78. The Hon‟ble Supreme Court in the case of Upendra Choudhary
(supra) while considering the nature of relief prayed therein had noted
that entertaining a petition involving multiple issues relating to various
enactments would be virtually carrying out a day-to-day supervision
of a building project. Paragraph Nos. 2, 6 to 9 are being reproduced as
under:-
“2. The above extract would indicate that the primary
relief which has been sought is : (i) cancellation of all the
agreements; (ii) refund of moneys to purchasers; and in
the alternative (iii) ensuring that the construction is
carried out and that the premises are handed over within a
reasonable period of time. Incidental to the above reliefs,
the petitioner seeks the constitution of a Committee headed
by a former Judge of this Court together with other
persons to monitor and handle the projects of the
developer in the present case. The petitioner also seeks a
forensic audit, an investigation by CBI and by other
authorities such as the Serious Fraud Investigation Office
and Enforcement Directorate.
6. Following the earlier view which has been taken on 7-1-
2021 [Shelly Lal v. Union of India, 2021 SCC OnLine SC
222] , we are of the considered opinion that it would be
inappropriate to entertain a petition under Article 32 for
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more than one reason. There are specific statutory
provisions holding the field, including among them:
(i) The Consumer Protection Act, 1986 (“the 1986
Act”) and its successor legislation;
(ii) The Real Estate (Regulation and Development) Act,
2016 (“RERA”); and
(iii) The Insolvency and Bankruptcy Code, 2016
(“IBC”).
7. Each of these statutory enactments has been made by
Parliament with a specific purpose in view. The 1986 Act
as well as the subsequent legislation contain provisions for
representative consumer complaints. One or more
homebuyers can consequently seek relief to represent a
common grievance for a whole class of purchasers of real
estate. The RERA similarly contains specific provisions
and remedies for dealing with the grievance of purchasers
of real estate. The provisions of the IBC have specifically
taken note of the difficulties which are faced by
homebuyers by providing for remedies within the fold of
the statute.
8. Entertaining a petition of this nature will involve the
Court in virtually carrying out a day to day supervision of
a building project. Appointing a Committee presided over
by a former Judge of this Court would not resolve the
problem because the Court will have nonetheless to
supervise the Committee for the reliefs sought in the
petition under Article 32. Insofar as the remedies of a
criminal investigation are concerned, there is reason for
this Court not to entertain a petition directly under Article
32 in the present set of facts. Adequate remedies are
available in terms of the Code of Criminal Procedure,
1973. The statutory procedures which are enunciated have
to be invoked. Adequate provisions have been made in the
statute to deal with the filing of a complaint and for
investigation in accordance with law. Judicial intervention
is provided at appropriate stages by competent courts in
that regard.
9. In Devendra Dwivedi v. Union of India [Devendra
Dwivedi v. Union of India, (2022) 11 SCC 455] , a three-
Judge Bench of this Court [of which one of us was a
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member] held that, determining “whether recourse to the
jurisdiction under Article 32 be entertained in a particular
case is a matter for the calibrated exercise of judicial
discretion”. It was further held that this remedy cannot be
used as a ruse to flood this Court with petitions that must
be filed before the competent authorities set up pursuant to
the appropriate statutory framework. In view of the
statutory framework, both in terms of civil and criminal
law and procedure, we are of the view that entertaining a
petition under Article 32 would be inappropriate.
79. The Hon‟ble Supreme Court in another case of Gulshan
Arora and Ors. (supra) was considering the petition filed on
behalf of the homebuyers to issue the writ to the bank, not to
precipitate the action under Section 13 (4) of the SARFAESI Act.
The Hon‟ble Supreme Court noted that the grievances of the writ
petitioners and similarly placed persons (homebuyers) of such
project can be assuaged and redressed by RERA in the light of the
decision of the Hon‟ble Supreme Court in the case of Vikram
63
Chatterjee and Ors. v. Union of India .
80. The Division Bench of this court in the case of Sunil
Kumar Pandey (supra) has considered almost the similar issue.
While relying on various decisions including the recent decision of
the Hon‟ble Supreme Court in the case of M/s Radha Krishan
64
Industries v. the State of Himachal Pradesh , it has been held
that the High Court should not interfere when the party can pursue
an alternate remedy such as civil suit, although exception exists. In
paragraph No. 15 of the said order, it has been observed that there
was an arbitration clause in the agreement entered into between
the appellant therein and the respondent. The Division Bench of
this court, while dismissing the LPA has also noted that there may
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2021 SCC OnLine SC 334
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be various innocent homebuyers and there might be various
petitions pending before this court and other High Courts,
however, such litigation arising out of projects involving disputed
question of facts ranging myriad issues, cannot be entertained as
the courts cannot possibly take account of all such real estate
projects and the gamut of issue arising from them. Paragraph Nos.
