Bikram Chatterji vs Union Of India

I.A. No.192235/2022, I.A. No.192248/2022, I.A. No.192436/2022, I.A. No.12917/2023 and I.A. No.26340/2023

IN

WRIT PETITION(CIVIL) NO(S). 940 OF 2017

BIKRAM CHATTERJI & ORS. ….PETITIONER(S)

VERSUS

UNION OF INDIA & ORS. ….RESPONDENT(S)

JUDGMENT

Rastogi, J.

1. The present batch of IAs has been filed by various promoters/

developers/builders working in Noida/Greater Noida for recalling of

the order dated 07th November, 2022. Pursuant thereto, orders

dated 10th June, 2020, 19th August, 2020 and 25th August, 2020 Signature Not Verified Digitally signed by

passed in the pending proceedings were recalled. Ashwani Kumar Date: 2023.02.28 17:39:35 IST Reason: 1

2. At a given point of time, lease deeds were executed between

such project builders/developers/promoters with the Noida/Greater

Noida authorities, keeping in view the commercial considerations on

agreed terms and conditions, later sought to invalidate and

intended to amend their contractual terms so far as the payment of

interest is concerned, through the intervention of this Court and all

of them have accordingly filed their respective IAs for recalling of

the order dated 7th November, 2022 passed by this Court.

3. To look into the complaint of the present applicants, it will be

apposite to take note of the background facts, which may be

relevant for proper appreciation of the grievance which each of the

applicants has pointed out in raising their joint voice for recall of

the order dated 7th November, 2022, pursuant to which the interim

orders passed by this Court dated 10 th June, 2020, 19th August,

2020, and 25th August, 2020, stood recalled by this Court.

4. It clearly manifests from the record that various writ petitions

were filed by the homebuyers, some may be in public interest, but

the substratum of the writ petitions was pertaining to various

projects of the companies of Amrapali Group, working as developers

2 in Noida/Greater Noida. It was pointed out that in the year 2011,

in Noida and Greater Noida, Amrapali Group of Companies entered

into various real estate projects for housing and proposed to

construct approximately 42,000 flats and to fulfil their

commitments, various attractive projects through the form of

brochures was widely published and it was assured that the

delivery of possession shall be made within the time­schedule as

indicated in the brochure and it was promised that they will provide

world class amenities to the homebuyers. On this public assurance

extended by the Amrapali Group of Companies, it came on record

that various homebuyers booked their apartments during the

period 2010­2014 and after entering into Allotment­cum­Flat

Buyers Agreements, payments were made by the homebuyers from

40% to 100% of the total sale consideration and later the Amrapali

Group of Companies failed to fulfill their commitments and were

unable to make available the “dream flats” to their customers and

their lifetime’s savings and hard­earned money was allegedly

siphoned by Amrapali Group of Companies.

3

5. At this stage, this Court in the interest of justice, stepped in

and took cognizance to secure the interests of homebuyers,

obviously within the four corners of law and proceeded to consider

as to what relief could be extended to the homebuyers, who booked

their flats in various projects of Amrapali Group of Companies. After

a detailed discussion, this Court decided those writ petitions by a

judgment dated 23rd July, 2019 in Bikram Chatterji & Ors. Vs.

Union of India & Ors.1 and passed certain restraints while holding

a vigil over the functioning of Amrapali Group of Companies and

directed to take all other steps which may secure the interests of

homebuyers. Para no.156 is relevant for the purpose and is

reproduced hereinbelow:

“156. Resultantly, we order as follows:

156.1. The registration of Amrapali Group of Companies under RERA shall stand cancelled.

156.2. The various lease deeds granted in favour of Amrapali Group of Companies by Noida and Greater Noida Authorities for projects in question stand cancelled and rights henceforth, to vest in Court Receiver.

156.3. We hold that Noida and Greater Noida Authorities shall have no right to sell the flats of the homebuyers or the land leased out for the realisation of their dues. Their dues shall have to be recovered from the sale of other properties which have been attached. The direction holds good for the recovery of the dues of the various banks also.

1 2019 (19) SCC 161

4 156.4. We have appointed NBCC to complete the various projects and hand over the possession to the buyers. The percentage of commission of NBCC is fixed at 8%.

