Full Judgment Text
Via video conferencing
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Date of Decision:- 31.01.2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10223/2021 & CM APPL. 31512/2021 (stay)
ASHISH TIWARI ..... Petitioner
Through Mr.Ashish Chauhan, Adv.
versus
UNION BANK OF INDIA ..... Respondent
Through Mr.V.Giri, Sr. Adv. with Mr.Ramesh
Babu, Ms.Manisha Singh, Ms.Nisha
Sharma, Ms.Sanya Panjwani,
Ms.Tanya Chowdhary & Ms.Jagriti
Bharti, Advs. for RBI
Mr.O.P.Gaggar, Adv. for R-1
+ W.P.(C) 11168/2021 & CM APPL. 34378/2021 (stay)
ARUN KUMAR SHARMA ..... Petitioner
Through Mr.Anshul Gupta, Mr.Nihaar Reddy,
Mr.Rohan Aggarwal & Ms.Kirti Dua,
Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr.V.Giri, Sr. Adv. with Mr.Ramesh
Babu, Ms.Manisha Singh, Ms.Nisha
Sharma, Ms.Sanya Panjwani,
Ms.Tanya Chowdhary & Ms.Jagriti
Bharti, Advs. for RBI
Mr.Jitesh Vikram Srivastava &
Mr.Prajesh Vikram Srivastava, Mr.
Satish Kumar, Mr.Gautam Singhal,
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 1 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
Mr.Rajat Chaudhary & Ms.Divya,
Advs. for R-2
Mr.Gautam Singhal, Adv. for R-3
Mr.Manu Beri & Mr.Prateek
Kasliwal, Advs. for R-6
+ W.P.(C) 11184/2021 & CM APPL. 34431/2021 (stay)
UJJWAL SEN ..... Petitioner
Through Mr.Anshul Gupta, Mr.Nihaar Reddy,
Mr.Rohan Aggarwal & Ms.Kirti Dua,
Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Jitesh Vikram Srivastava &
Mr.Prajesh Vikram Srivastava, Adv.
for R-1
Mr.O.P.Gaggar, Adv. for R-5
Mr.Manu Beri & Mr.Prateek
Kasliwal, Advs. for R-4
+ W.P.(C) 11266/2021 & CM APPL. 34681/2021 (stay)
RAJUL GOSWAMI ..... Petitioner
Through Mr.Anshul Gupta, Mr.Nihaar Reddy,
Mr.Rohan Aggarwal & Ms.Kirti Dua,
Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr.Anil Soni, CGSC
Mr.Ajay Kohli, Mr.S.S. Sobti &
Ms.Saloni Jain, Advs. for R-3.
Mr.Manu Beri & Mr.Prateek
Kasliwal, Advs. for R-5
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 2 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
+ W.P.(C) 11995/2021 & CM APPL. 37062/2021 (stay)
SUNNY GROVER ..... Petitioner
Through Mr.Anshul Gupta, Mr.Nihaar Reddy,
Mr.Rohan Aggarwal & Ms.Kirti Dua,
Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Anil Dabas, Adv.
Mr.Rajeeve Mehra & Ms.Jagriti
Ahuja, Advs. for HDFC Bank
Mr.Sanjeev Singh, Ms.Kajal Bhatia &
Mr.Abhinav Deshwal, Advs. for R-3.
Mr.Manu Beri & Mr.Prateek
Kasliwal, Advs. for R-5
+ W.P.(C) 11998/2021 & CM APPL. 37066/2021 (stay)
SUSHEEL PATWAL ..... Petitioner
Through Mr.Anshul Gupta, Mr.Nihaar Reddy,
Mr.Rohan Aggarwal & Ms.Kirti Dua,
Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr.Manu Beri & Mr.Prateek
Kasliwal, Advs. for R-4
+ W.P.(C) 12222/2021 & CM APPL. 38270/2021 (stay)
SANJEEV KUMAR ..... Petitioner
Through Mr.Anshul Gupta, Mr.Nihaar Reddy,
Mr.Rohan Aggarwal & Ms.Kirti Dua,
Advs.
versus
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 3 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
UNION OF INDIA & ORS. ..... Respondents
Through Mr.V.Giri, Sr. Adv. with Mr.Ramesh
Babu, Ms.Manisha Singh, Ms.Nisha
Sharma, Ms.Sanya Panjwani,
Ms.Tanya Chowdhary & Ms.Jagriti
Bharti, Advs. for RBI
Ms.Nidhi Raman, CGSC, with
Mr.Zubin Singh, Adv.
Mr.Rajeeve Mehra & Ms.Jagriti
Ahuja, Advs. for HDFC Bank
Mr. Sumeet Sharma, Mr. Divyanshu
Gupta & Mr. Sarthak Garg, Advs. for
R-5
Mr. Sanjay Bhatt, Ms. Niharika
Sharma & Ms. Ruchi Goyal, Advs.
for R-6
+ W.P.(C) 12250/2021 & CM APPL. 38317/2021 (stay)
JAYANTA KUMAR MISHRA ..... Petitioner
Through Mr.Anshul Gupta, Mr.Nihaar Reddy,
Mr.Rohan Aggarwal & Ms.Kirti Dua,
Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr.Harish Vaidyanathan Shankar,
CGSC with Mr.Karan Chibber &
Ms.S Bushra, Advs.
Mr. Deepak Jain, SC with
Mr.Tanpreet Gulati, Advs. for Canara
Bank
+ W.P.(C) 12368/2021 & CM APPL. 38897/2021 (stay)
RAJNEESH AGARWAL AND ORS ..... Petitioners
Through Mr. Aditya Parolia, Mr. Piyush Singh,
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 4 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
Mr. Akshay Srivastava, Ms. Aditi
Sinha & Mr. Sourav Sharma, Advs
versus
UNION OF INDIA AND ORS ..... Respondents
Through Ms. Sunieta Ojha, Adv. for UOI
Mr.Sanjeev Sagar, SC with Ms.Nazia
Parveen, Adv. for SBI
Mr.Sanjeev Singh, Mr.Prashant
Tripathi & Ms.Ridhi Pahuja, Advs.
for R-4.