17 to 20 of the decision in the case of Sunil Kumar Pandey
(supra) are reproduced as under:-
“17. Considering the principles canvassed above, and
the factual matrix of the instant case, the W.P.(C)
11865/2022, was in fact not maintainable, as alternate
remedies exist and have been availed. As noted in Radha
Krishan Industries (Supra), extraordinary
circumstances qualify as exceptions to the rule of
alternate remedy, and necessitate the interference of this
Court. Such exceptions are 1) when the writ petition has
been filed for the enforcement of a fundamental right
protected by Part III of the Constitution; 2) violation of
the principles of natural justice is made out; 3) the order
or proceedings are wholly without jurisdiction; or 4) the
vires of a legislation is challenged. Unfortunately, the
case of the Appellants does not fall under any of these
exceptions either.
18. The Appellants have claimed that the Ld. Single
Judge has failed to note that the civil suit has been
rendered infructuous due to the moratorium imposed
upon Respondent No. 3. However, this anxiety of the
Appellants is ill-founded as the moratorium operates
qua Respondent No. 3 i.e the Builder, and not the
Respondent No. 4 i.e the bank. As the prayers in the suit
are sought qua Respondent No. 4, an equitable alternate
remedy is still available to the Appellants. In any event,
the moratorium will cease to exist once the proceedings
under the Insolvency and Bankruptcy Code culminates.
In light of this, this Court does not find any occasion to
interfere with the Impugned Order.
19. While this Court is dismissing the instant LPA, it
recognises that several real estate projects across the
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country are facing a similar situation. The grievances of
the Appellants are mirrored in other petitions filed by
other innocent homebuyers as well. Such petitions too
are pending before this Court, other High Courts, and
also, the Hon'ble Supreme Court. It is a rather
unfortunate trend that builders often resort to dilatory
tactics, defraud homebuyers by selling units to multiple
individuals, delay the execution of projects, and execute
projects without requisite sanctions. Invariably most of
such builders also undergo insolvency. The greatest loss
is incurred by innocent homebuyers who are not only
forced to embroil themselves in litigation but are also
divested of their hard-earned savings.
20. However, it must be considered that the litigation
arising out of such projects involve disputed questions of
fact, ranging myriad issues. Although this Court
sympathises with the Appellants, and similarly placed
innocent homebuyers, Courts cannot possibly take
account of all such real estate projects, and the gamut of
issues arising from them”.
81. It be also noted that the Coordinate Bench of this court in
the case of Baljit Singh Bhatia & Ors. (supra) has considered a
similar prayer to direct the respondent banks-financial institutions
not to charge any EMI or take coercive action against the
petitioners therein till the CIRP reaches its conclusion. It was also
prayed therein that the respondent-banks/financial institutions be
directed not to charge all pre-EMIs or full-EMIs till the possession
is delivered to the petitioners from respondent-builder. It is seen
that there were various other similar prayers as have been made in
the present set of cases. This court while dealing with the
submissions of respective parties in detail, has held that the
payment obligation under the loan agreement were not honoured
by the borrower and since that was the main controversy,
therefore, no exception can be carved out to exercise jurisdiction
under Article 226 of the Constitution, as the subject matter is
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governed purely by the terms of the contract. Paragraph No.13 of
the said decision is being reproduced as under: -
“13. The instant petition is ex-facie not maintainable
for the following reasons: 13.1. The real cause of
action is perhaps the failure on part of GPRPL to keep
its commitment of completion of construction. The fact
that the payment obligations under the loan agreement
have not been honoured by the Petitioners is not in
controversy. However, merely because the construction
of the property is not complete, cannot absolve the
Petitioners of such liability which has been undertaken
independent of the same, as per the terms of the loan
agreement.
13.2. Unfortunately for the Petitioners, the dispute
raised in the instant petition is purely contractual in
nature, and the Petitioners’ desire to wriggle out of
their contractual repayment obligations under the
tripartite and loan agreements, cannot lend any colour
of maintainability to the instant petition.
13.3. There is no violation or infringement of any right,
much less a fundamental right, which is demonstrable
from the facts of the petition.
13.4. No exceptional or extraordinary circumstance is
demonstrated for this Court to exercise jurisdiction
under Article 226 of the Constitution of India, in
relation to a subject matter which is governed purely
by the terms of the contract.
13.5. Petitioners have also not made out any case for
contravention of RBI/ NHB circular(s)/guideline(s) to
seek prayers (iv) and (vii) which are directed towards
Respondents No. 1-UOI and No. 2-RBI. The bald
assertion of contravention of RBI circulars for making
upfront disbursal of loan amount is found to be
factually incorrect, as discussed above. No
demonstrable irregularity has been shown in the grant
of sanction of loan by TCHFL. The claims made in the
petition do not indicate any cause of action qua the
Ministry of Housing and Urban Affairs, UOI. It is
therefore evident that UOI and RBI have been
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impleaded only to overcome the bar of
maintainability”.