156.5. The homebuyers are directed to deposit the outstanding amount under the agreement entered into with the promoters within 3 months from today in the bank account opened in UCO Bank in the branch of this Court. The amount deposited by them shall be invested in the fixed deposit to be disbursed under the order of this Court on phase­wise completion of the projects/work by NBCC.

156.6. In view of the finding recorded by the forensic auditors and fraud unearthed, indicating prima facie violation of FEMA and other fraudulent activities, money laundering, we direct the Enforcement Directorate and authorities concerned to investigate and fix liability on persons responsible for such violation and submit the progress report in the Court and let the police also submit the report of the investigation made by them so far. 156.7. We direct the Institute of Chartered Accountants of India to initiate the appropriate disciplinary action against Mr Anil Mittal, CA for his conduct as reflected in various transactions and the findings recorded in the order and his overall conduct as found on forensic audit. Let appropriate proceedings be initiated and concluded as early as possible within 6 months and a report of action taken to be submitted to this Court. 156.8. We direct various companies/Directors and other incumbents in whose hands money of the homebuyers is available as per the report of forensic auditors, to deposit the same in the Court within one month from today and to do the needful in the manner as observed. The last opportunity of one month is granted to deposit the amount and to do the needful failing which appropriate action shall be taken against them. 156.9. The Ministry concerned of the Central Government, as well as the State Government and the Secretary of Housing and Urban Development, are directed to ensure that appropriate action is taken as against leaseholders concerning such similar projects at Noida and Greater Noida and other places in various States, where projects have not been completed. They are further directed to ensure that projects are completed in a time­bound manner as contemplated in RERA and homebuyers are not defrauded. 156.10. We appoint Shri R. Venkataramani, learned Senior Advocate, as the Court Receiver. The right of the lessee shall vest in the Court Receiver and he shall execute through authorised

5 person on his behalf, the tripartite agreement and do all other acts as may be necessary and also to ensure that title is passed on to homebuyers and possession is handed over to them. 156.11. We also direct Noida and Greater Noida Authorities to execute the tripartite agreement within one month concerning the projects where homebuyers are residing and issue completion certificate notwithstanding that the dues are to be recovered under this order by the sale of the other attached properties. Registered conveyance deed shall also be executed in favour of homebuyers, they are to be placed in the possession and they shall continue to do so in future on completion of projects or in part, as the case may be. We direct the Noida and Greater Noida Authorities to take appropriate action to do the needful in the matter. The Water Works Department of the area concerned and the Electricity Supplier are directed to provide the connections for water and electricity to homebuyers forthwith.”

6. After passing of the detailed judgment by this Court, the

matter was listed for further hearing only with an object to comply

its directions and to make an endeavour that each of the

homebuyers’ interests be secured, as possible.

7. When the matter was taken up for further hearing, apart from

the defaults committed by Amrapali Group of Companies ­ of which

cognizance was taken by this Court ­ the Court Receiver submitted

his note exploring the possibilities and avenues for securing and

augmenting the funds for execution of stalled projects of Amrapali

Group of Companies. Indisputably, upto this stage, the grievance

was confined only to examine the stalled projects of Amrapali Group

6 of Companies and this Court ventured to find out as to how the

interests of homebuyers could be secured, particularly, in the

projects of Amrapali Group of Companies.

8. Around this time, when this Court was taking a call based on

the Court Receiver’s Report, to take a further course of action in

making compliance of the directions referred to in para 156 of the

judgment passed by this Court, of which reference has been made

hereinabove, I.A. No.4139 of 2020 was filed by a builder, named,

Ace Group of Companies, seeking certain reliefs on the same lines,

as prayed for on behalf of flat buyers of Amrapali Group of

Companies and it was claimed by Ace Group of Companies in their

application that they may also get the benefit of reduction in the

rate of interest which is to be charged by the authority. It may be

appropriate to notice that Ace Group of Companies approached this

Court by filing IA No.4139 of 2020 on its own behalf and not being

authorized by the builders who have entered into their respective

lease deeds with the Noida/Greater Noida authorities, neither the

applicant (Ace Group of Companies) was holding power of attorney

on behalf of others nor authorized by other developers/project

7 proponents working with Noida/Greater Noida authorities, or that it

was in a representative capacity.