Mr. Kuber Dewan, Ms. Neeharika
Aggarwal & Ms. Trisha
Raychaudhuri, Advs. for R-6.
Mr. Hemant Gupta, Adv. for R-7.
Mr.Manu Beri & Mr.Prateek
Kasliwal, Advs. for R-9
+ W.P.(C) 12461/2021 & CM APPL. 39219/2021 (stay)
SATVINDER KUMAR SACHDEVA ..... Petitioner
Through Mr.K.K. Tyagi & Mr.Iftekhar Ahmad,
Advs.
versus
UNION OF INDIA ..... Respondent
Through Mr.V.Giri, Sr. Adv. with Mr.Ramesh
Babu, Ms.Manisha Singh, Ms.Nisha
Sharma, Ms.Sanya Panjwani,
Ms.Tanya Chowdhary & Ms.Jagriti
Bharti, Advs. for RBI
Mr.Arvind Jadon & Mr.Sachin
Shukla, Advs. for R-4.
+ W.P.(C) 13159/2021 & CM APPL. 41524/2021 (stay)
ASHISH TIWARI ..... Petitioner
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 5 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
Through
versus
ICICI BANK LTD ..... Respondent
Through
+ W.P.(C) 13232/2021 & CM APPL. 41767/2021 (stay)
PUNEET NAWAL SINGH AND ANR. ..... Petitioners
Through Mr. Aditya Parolia, Mr. Piyush Singh,
Mr. Akshay Srivastava, Ms. Aditi
Sinha & Mr. Sourav Sharma, Advs
versus
UNION OF INDIA AND ORS. ..... Respondents
Through Mr.Jitesh Vikram Srivastava &
Mr.Prajesh Vikram Srivastava, Advs.
for R-1.
Mr.Aditya Sharma & Mr.Siddharth
Nigotia, Advs. for R-3
Mr.Manu Beri & Mr.Prateek
Kasliwal, Advs. for R-5
+ W.P.(C) 13257/2021 & CM APPL. 41850/2021 (stay)
ARINDAM GHOSAL ..... Petitioner
Through Mr.Anshul Gupta, Mr.Nihaar Reddy,
Mr.Rohan Aggarwal & Ms.Kirti Dua,
Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr.Sanjeev Singh, Ms.Kajal Bhatia &
Mr.Abhinav Deshwal, Advs. for R-3.
Mr.Manu Beri & Mr.Prateek
Kasliwal, Advs. for R-4.
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 6 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
Mr. Abhinav Goyal, Mr. Kushank
Sindhu, Ms.Gazal Ghai, Advs. for R-
5
+ W.P.(C) 13335/2021 & CM APPL. 42009/2021 (stay)
MR. DR. ASHOK KUMAR OMAR & ANR. ..... Petitioners
Through Mr. Shashwat Parihar, Mr.Shashwat
Anand, Ms.Adya Singh & Ms.Dhruva
Vig, Advs.
versus
RESERVE BANK OF INDIA & ORS. ..... Respondents
Through Mr.V.Giri, Sr. Adv. with Mr.Ramesh
Babu, Ms.Manisha Singh, Ms.Nisha
Sharma, Ms.Sanya Panjwani,
Ms.Tanya Chowdhary & Ms.Jagriti
Bharti, Advs.
+ W.P.(C) 14359/2021 & CM APPL. 45253/2021 (stay)
VINAY KUMAR TIWARI & ORS. ..... Petitioners
Through Mr..Ashish Chauhan, Adv.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Dev P. Bhardwaj, CGSC with
Mr. Surender Kumar, Adv. for UOI
Mr. R K Sinha, Adv. for SBI
+ W.P.(C) 14828/2021 & CM.APPL.5398/2022 (directions)
SUVROJEET CHAKRABORTY ..... Petitioner
Through Ms. Kanika Singhal and Mr. Siddhant
Bajaj, Advs
versus
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 7 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
UNION OF INDIA & ORS. ..... Respondents
Through Mr.V.Giri, Sr. Adv. with Mr.Ramesh
Babu, Ms.Manisha Singh, Ms.Nisha
Sharma, Ms.Sanya Panjwani,
Ms.Tanya Chowdhary & Ms.Jagriti
Bharti, Advs. for RBI
Mr. Shashank Bajpai, Mr. Supragya
Ram Mishra & Mr. Shubhankar
Singh, Advs. for R-1
Ms. Shobhana Takiar, Adv. for R-3
Ms.Nishtha Khurana, Mr.Ishan
Dewan, Mr.Lokesh Malik, Mr.Anant
Singh Negi, Mr.Imran Khera, Advs.
for R-4
Mr.Sunil Dalal, Sr. Adv. alongwith
Ms.Ruchi Gour Narula, Mr.Devashish
Bhadauria, Mr.Mohit Bhadu, Advs,
for R-5
+ W.P.(C) 14859/2021 & CM APPL. 46893/2021 (stay)
VIVEK KUMAR DANDOTIA ..... Petitioner
Through Mr.Anshul Gupta, Mr.Nihaar Reddy,
Mr.Rohan Aggarwal & Ms.Kirti Dua,
Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr.V.Giri, Sr. Adv. with Mr.Ramesh
Babu, Ms.Manisha Singh, Ms.Nisha
Sharma, Ms.Sanya Panjwani,
Ms.Tanya Chowdhary & Ms.Jagriti
Bharti, Advs. for RBI
Mr. Prakash Kumar, Adv. for UOI
Mr.Siddharth Sangal, Adv. for R-3
Mr.Manu Beri & Mr.Prateek
Kasliwal, Advs. for R-4
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 8 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
+ W.P.(C) 1251/2022 & CM APPL. 3657/2022 (interim relief)
GAURAV GULATI & ANR. ..... Petitioners
Through Mr.Sidhant Kumar & Ms.Manyaa
Chandok, Advs.
versus
RESERVE BANK OF INDIA & ORS. ..... Respondents
Through Mr.V.Giri, Sr. Adv. with Mr.Ramesh
Babu, Ms.Manisha Singh, Ms.Nisha
Sharma, Ms.Sanya Panjwani,
Ms.Tanya Chowdhary & Ms.Jagriti
Bharti, Advs. for RBI
Mr. Sunil Dalal, Sr. Adv. with Mr.