82. In the case of Baljit Singh Bhatia (supra) , a specific
argument of the homebuyers has been noted in paragraph No. 8
that the disbursal of the loan amount to financial institutions was
in flagrant violation of statutory circulars issued by RBI or by
NHB.
83. The Hon‟ble Supreme Court in the case of Phoenix ARC
Private Limited (supra) has also held that writ petition against the
private financial institution-ARC (Asset Reconstruction Company)
against the proposed action under Section 13(4) of the SARFAESI
Act, would not be maintainable.
84. A perusal of various clauses of respective agreements, be it
„buyer-developer agreement‟, „loan agreement‟ or „tripartite
agreement‟, the rights claimed by the petitioners are eventually
flowing from the respective agreements only. It is also to be noted
that the violation of RBI Circulars has been alleged by the
petitioners homebuyers, which is disputed by the respondents.
85. In the instant case, not only the rights of the petitioners are
flowing from private contract but the complex and disputed
question of facts are involved and the parties are not remediless.
Alternative forums are already in place. Any interference by the
writ court under the facts of the present case would amount to
usurpation of powers vested with the respective forums. Such an
exercise is not permissible unless extraordinary circumstances
exist which are apparently non-existent in the instant cases.
86. The cases in hand clearly indicate that the homebuyers are
claiming their rights on the basis of terms of the contract or on the
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basis of RBI Circulars. Their rights are mainly governed by the
terms of the contract which they have entered into and to enforce
the terms of the contract, no writ or order can be issued under
Article 226 of the Constitution so as to compel the authorities to
remedy a breach of contract pure and simple. Reference can be
made to the decision of the Hon‟ble Supreme Court in the case of
Bareilly Development Authority (supra).
87. The pleadings between the parties would further go on to
indicate that the respondents-financial institutions are alleging
breach on the part of the petitioners and are claiming full
adherence of the RBI Circular. In any case, since the rights of the
homebuyers are flowing from the terms of the contract and if,
there is any breach of RBI Circulars at the instance of banks/
financial institutions, the same by itself cannot entitle the
homebuyers for the relief, which they have claimed in the instant
writ petitions. In any case, the breach of RBI Circular is again a
question of fact that can still be gone into before the appropriate
court.
88. The cases in hand are purely contractual in nature. As has
been noted, the „builder-buyer agreement‟ also categorically
provides for an arbitration clause, whereby, any dispute pertaining
to the said agreement was to be referred to arbitration. In some of
the cases, the homebuyers have already approached the alternate
forums and their cases are pending. In some cases where the banks
have initiated insolvency proceedings against them, the
homebuyers can raise their claim before the concerned Tribunal.
There are various statutes such as RERA Act, Consumer
Protection Act, Insolvency and Bankruptcy Code, 2016,
SARFAESI Act etc., where the petitioners can raise their
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grievances. It would not be advisable to entertain a writ petition
under Article 226 of the Constitution under the facts of the present
cases.
89. The Division Bench in the case of Vineet Gupta (supra) is
seized with the matter where the order passed by the DRT is under
challenge. No final opinion has been expressed in the same.
However, the Division Bench in the case of Sunil Kumar Pandey
(supra) has clearly declined to entertain the writ appeal involving
almost similar issues. The nature of the relief, as has been quoted
in the preceding paragraphs, which are multiple in nature, are
apparently not capable of being decided in summary jurisdiction
of the writ court.
90. So far as the decision of the learned Single Judge of the
High Court of Karnataka in the case of Mudit Saxena (supra) is
concerned, firstly the same is not binding on this court and
secondly, it has already been stayed by the Division Bench of the
Karnataka High Court and therefore, it would not be appropriate to
take any view on the basis of the said decision. Nevertheless, this
court has considered the submissions made by the respective
parties and has taken a view not to entertain these petitions in
exercise of power under Article 226 of the Constitution of India.
91. In view of the aforesaid, this court, in view of the
availability of alternative remedies, does not find it appropriate to
entertain these writ petitions and, therefore, the same are
dismissed alongwith the pending application(s), if any.
92. This court has not expressed any opinion on the merits of
the case and has consciously not given any finding with respect to
the violations/non-violations on the part of the respective parties,
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as the same would prejudice their rights before different forum
where multiple proceedings are going on. However, since the
interests of large number of homebuyers are involved in these
cases, if the homebuyers‟ avail alternative remedies, as may be
available to them, the same may be considered and decided
expeditiously in accordance with law.
(PURUSHAINDRA KUMAR KAURAV)
JUDGE
MARCH 14, 2023
p’ma/Priya/MJ
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