9. At the same time, there was no material available on record,

even placed by Ace Group of Companies, and no builder, including

Ace Group of Companies, could claim parity with the Amrapali

Group of Companies for the reason that this Court by its judgment

dated 23rd July, 2019, not only cancelled the lease deed executed

between the Amrapali Group of Companies and Noida/Greater

Noida authorities, but also appointed a Court Receiver and issued

certain detailed directions ­ of which reference has been made in

para 156 of the judgment of this Court ­ in reference to the

Amrapali Group of Companies.

10. We are not going at this stage on the background facts as to

what transpired to this Court, but from the material it reveals that

on a complaint made by Ace Group of Companies for reduction of

rate of interest to be charged by the Noida/Greater Noida

authorities as alike extended to Amrapali Group of Companies, the

matter was heard on 27th May, 2020 and order was reserved and

was pronounced on 10th June, 2020. It may be noticed that looking

8 to the problems in cash flow because of unprecedented Covid­19

pandemic situation and its aftermaths, general directions were

issued by the State of Uttar Pradesh on 9 th June, 2020 reducing the

rate of interest to be charged by the authorities ­ which was in rem

applicable to all the builders/project proponents who are working

and covered under the general directions issued by the Government

of Uttar Pradesh ­ and obviously this notification could not have

been available before the Court when the order was reserved on 27 th

May, 2020 and pronounced on 10th June, 2020, in reference to

which the Court reduced the rate of interest on the outstanding

premium and other dues to be realized in all such cases at the rate

of 8% per annum and made it applicable to all 114 plots which were

allotted from the year 2005 onwards by Noida/Greater Noida

authorities. The extract of para 42 of the order, which is relevant

for the purpose is reproduced hereunder:

“42. Considering the current state of real estate, the projects are standstill, and in order to give impetus to such housing projects and mainly considering plight of home buyers and as pointed out by Noida and Greater Noida Authorities that 114 plots were allotted from 2005 onwards, most of projects are incomplete; we direct that rate of interest on the outstanding premium and other dues to be realized in all such cases at the rate of 8% per annum and let the Noida and Greater Noida Authorities do a restructuring of the repayment schedule so that amount is paid and Noida and

9 Greater Noida Authorities are able to realize the same. As to reasonable time frame, we would kike to hear the parties. In case of failure to pay, the concession granted shall stand withdrawn. However, at the same time, the Noida and Greater Noida Authorities shall also ensure that not only instalments/money are deposited, but also all such projects are completed within the stipulated time.”

11. The said order came to be clarified by an order dated 10 th July,

2020 and later further orders came to be passed on various IAs filed

by M/s Prateek Group of Companies and other groups, who are

admittedly nowhere on screen from 22 nd May, 2020 to 25th August,

2020. It may be relevant to note that regarding the projects of M/s

Prateek Group of Companies, the date of allotment of lease deed

was between years 2008 and 2012 and all projects were completed

much before the cognizance was taken by this Court in the year

2019. As noticed by us in our order dated 7 th November, 2022, it

will be apposite to reproduce the same :

“That the Applicant Company, through its group companies has been allotted the following plots for the development of group housing projects as well as the progress of the Applicant on the said projects:

Sl. Plot No. & Allottee Project Date of Allotment No Location Company Name & & Lease Deed . Number of Flats constructed

10

1. E­11, Prateek Prateek 26.12.2008 Sector 61, Buildtech Fedora 251 / Noida (India) Pvt. Ltd. 31.12.2008

2. GH­04/B Prateek Prateek 08.03.2010 Sector 45 Buildtech Stylome / Noida (India) Pvt. Ltd. 545 31.03.2010

3. GH­01, Prateek Prateek 10.12.2009 Sector Realtors India Laurel 1530 / 120, Pvt. Ltd. 07.01.2010 Noida.

4. GH­01, Prateek Prateek 31.03.2010 Sector 77, Realtors India Wisteria / Noida Pvt. Ltd. 1800 26.05.2010

5. GH­01/A Prateek Prateek 02.02.2012 (Beta­II) Infraprojects Edifice 423 / Sector India Pvt. Ltd. 15.02.2012 107, Noida

12. However, an outstanding of Rs.23.78 crores was not paid to

the Noida/Greater Noida authorities ­ which was due and payable

on behalf of M/s Prateek Group of Companies and the demand was

outstanding for a sufficiently long time. But after the orders came

to be passed by this Court, later on dtd. 19 th August, 2020 and 25th

August, 2020, an application was filed on behalf of Noida/Greater

Noida authorities for recalling of all the three orders referred to

hereinabove.