Ankit Banati, Mr. Shravan Niranjan,
Advs. For India Bulls Housing
Finance
+ W.P.(C) 6466/2021 & CM APPL. 20342/2021(stay)
BALJIT SINGH BHATIA & ORS. ..... Petitioners
Through Mr. Aditya Parolia, Mr. Piyush Singh,
Mr. Akshay Srivastava, Ms. Aditi
Sinha & Mr. Sourav Sharma,
Ms.Kanika Singhal and Mr. Siddhant
Bajaj, Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Rahul Sharma with Mr. C. K.
Bhatt, Advs. for UOI
Mr. Manu Beri and Mr. Prateek
Kasilwal, Advs. for R-5
+ W.P.(C) 9491/2020 & CM APPL. 30535/2020 (stay)
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 9 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
SUPERTECH URBAN5 HOME BUYERS ASSOCIATION (SUHA)
FOUNDATION ..... Petitioner
Through Ms.Nina R Nariman, Mr. Aditya
Parolia, Mr. Piyush Singh, Mr.
Akshay Srivastava, Ms. Aditi Sinha &
Mr. Sourav Sharma, Advs
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Rahul Sharma, CGSC with Mr.
C. K. Bhatt & Mr.Vikrant N Goyal,
Advs. for UOI
Mr. Sunil Dalal, Sr. Adv. alongwith
Mr. Ankit Banati, & Mr. Shravan
Niranjan, Advs. for India Bulls
Housing Finance Ltd.
Mr.Rahul Malhotra and Ms.Himanshi
Madan, Advs.
Mr. Puneet Bajaj, Adv.
Ms. Ratna Dwivedi Dhingra, Adv
Mr.Nishant Awana, Adv. for R-11
Mr Vikrant N Goyal, Adv. for UOI
Mr. Hemant Gupta, Adv. for R-7
Mr. Sanjeev Singh, Mr. Prashant
Tripathi and Ms. Ridhi Pahuja, Advs.
for R-8
Mr. Kuber Dewan, Ms. Neeharika
Aggarwal and Ms. Trisha
Raychaudhuri Advs. for R-6
Mr. Venket Rao, Remya Ronald and
Sarthak Shukla, Adv. for PNB
Housing Finance Ltd.
Mr. Sunil Dalal, Sr. Adv, Mr. Ankit
Banati and Mr. Shravan Niranjan,
Advs. for R-4
Nishant Awana, Adv. for R-5
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 10 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
+ W.P.(C) 9493/2020 & CM APPL. 30538/2020 (stay)
GAUTAM SETHI & ORS. ..... Petitioners
Through Mr. Aditya Parolia, Mr. Piyush Singh,
Mr. Akshay Srivastava, Ms. Aditi
Sinha & Mr. Sourav Sharma, Advs
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Ajay Digpaul CGSC, Mr. Sahaj
Garg GP and Mr. Kamal R Digpaul,
Advs.
Mr. Sunil Dalal, Sr. Adv. alongwith
Mr. Ankit Banati, & Mr. Shravan
Niranjan, Advs. for India Bulls
Housing Finance Ltd.
Mr.Rahul Malhotra and Ms.Himanshi
Madan, Advs.
Mr. Puneet Bajaj, Adv.
Ms. Ratna Dwivedi Dhingra, Adv.
Mr.Nishant Awana, Adv. for R-7
Mr. Kuber Dewan, Ms. Neeharika
Aggarwal and Ms. Trisha
Raychaudhuri Advs. for R-10
Mr. Venket Rao, Remya Ronald and
Sarthak Shukla, Adv. for PNB
Housing Finance Ltd.
Mr. Sunil Dalal, Sr. Adv, Mr. Ankit
Banati and Mr. Shravan Niranjan,
Advs. for R-5
Mr. Nishant Awana, Adv. for R-5
+ W.P.(C) 5542/2021 & CM APPL. 17172/2021 (stay)
VIJAY KUMAR CHAUDHARY & ORS. ..... Petitioners
Through Mr. Arun Khatri and Mr.Akshay,
Advs.
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 11 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr Vikrant N Goyal, Adv. for UOI
Mr. Manu Beri and Mr. Prateek
Kasilwal, Advs. for R-6
Ms.Nishtha Khurana, Mr.Ishan
Dewan, Mr.Lokesh Malik, Mr.Anant
Singh Negi & Mr.Imraan Khera,
Advs. for R-3,
Ms. Shobhana Takiar, Adv. for NHB
+ W.P.(C) 5870/2021 & CM APPL. 18431/2021 (stay)
SHREESH SHUKLA AND ORS. ..... Petitioners
Through Mr. Aditya Parolia, Mr. Piyush Singh,
Mr. Akshay Srivastava, Ms. Aditi
Sinha & Mr. Sourav Sharma, Advs
versus
UNION OF INDIA AND ORS ..... Respondents
Through Mr. Vijay Joshi and Mr. Himanshu
Pathak, Advs. for UOI
Mr.Ajay Kohli, Mr.S.S. Sobti &
Ms.Saloni Jain, Advs. for R-6
Mr. Sunil Dalal, Sr. Adv. alongwith
Mr. Ankit Banati, & Mr. Shravan
Niranjan, Advs. for India Bulls
Housing Finance Ltd.
Mr. Manu Beri and Mr. Prateek
Kasilwal, Advs. for R-7
Ms. Ratna Dwivedi Dhingra, Adv.
Mr. Sunil Dalal, Sr. Adv, Mr. Ankit
Banati and Mr. Shravan Niranjan,
Advs. for R-5
Mr. Ajay Kohli, Mr. S. S. Sobti and
Ms. Saloni Jain, Advs. for R-6
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 12 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
+ W.P.(C) 5879/2021 & CM APPL. 18489/2021 (stay)
KAUSHIK BOSE AND ORS ..... Petitioner
Through Mr. Aditya Parolia, Mr. Piyush Singh,
Mr. Akshay Srivastava, Ms. Aditi
Sinha & Mr. Sourav Sharma, Advs
versus
UNION OF INDIA AND ORS ..... Respondents
Through Mr.V.Giri, Sr. Adv. with Mr.Ramesh
Babu, Ms.Manisha Singh, Ms.Nisha
Sharma, Ms.Sanya Panjwani,
Ms.Tanya Chowdhary & Ms.Jagriti
Bharti, Advs. for RBI
Mr.Rahul Malhotra and Ms.Himanshi
Madan, Advs.
Ms.Heena Kochar Adv. for
Mr.Gaurang Kanth, CGSC for UOI
Mr. Sunil Dalal, Sr. Adv. alongwith
Mr. Ankit Banati, & Mr. Shravan
Niranjan, Advs. for India Bulls
Housing Finance Ltd.
Ms. Ratna Dwivedi Dhingra, Adv
Mr. Ajay Kohli, Mr.S.S. Sobti &
Ms.Saloni Jain, Advs. for R-7
Mr. Manu Beri and Mr. Prateek
Kasilwal, Advs. for R-12
Mr. Jatin Puniyani, Adv. for R-1/UOI
Mr. Sanjeev Singh, Mr. Prashant
Tripathi and Ms. Ridhi Pahuja, Advs.
for R-9
Mr. Kuber Dewan, Ms. Neeharika
Aggarwal and Ms. Trisha
Raychaudhuri Advs. for R-8
Mr. Sunil Dalal, Sr. Adv, Mr. Ankit
Banati and Mr. Shravan Niranjan,
Advs. for R-5
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 13 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
Mr. Ajay Kohli, Mr. S. S. Sobti and
Ms. Saloni Jain, Advs. for R-7
+ W.P.(C) 6165/2021 & CM APPL. 19547/2021 (stay)
MOHD FAZAL HAMDANI ..... Petitioner
Through Mr. Aditya Parolia, Mr. Piyush Singh,
Mr. Akshay Srivastava, Ms. Aditi
Sinha & Mr. Sourav Sharma, Advs
versus
UNION OF INDIA AND ORS ..... Respondents
Through Mr. Manu Beri and Mr. Prateek
Kasilwal, Advs. for R-5
Ms Nishtha Khurana, Mr.Ishan
Dewan, Mr.Lokesh Malik, Mr.Anant
Singh Negi & Mr.Imraan Khera,
Advs. for R-3
+ W.P.(C) 7749/2021 & CM APPL. 24201/2021(stay)
ANIRBAN DUTTA AND ORS ..... Petitioner
Through Mr. Aditya Parolia, Mr. Piyush Singh,
Mr. Akshay Srivastava, Ms. Aditi
Sinha & Mr. Sourav Sharma, Advs
versus
UNION OF INDIA AND ORS ..... Respondents
Through
Ms.Heena Kochar Advocate for
Mr.Gaurang Kanth, CGSC for UOI
Mr. Manu Beri and Mr. Prateek
Kasilwal, Advs. for R-5
Mr.Ajay Kohli, Mr.S.S. Sobti &
Ms.Saloni Jain, Advs. for R-4
Mr. Ajay Kohli, Mr. S. S. Sobti and
Ms. Saloni Jain, Advs. for R-4
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 14 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
+ W.P.(C) 7766/2021 & CM APPL. 24244/2021(stay)
PRADEEP BHARTIA AND ANR ..... Petitioners
Through Mr. Aditya Parolia, Mr. Piyush Singh,
Mr. Akshay Srivastava, Ms. Aditi
Sinha & Mr. Sourav Sharma, Advs
versus
UNION OF INDIA AND ORS ..... Respondents
Through Mr. Arman Ali, SPC with Mr.Athar
Raza Farooquei and Krishan Kumar,
Advs.
Mr. Sidharth Joshi, Mr. Ambreen and
Ms. Tanuja Chhetri, Advs. for R-3
Mr. Manu Beri and Mr. Prateek
Kasilwal, Advs. for R-5
Mr. Kuber Dewan, Ms. Neeharika
Aggarwal and Ms. Trisha
Raychaudhuri Advs. for R-4
+ W.P.(C) 7956/2021 & CM APPL. 24724/2021(stay)
HIMANSHU BAROLA AND ORS ..... Petitioner
Through Mr. Aditya Parolia, Mr. Piyush Singh,
Mr. Akshay Srivastava, Ms. Aditi
Sinha & Mr. Sourav Sharma, Advs
versus
UNION OF INDIA AND ORS ..... Respondents
Through Mr. Ruchir Mishra and Mr. Mukesh
Kumar Tiwari, Adv.
Mr.Nishant Awana, Adv. for R-5
Mr. Manu Beri and Mr. Prateek
Kasilwal, Advs. for R-7
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 15 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
Mr.Ajay Kohli, Mr.S.S. Sobti &
Ms.Saloni Jain, Advs. for R-4
Mr. Kuber Dewan, Ms. Neeharika
Aggarwal and Ms. Trisha
Raychaudhuri Advs. for R-6
+ W.P.(C) 387/2021 & CM APPL. 1035/2021 (stay)
SARE SPRINGVIEW HEIGHTS BUYER WELFARE
ASSOCIATION ..... Petitioner
Through Mr. Atul Kumar Singh, Adv.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Sunil Dalal, Sr. Adv. With Ms.
Ruchi Gour Narula, Mr. Devashish
Bhadauria, Mr. Mohit Bhadu, Advs.
for R-6
Mr.Nishant Awana, Adv. for R-5
Mr. Sarat Chandra, Adv. for UOI
Mr. Siddharth Sangal, Adv. for R-7
Mr. Kuber Dewan, Ms. Neeharika
Aggarwal and Ms. Trisha
Raychaudhuri Advs. for R-8
+ W.P.(C) 1144/2021 & CM APPL. 3235/2021 (stay)
GROUP CAPTAIN PRABHAKARA
KANKANADY RETD. ..... Petitioner
Through Mr. Saurabh Ajay Gupta and Mr.