13. At this stage, there was strong objection made by various

group of companies, including Ace Group of Companies, Prateek

11 Group of Companies, Paramount Group of Companies and Ajnara

Group of Companies and also by other individual builders/project

proponents and after the matter was heard at length and taking

note of the objections made, this Court finally arrived at the

conclusion that miscellaneous orders passed by this Court, in

extending the relief to other promoters/developers other than

Amrapali Group of Companies under its order dated 10 th June,

2020 followed with orders dated 19th August, 2020 and 25th August,

2020 deserve to be recalled and accordingly under order dated 7 th

November, 2022, such interim orders passed by this Court were

recalled with a further direction that the rate of interest should be

calculated in respect of builders other than Amrapali Group of

Companies, after taking into consideration the effect of the order

dated 9th June, 2020 passed by the State of U.P.

14. After passing of the order dated 7 th November, 2022, the

present IAs being I.A. No.192235/22 by M/s Prateek Infraprojects

India Pvt. Ltd.; I.A. No.192248/22 by CREDAI & NAREDCO; I.A. No.

192436/22 by M/s. Paramount Propbuild Pvt. Ltd.; I.A. No.

12917/23 by ET Infra Developers Pvt. Ltd. and I.A. No.26340/23 by

12 M/s. Surya Jyoti Software Pvt. Ltd. have been filed and each of

them has come with a common voice that once the orders were

passed by this Court after hearing the parties and taking into

consideration the objections raised by Noida/Greater Noida

authorities, there was no reason or justification for recalling of such

orders under the order impugned dated 7th November, 2022 and a

joint request is made that the order dated 7 th November, 2022

passed by this Court recalling the orders dated 10 th June, 2020,

19th August, 2020 and 25th August, 2020, may be recalled.

15. In support thereof, a further submission is made that one of

the orders passed on 10th July, 2020 has not been recalled and if

that remain on record, the authorities are under obligation to

charge interest in terms of the orders dated 10 th July, 2020, of

which reference has not been made in the order dated 7 th

November, 2022.

16. Learned counsel further submits that by notification dated 9 th

June, 2020, the State of U.P. has made applicable the rate of

interest to be charged from various builders/project proponents

and that was brought to the notice of the Court after the first order

13 came to be passed dated 10 th June, 2020 and the Court took

cognizance of the notification dated 9th June, 2020 in its

subsequent orders dated 10th July, 2020 and thereafter. It is

also their objection that if the projects run by the Amrapali Group

of Companies are entitled for certain financial benefits, why it

should not be extended to other group of companies ­ who also face

the same financial crunch during the unprecedented Covid­19

pandemic ­ and justification has been tendered to this Court for

recalling its order dated 7th November, 2022.

17. Further submission made by the learned counsel for the

applicants is that once the orders have been passed after hearing

the parties on perusal of available records, at least, miscellaneous

application filed for recalling of such orders was not valid and

justified under the guise of miscellaneous application filed at the

instance of Noida/Greater Noida authorities unless there is a

manifest apparent error or mistake being traced out in the orders of

which reference has been made in the order dated 7 th November,

2022, recalling of such orders was ordinarily not permissible under

14 the law and in support thereof reliance has been placed on various

judgments of this Court.

18. Per contra, learned counsel for the respondents appearing for

the Noida/Greater Noida authorities submits that the order dated

10th June, 2020, was the foundational order. At that stage the only

application filed, of which this Court took cognizance, was of the

Ace Group of Companies and to be more specific I.A. No.4139 of

2020 (Ace Group of Companies) and no such application has been

filed by Ace Group of Companies for recall of the order dated 7 th

November, 2022.