Nishant Bishnoi, Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr.V.Giri, Sr. Adv. with Mr.Ramesh
Babu, Ms.Manisha Singh, Ms.Nisha
Sharma, Ms.Sanya Panjwani,
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 16 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
Ms.Tanya Chowdhary & Ms.Jagriti
Bharti, Advs. for RBI
Mr. Dev P. Bhardwaj, CGSC with
Mr. Surender Kumar, Adv. for UOI
Mr. Santosh Kumar Rout, Adv. for R-
3
Mr. Ajay Kohli, Mr. S. S. Sobti and
Ms. Saloni Jain, Advs. for R-5
+ W.P.(C) 1149/2021& CM APPL. 3250/2021 (stay)
PASHMINA BROOKWOODS APARTMENT
ALLOTTEES/OWNER WELFARE ASSOCIATION ..... Petitioner
Through Mr. Aditya Parolia, Mr. Piyush Singh,
Mr. Akshay Srivastava, Ms. Aditi
Sinha & Mr. Sourav Sharma, Advs
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr.V.Giri, Sr. Adv. with Mr.Ramesh
Babu, Ms.Manisha Singh, Ms.Nisha
Sharma, Ms.Sanya Panjwani,
Ms.Tanya Chowdhary & Ms.Jagriti
Bharti, Advs. for RBI
Mr. Manish Mohan, CGSC with Mr.
Ms. Dhwani Sharma, Adv.
Mr. Ajay Kohli, Mr.S.S. Sobti &
Ms.Saloni Jain, Advs.
Mr.Nishant Awana, Adv. for R-5
Mr. Shashwat Kumar and Mr. Naman
Mittal, Advs. for R-6
Mr. Manu Beri and Mr. Prateek
Kasilwal, Advs. for R-7
Mr. Kuber Dewan, Ms. Neeharika
Aggarwal and Ms. Trisha
Raychaudhuri Advs.
Mr. Ajay Kohli, Mr. S. S. Sobti and
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 17 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
Ms. Saloni Jain, Advs. for R-4
+ W.P.(C) 1225/2021 & CM APPL. 3451/2021 (stay)
MOHINDER PAL SINGH & ORS. ..... Petitioners
Through Mr. Aditya Parolia, Mr. Piyush Singh,
Mr. Akshay Srivastava, Ms. Aditi
Sinha & Mr. Sourav Sharma, Advs
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr.V.Giri, Sr. Adv. with Mr.Ramesh
Babu, Ms.Manisha Singh, Ms.Nisha
Sharma, Ms.Sanya Panjwani,
Ms.Tanya Chowdhary & Ms.Jagriti
Bharti, Advs. for RBI
Mr. Ashish Makhija and Mr. Deep
Bisht, Advs. for R-3
Mr. Manu Beri and Mr. Prateek
Kasilwal, Advs. for R-8
Mr. Kuber Dewan, Ms. Neeharika
Aggarwal and Ms. Trisha
Raychaudhuri Advs. for R-6
Ms. Suparna Srivastava, CGSC
with Soumya Singh, Advocate
+ W.P.(C) 1377/2021
J B SINGH & ORS. ..... Petitioners
Through Mr. Nupur Mitra, Adv.
versus
PNB HOUSING FINANCE LTD & ORS. ..... Respondents
Through Mr. Ajay Kohli, Mr.S.S. Sobti &
Ms.Saloni Jain, Advs. for R-1.
Mr. Kuber Dewan, Ms. Neeharika
Aggarwal & Ms. Trisha
Raychaudhuri, Advs. for R-6
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 18 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
CM APPL.5399/2022 in W.P.(C) 14828/2021
1. Exemption allowed, subject to all just exceptions.
2. Notarized affidavit be filed within two weeks of this Court resuming
physical hearing.
3. The application is disposed of.
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)14359/2021,
W.P.(C)14828/2021, W.P.(C)14859/2021, W.P.(C)1251/2022,
W.P.(C)6466/2021, W.P.(C)9491/2020, W.P.(C)9493/2020,
W.P.(C)5542/2021, W.P.(C)5870/2021, W.P.(C)5879/2021,
W.P.(C)6165/2021, W.P.(C)7749/2021, W.P.(C)7766/2021,
W.P.(C)7956/2021, W.P.(C)387/2021, W.P.(C)1144/2021,
W.P.(C)1149/2021, W.P.(C)1225/2021 & W.P.(C)1377/2021
4. The present batch of petitions preferred under Articles 226 and 227 of
the Constitution of India, brings into light the well-known sorry state of
affairs which has been recently going on in the construction industry. The
petitioners, who are all home buyers, having booked their flats by giving the
initial advance instalments from their hard-earned income, have approached
this Court with a grievance that despite the Circulars issued by the Reserve
Bank of India (hereinafter referred to as RBI), and the National Housing
Bank (hereinafter referred to as NHB), which clearly mandate that the banks
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W.P.(C) 10223/2021 & conn. Page 19 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
and other financial institutions should desist from offering loans in
subvention schemes offered by the developer, and should disburse the loan
only on the basis of the stages of construction, the banks, as also the various
housing finance institutions, have been disbursing the loan amount to the
developers without even examining the fact as to whether the developers are
in a position to complete the construction.
5. The petitioners herein, booked their flats with the respondent
developers and took home loans under the subvention scheme by entering
into a tripartite agreement with the developers and the bank/Housing
Finance Companies (hereinafter referred to as HFCs). The scheme provided
for the banks/HFCs to disburse the sanctioned amount directly to the
accounts of the developers, who were to then pay the pre-EMIs or the full
EMIs on the sanctioned loan amount, until such a time that the possession of
the booked residential units would be handed over to the home buyers. In
most cases, it was also provided that if the possession of the residential flats
could not be delivered in the time stipulated by the developers, it would be
up to the developers to continue payment of the pre-EMIs, till the finally
handing over possession to the home buyers.
6. However, when the developers started defaulting in making the
payments towards the EMIs to the banks/HFCs, action had been initiated by
most banks and HFCs against the petitioners. The said action was taken
based primarily on the premise that, in terms of the home loan agreement
entered into between the parties, the petitioner borrowers, had made a
categorical assurance to the banks/HFCs, that there would be no default in
payment of the EMIs, and the petitioner borrowers’ liability to repay the
loan was an independent contractual obligation, irrespective of any dispute
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W.P.(C) 10223/2021 & conn. Page 20 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
that may arise between the developer and the borrower. It was at this stage
that the present petitions have been filed, seeking a direction to the
bank/HFCs not to charge the EMIs from the petitioners and other home
buyers, till possession is delivered to them by the developers.
7. In support of their prayer, the petitioners have placed reliance on the
directions issued by the RBI and NHB vide the circulars and guidelines
issued from time to time, wherein the banks and the HFCs have been
directed to exercise due caution while disbursing of housing loans
sanctioned to individuals. As per the circulars issued by the RBI, without
carrying out due diligence as to the stage of construction, no disbursal of
housing loans sanctioned to individuals should be made. In fact, the practice
of upfront disbursement in cases of incomplete or under-construction
housing projects has been deprecated.
8. Learned counsel for the petitioners submit, that once the respondent
HFCs have chosen to act in flagrant violation of the directions issued by the
RBI and the NHB, they cannot claim payment towards the loan amount,
which they pre-maturely disbursed to the developers from the petitioners.
Moreover, as per the agreement between the parties, the pre-EMIs and EMIs
were to be paid by the developers until the possession was handed over to
the home buyers, which the developers have now stopped paying. Therefore,
merely because the petitioners i.e., the home buyers had entered into a tri-
partite agreement with the banks/housing finance institutions and the
developers, they cannot be held liable to re-pay the loan amount, on account
of default of the developers who have not only stopped paying the EMIs, but
have also not, till date, handed over possession of the flats to any home
buyers.
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W.P.(C) 10223/2021 & conn. Page 21 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
9. They contend that that the bank/financing institutions, have in fact,
acted in collusion with the developers, in releasing the loan amount even
without examining whether the developer was in a position to construct the
flats or not and are, therefore, also guilty of dereliction of duty by issuing
loans in respect of projects, which both the developers, and the bank/HFC,
knew would not take off, or were not on track to be completed at a suitable
time.
10. They therefore, pray, that in these circumstances, when the petitioners
have already been deprived of their hard-earned money, and that too without
the completion of the construction of the housing projects being anywhere in
sight, the banks/HFCs ought not to be permitted to take any coercive action
against the petitioners, as they had, despite the directions of the RBI,
released the loan amount without carrying out due diligence to the
developers, many of whom are now facing insolvency proceedings. It is
contended that, on account of these coercive steps, the negative impact on
the petitioner’s credit rating or CIBIL score, has left them without even the
option of obtaining any credit facilities, even in case of emergencies and that
too when, due to the prevailing Covid-19 pandemic in the country, and the
ensuing lockdowns/curfews imposed to restrict the spread of the same,
incomes and savings have already been severely affected.
11. In support of the petitions, reliance is placed on the orders passed in
W.P. (C) 6774/2021 titled as Hridesh Kumar Pathak v. Bank of
Maharashtra and W.P. (C) 10759/2021 being Jayanta Kumar Mishra and
Another v. Union of India , wherein the Division Bench has, by way of
interim orders, restrained the banks/HFCs from taking coercive steps against
the petitioners/home buyers. Reliance is further placed on a recent decision
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 22 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
of the Apex Court in Supertech Ltd. vs. Emerald Court Owner Resident
Welfare Association (2021) 10 SCC 1 , wherein, after noticing the plight of
the homebuyers, the Court has directed the developer to refund the entire
amount with interest.
12. Though pleadings in some of the matters are still not complete,
learned counsel for the banks/HFCs, have vehemently opposed the grant of
any interim relief. They submit that once the petitioners had knowingly
signed a tri-partite agreement, they cannot now shift the blame solely on the
bank or the HFCs for any default on the part of the developers, and evade
their liability to re-pay EMIs in respect of the loans issued in the favour of
the petitioners. While not denying, that the constructions of flats has not
been completed in any of the projects herein, they submit that payment was
released on the basis of specific requests received from the petitioners, who
cannot shirk from discharging their liabilities under the contract.
13. Mr. Dalal, learned senior counsel for the HFCs further submits, that in
some of the petitions, arbitral awards in respect of the amount payable by
the petitioners, in accordance with the tri-partite agreement have already
been passed and therefore, contends that the present petitions are not
maintainable. He submits, that in case, any of the banks/HFCs have violated
any of the guidelines issued by the RBI, then it is for the RBI to take
appropriate action against them. However, he seeks to urge, that this does
not entitle the petitioners to seek any interim protection in these
proceedings.
14. Learned senior counsel, Mr. V. Giri, appearing for the RBI, submits
that the Banks and HFCs are required to comply with the directions and
guidelines issued by the RBI issued under section 35A of the Banking
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W.P.(C) 10223/2021 & conn. Page 23 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
Regulations Act, 1949. He submits that vide the Master Circular on Housing
Finance dated 01.07.2015, the RBI has emphasised that the banks, while
introducing any kind of product, should take into account, the customer
suitability and ensure that the borrowers are made fully aware of the risks
and liabilities under such products. In fact, vide para 3 (f) of the said
circular, the banks have been advised that disbursal of housing loans to
individuals should be closely linked to the construction of the housing
project and upfront disbursal should not be made in cases of projects which
are still under construction. Mr. Giri, further submits that, the banks have
been advised to appoint an architect to certify the various stages of
construction of the projects, and have been further advised to ensure that
there is no diversion or siphoning of funds, for which purpose, the banks
should consider engaging their own auditors.