19. Learned counsel further submits that so far as the Prateek

Group of Companies is concerned, the statement which has come

on record and noticed by this Court in its order dated 7 th November,

2022 is indeed alarming that all its projects were completed much

before the cognizance was taken by this Court and it was unable to

pay the demand as raised by the Noida/Greater Noida authorities in

terms of the conditions of the lease deed executed with open eyes

between the parties. It also moved an IA before this Court which

was not even remotely concerned with the cause of which judicial

15 notice was taken by this Court with an object to secure interests of

the homebuyers of Amrapali Group of Companies.

20. Learned counsel further submits that so far as IAs filed by

CREDAI and NAREDCO and other developers are concerned, they

have not filed any IA upto the passing of the order dated 7 th

November, 2022 and so far as the other IAs are concerned, all came

into the pool after order of 25 th August, 2020 came to be passed by

this Court ­ at a later stage ­ and admittedly either of the

promoters/builders was not even remotely concerned, directly or

indirectly, in reference to the projects of Amrapali Group of

Companies of which judicial cognizance was taken by this Court.

21. Learned counsel further submits that once this Court ­ after

hearing the parties ­ arrived at the conclusion that the three orders

i.e. 10th June, 2020, 19th August, 2020, and 25th August, 2020 of

which a detailed reference has been made under order dated 7 th

November, 2022 deserve to be recalled, the present group of I.As are

not maintainable and deserves to be rejected.

16

22. We have heard learned counsel for the parties at length and

with their assistance perused the material available on record.

23. The undisputed facts which have come on record are that the

initiation of proceedings in the first instance in Bikram Chatterji

(supra) was only confined to consider how to secure the interests of

homebuyers of Amrapali Group of Companies and at a later stage,

interim application was filed by the Ace Group of Companies and

later few other group of companies also intervened in the

proceedings, but admittedly either of the group of companies in no

manner was related to the functioning of the Amrapali Group of

Companies ­ of which reference has been made in para 156 of the

judgment.

24. It is, however, true that at one stage this Court stepped into

the interim application filed by Ace Group of Companies and by the

other group of companies as well and passed certain interim orders

protecting them in reference to revised rate of interest chargeable

from the builders/developers with a further direction of

restructuring of the payment schedule payable to Noida/Greater

Noida authorities.

17

25. On an application being filed at the instance of Noida/Greater

Noida authorities, this Court has looked into and revisited the

material available on record at length and arrived at a conclusion

that order passed on 10th June, 2020 followed with orders dated

19th August, 2020 and 25th August, 2020 deserve to be recalled, of

which express reference has been made in detail while passing the

order dated 7th November, 2022.

26. We have examined the interim applications which have now

been filed by various group of companies for recalling of the order

dated 7th November, 2022, pursuant to which we consciously

recalled our orders dated 10th June, 2020, 19th August, 2020 and

25th August, 2020 and in the present facts and circumstances, we

find no reason/justification to recall our order dated 7 th November,

2022. Consequently, the interim applications are without

substance and deserve to be dismissed.

27. So far as the submission made that the order dated 10 th July,

2020 has not been recalled is concerned, it is without substance for

the reason that the order dated 10th July, 2020 is only a

clarification/modification of the first foundational order passed by

18 this Court on 10th June, 2020 ­ which was independently passed on

the later facts/developments placed on record. That apart, it is a

mere technical objection which needs no credence.

28. The further submission made is that if this Court arrives at

the conclusion that the orders passed by this Court on respective

IAs filed at the instance of the builders/developers deserve to be

recalled, at least their IAs may be restored and heard on merits.

The submission on the face of it appears to be attractive, but holds

no foundation for the reason that the IAs were filed by various

group of companies, including Ace Group of Companies, but they

are not in any manner concerned with the plight of homebuyers of

Amrapali Group of Companies, of which judicial cognizance was

taken by this Court and merely filing of IAs by other group of

companies who are stranger to the cognizance taken by this Court

in reference to Amrapali Group of Companies, do not deserve any

indulgence at least in the instant proceedings.

29. Consequently, the IAs are dismissed.

19 ……………………………..J. (AJAY RASTOGI)

……………………………..J. (BELA M. TRIVEDI) NEW DELHI;

FEBRUARY 28, 2023.

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