15. Mr. Giri, submits that, even though, subvention schemes do not
directly fall under the regulatory purview of the RBI, and the decision to be
a part of such a scheme was taken by the banks and HFCs after assessing
customer suitability, both the RBI and the NHB, have consistently advised
vide their various circulars, not only the banks, but also the HFCs, not to
offer loan products to individuals which involved such schemes. He further
submits, that insofar as the HFCs are concerned, the regulatory control qua
them, which was earlier with the NHB, has now been transferred to the RBI
with effect from 09.08.2019 whereafter, the RBI has, on 17.02.2021, issued
‘Master Direction- Non-Banking Financial Company-Housing Finance
Company (Reserve Bank) Directions, 2021’, which reiterate the directions
earlier issued by the NHB vide its circulars 18.11.2013 and 19.07.2019. He
thus submits that the directions issued by the RBI on 17.02.2021 are in line
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 24 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
with the earlier guidelines issued by the NHB, whereby the HFCs were
directed to ensure that the disbursal of the loan amount is strictly linked with
the stages of construction, and no upfront disbursement is made in case of an
under-construction project.
16. He, thus contends, that it is evident that the circulars issued by the
RBI as also the NHB, do not encourage such kind of disbursal by the
Banks/HFCs as prescribed by the subvention schemes and, therefore, it is
evident that the RBI has been discharging its statutory obligations. He
further shows the Court that, as a part of its regulatory process, if any
complaint is received by the RBI against any of the banks or HFCs,
appropriate action, including penal action, wherever warranted, will be
expeditiously taken as per law.
17. Having considered the submissions of the parties and perused the
record, I find that the petitioners appear to have been left in the lurch and
despite paying the advance amount and investing their hard-earned money to
purchase their own residential homes, the construction of the residential
flats/apartments have not been completed till date. The petitioners have not
been granted possession of the residential units as promised by the
developers, who have apparently already received the loan amounts from the
bank/HFCs. From this, it prima facie appears that the loan amounts have
been disbursed without any consideration to the stages of construction,
which disbursal is evidently not in consonance with the guidelines of the
RBI/NHB.
18. At this stage, I may first note the relevant extracts of the RBI circular
dated 01.07.2015, pertaining to the issue of subvention schemes or
“innovative housing loan schemes”. Paragraph 3 (d) (e) and (f) of the same
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W.P.(C) 10223/2021 & conn. Page 25 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
which read as under:
“(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 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.”
(emphasis supplied)
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W.P.(C) 10223/2021 & conn. Page 26 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
19. I may also refer to the circular dated 09.07.2019 issued by the NHB,
which, while reiterating the warnings mentioned in the previous circulars,
also goes on to state that funds released by any of the HFCs without linking
the disbursal to the stage of construction, would be seen as a dereliction of
duty on the part of such HFCs. The relevant extract thereof reads as under:
“3. Based on a review of the matter, HFCs are advised to
desist from offering loan products involving servicing of the
Loan dues by builders/ developers etc. on behalf of the
borrowers . The prevalent products of HFCs, if any, should
also be reviewed on the above lines. It is clarified that the
above stipulation shall also be effected in cases wherein the
HFC is yet to commence disbursements under the sanctioned
cases.
4. Further, reference is also drawn to the Circular
No.NHB(ND)/DRS/Policy Circular No.75/2016-17 dated July
01, 2016 whereby HFCs were again advised that disbursal of
housing loans should be strictly linked to the stages of
construction and no upfront disbursal should be made in case
of incomplete/un-constructed projects. It is reiterated that
disbursal of housing loans sanctioned to individuals should
be closely linked to the stages of construction of the housing
project/houses . In cases of projects sponsored by
Government/Statutory Authorities, HFCs may disburse the
loans as per the payment stages prescribed by such
authorities, even where payments sought from house buyers
are not linked to the stages of construction, provided such
authorities have no past history of non-completion of
projects.
5. HFCs should have in place a well-defined mechanism for
effective monitoring of the progress of construction of
housing projects and obtaining consent of the borrower(s)
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W.P.(C) 10223/2021 & conn. Page 27 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
prior to release of payments to the builder/ developer.
Merely obtaining borrower consent and release of funds by
the company without linkage to the stage of construction
will be seen as dereliction of duty of the HFC.”
20. I may also now refer to ‘The Housing Finance Company (Reserve
Bank) Directions, 2021’ (hereinafter referred to as ‘Directions’), issued by
the RBI on 17.02.2021, with the objective of preventing the HFCs from
conducting their affairs in a manner that might prove to be detrimental to
investors and depositors, or prejudicial to the interests of such HFCs.
Reference may be made to Clause 88 of these Directions, which deal with
the subject of ‘Disbursement Of Housing Loans To Individuals Linked To
The Stages Of Construction’. The said Clause reads as under:
88. Disbursement of housing loan to individuals linked to
the stages of construction
88.1. Disbursal of housing loans sanctioned to individuals
shall be strictly linked to the stages of construction of the
housing projects/ houses and upfront disbursal shall not be
made in case of incomplete/ under-construction/ green field
housing project/ houses .
88.2. HFCs while introducing any kind of product shall take
into account the customer suitability and appropriateness
issues and also ensure that the borrowers/customers are
made fully aware of the risk and liabilities under such
products.
88.3. In cases of projects sponsored by Government/
Statutory Authorities, HFCs may disburse the loans as per
the payment stages prescribed by such authorities, even
where payments sought from house buyers are not linked to
the stages of construction, provided such authorities have no
past history of non-completion of projects.
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W.P.(C) 10223/2021 & conn. Page 28 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
88.4. HFCs shall desist from offering loan products
involving servicing of the loan dues by builders/ developers
etc. on behalf of the borrowers.
88.5. HFCs shall have in place a well-defined mechanism
for effective monitoring of the progress of construction of
housing projects and obtaining consent of the borrower(s)
prior to release of payments to the builder/developer.
88.6. HFCs while extending finance shall take into account
the stipulations laid down under RERA, as applicable.
21. When seen in the light of these circulars, it prima facie appears, that
the Banks/HFCs have disbursed the loans, without any regard to the
advisories issued by the RBI and the NHB to banks and HFCs. The
petitioners, who were looking for a roof over their heads, entered into the
tripartite agreement with the banks/HFCs only under a bona fide impression
that the builder would adhere to the terms of the said agreement, and take
active steps towards completing the project on the given deadline. However,
despite the banks and HFCs, having disbursed the loan amount, when the
construction is admittedly not complete, the petitioners are now being asked
to pay the amount that was initially required to be paid by the developer, in
order to avoid coercive actions by the banks and HFCs.
22. At this stage, this court must also keep in mind that grave financial
hardship is being caused to the petitioners, who are individual home buyers,
on account of the devastating impact of the Covid-19 pandemic. I am,
therefore, of the view that, the petitioners who have invested their lifetime
savings and their hard-earned income to purchase residential units, cannot be
made to suffer the consequences of this apparent collusion between the
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W.P.(C) 10223/2021 & conn. Page 29 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
banks/HFCs and the developers. The question as to whether the amount
being claimed by the petitioners, ought to be paid by the developers, can be
decided only at an appropriate stage after completion of pleadings. At this
stage, it will be against the interest of justice to leave these individual
homebuyers to face coercive action from the banks/HFCs.
23. Reference may be made to the order passed by a Division Bench of
this Court in WP (C) 6774/2021 titled Hirdesh Kumar Pathak v Bank of
Maharashtra wherein a similar view was taken . Relevant observations of
the Division Bench read as under-
“In our view, prima facie, it appears that the petitioner has
been taken for a ride by the builder and it is not the
petitioner, who has received the loan amount. The Bank has
disbursed the loan amount to the builder, and in these
circumstances, it remains to the seen as to whether, or not,
the petitioner is at all liable. Moreover, the Resolution Plan
appears to be on force and there would be no justification to
subject the petitioner to the ongoing proceedings before the
DRT at this stage. We, accordingly, stay further proceedings
in O.A No. 166/2019 pending before the DRT-II, Delhi, till
further orders.”
24. It may also be appropriate to refer to the order passed in WP (C)
10759/2021 titled Jayanta Kumar Mishra & Anr. Vs. Union of India &
Ors , wherein the Court directed that no recoveries could be made from the
petitioners/homebuyers during the pendency of the petition. The relevant
para reads as under-
“Let the respondent bank file its counter-affidavit before the
next date. Till the next date, we direct that though the
proceedings before the DRT in the pending Original
Application may continue and the DRT may even proceed to
pass the final order to issue Recovery Certificate, no
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W.P.(C) 10223/2021 & conn. Page 30 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
recovery shall be made from the petitioner till further orders
in these proceedings.”
25. It may also be useful to refer to the interim order passed by the Apex
Court on 20.02.2018 in Supertech Ltd. v. Emerald Court Owner Resident
Welfare Association. The relevant extract thereof reads as under:
“Mr. N. Swaminathan, learned counsel appearing for one
of the persons falling in the last category submits that EMI is
not being paid by the petitioner-developer. Having
appreciated the controversy, we direct that the petitioner-
Supertech Ltd. shall pay the EMI, so that the home-buyers do
not get any kind of notice from bank(s).”
26. At this stage, it would also be apposite to refer to a judgement of the
Apex Court in the case of Bikram Chaterjee vs. Union of India , [2018]147
SCL 154 wherein the Apex Court took cognizance of the fact that the banks
had failed to comply with their duties, and had in fact colluded with the
developer in committing a fraud on the home buyers, and breaching public
trust. It may be useful to refer to paragraphs 69 and 127 of the judgement,
which reads as under-
“69. In the instant matter, the question of larger public
importance is involved. It is a shocking and surprising state
of affairs that such large scale cheating has taken place and
middle and poor class home buyers have been duped and
deprived of their hard-earned money and lifetime savings and
some of them had taken a loan from the bank and they are not
getting houses . Bank has made payment to the builder,
owners have the liability of making payment of amount with
interest, homebuyers are still waiting for their dream houses
to be completed.
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W.P.(C) 10223/2021 & conn. Page 31 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
127. The Forensic Auditors’ report makes it apparent that
Bankers have failed to ensure and oversee that the money
was invested in the projects. It was diverted elsewhere as
rightly found by the Forensic Auditors. Even what was paid
by the home buyers, had not been used in the projects and
stands diverted . There was, in fact, no necessity for raising
the loans from the bank. The money borrowed from banks
was used to create other assets worth thousands of crores.
Thus, the banks can realise their money from those assets
and from guarantors and not from the investment of home
buyers, not from the buildings in which loans granted by
banks have not been invested, which have been erected
partially or some are at the nascent stage, for which hard-
earned money has been paid by the home buyers”
27. In my view, the balance of convenience at this interim stage lies in
favour of the beleaguered home buyers, keeping in view that they are being
penalized despite not being at fault. The respondents’ plea that the
petitioners are obligated to pay the amount in the pre-EMIs and the EMIs,
despite the admitted position that under the terms of the tri-partite
agreement, it was incumbent upon the developers to pay the amount of EMIs
until the possession of the flats was transferred to them, will need to be
examined. However, at this interim stage, grave and irreparable loss will be
caused to the petitioners if they are not granted any interim protection.
28. It is therefore, directed that till the next date, the respondents will
stand restrained from taking any coercive steps against the petitioners. It is
however, made clear that the observations made in this order are based on a
prima facie view and will not prejudice any of the parties at the time of final
hearing.
29. List on 28.03.2022.
30. Since, W.P.(C) 9491/2020 & W.P.(C) 1377/2021 are being treated,
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 32 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43
with the consent of the parties, as the lead matters, the parties are granted
liberty to file written submissions not running into more than 5 pages.
(REKHA PALLI)
JUDGE
JANUARY 31, 2022/ kk
Signature Not Verified
W.P.(C) 10223/2021 & conn. Page 33 of 33
Signed By:GARIMA MADAN
Location:
Signing Date:02.02.2022
14:47:43