Hardeepak Singh And Another vs State Of U.P. And 4 Others on 27 February, 2024

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Allahabad High Court

Hardeepak Singh And Another vs State Of U.P. And 4 Others on 27 February, 2024

1. Heard Sri Ashutosh Ganguli, holding brief of Sri Utsav Singh, learned counsel for the petitioners in Writ - C No. 42269 of 2023, Sri Aditya Kashyap, holding brief of Sri Anshul Kumar Singhal, learned counsel for the petitioner in Writ - C No. 40497 of 2023, Sri Vidit Agarwal, learned counsel for the petitioner in Writ - C No. 5950 of 2024 and Sri Shashi Nandan, learned Senior Counsel, assisted by Sri Ashish Mishra, appearing on behalf of M/s Wave Megacity Center Pvt. Ltd. (the private respondent). Ms. Akansha Sharma, learned Standing Counsel, has been heard on behalf of the State respondents and Sri Mohd. Afzal on behalf of respondent-U.P. RERA.

2. M/s Wave Megacity Center (hereinafter referred to as 'the Promoter'), a private limited company, is Promoter of various housing projects in District Gautam Budh Nagar. Several complaints were filed against it by allottees of flats/shops of different projects before U.P. Real Estate Regulatory Authority. Most of the complaints were allowed and different sums became due thereunder against the Promoter. Recovery proceedings were initiated against the Promoter and its immovable properties worth Rs. 110,03,54,696/- (approximately rupees 110 crores) were attached. Several attempts were made to auction the immovable properties, but all failed.

3. In Writ - C No. 13818 of 2023 filed by Amit Goyal, an allottee of one of the plots in the housing project of the Promoter, for enforcement of the recovery certificate, a detailed order was passed on 22.5.2023 permitting the Promoter to clear the remaining outstanding dues of all the allottees in terms of different orders of U.P. RERA within eleven months by handing over post-dated cheques, apart from permitting the State respondents to proceed with the sale of the attached properties. The said order is reproduced below: -

"1. The District Magistrate, Gautam Budh Nagar has filed his affidavit in compliance of our previous order dated 15.05.2023. In the said affidavit, he has clarified that out of 111 attached properties, 38 shops are free from all encumbrances. There is no dues of Noida Authority against the said shops. Sri Shashi Nandan, learned senior counsel appearing on behalf of respondent no.4 states that in respect of these shops, respondent no.4 is also having completion/occupation certificate in its favour as well as no dues certificate from Noida Authority, meaning thereby that in case these shops are sold, these would be free from all encumbrances.

2. Sri M.C. Chaturvedi, learned Additional Advocate General assisted of Mrs. Akanksha Sharma states that the auction of these 38 shops is fixed for 29th of this month. He further states that each of these shops is being sold separately and not in one lot, so as to attract more bidders.

3. Respondent no.4 has filed his affidavit through its Director Sri Vishal Goswami. He has given a plan in paragraph 6 of the affidavit to clear off the remaining outstanding dues of the allottees in terms of orders of RERA within 11 months as follows:-

SL. No. Date of Payment of DD to RERA Amount (In Rs.)

1. 21.05.2023 5,00,00,000/- 2 19.06.2023 10,04,11,693/- 3 19.07.2023 9,06,17,078/- 4 19.08.2023 9,38,98,310/- 5 19.09.2023 9,86,34,880/- 6 19.10.2023 9,55,20,677/- 7 19.11.2023 9,30,88,082/- 8 19.12.2023 9,76,75,850/- 9 19.01.2024 10,19,52,491/- 10 19.02.2024 9,94,27,936/- 11 19.03.2024 9,23,81,923/-

TOTAL 101,36,08,920/-

4. It is further stated that Rs.7 crores was deposited by respondent no.4 before Tehsil Authorities on 10.05.2023. This fact is admitted in the affidavit filed by the District Magistrate. He has mentioned that the said amount has already been remitted to U.P. RERA by covering letter dated 17.05.2023.

5. A demand draft in a sum of Rs.5 crores drawn in favour of U.P. RERA has been handed over to Sri Mohd. Afzal, counsel for RERA in Court, to be deposited in the account of RERA towards outstanding liabilities of the allottees against the present Project i.e. M/s Wave Megacity Centre. He undertakes to hand over the said cheque to U.P. RERA for being utilized in payment of outstanding dues of the allottees.

6. As prayed by Sri Shashi Nandan, he is permitted to file joint affidavit of all the Directors of the Company-respondent no.4 mentioning that the proposal made in paragraph 6 is with their concurrence as well as that of C.M.D/M.D, if any. In the said affidavit, they will also furnish undertaking to this Court that in case the post dated cheques given as per proposal above bounces, then they will be personally liable for offence under Section 138 of the Negotiable Instruments Act, 1881 and it will also amount to violation of solemn undertaking given to this Court. He states that the post dated cheques would be handed over in Court to counsel for U.P. RERA on the next date.

7. In the meantime, the auction fixed on 29.05.2023 will be held uninfluenced by these proceedings. The bids made by prospective buyers will also remain uninfluenced and unaffected by the present proceedings. We also clarify that there is clear understanding on part of respondent no.4 that the proposal made in paragraph 6 of the affidavit would be in addition to the steps being under taken by the State respondents for auction of the shops/attached properties.

8. The District Magistrate will notify these facts to the prospective bidders well in advance. The U.P. RERA will notify the instant order on its official website so that it is made known to the general public.

9. List on 30.05.2023 as a fresh case alongwith connected cases.

10. The State respondents as well as respondent no.4 will file their affidavits and will comply with the order in letter and spirit."

4. As noted above, despite the State respondents having been permitted to put the attached shops to sale, the sale did not materialize, as no one turned up to purchase the shops in the auction. Noticing the said fact, in subsequent order dated 30.5.2023, we permitted the Promoter to hand over post-dated cheques to the counsel for U.P. RERA with liberty to it to encash the cheques submitted by the Promoter and release money to the allottees as per the seriatim in the chart annexed to the affidavit of District Magistrate dated 4.5.2023 filed in the said case. The order dated 30.5.2023 is as follows: -

"1. Heard learned counsel for the petitioner, Shri Rahul Agrawal, learned counsel for respondent no. 2 and learned Standing Counsel for the State-respondents.

2. In compliance of our previous order, affidavits of Directors of the Company (respondent no. 4) have been filed. In para 5 of the affidavits, it is stated that the Company has only two Directors namely Harmandeep Singh Kandhari and Vishal Goswami. Both of them have filed their personal affidavits stating that the proposal submitted before this Court on the previous date was with their concurrence and in case, the post-dated cheques bounces, they shall be personally liable under Section 138 of the Negotiable Instruments Act, 1881 apart from their aforesaid act being liable to be treated as a violation of the undertaking given to this Court.

3. The post-dated cheques have been handed over to Shri Mohd. Afzal, learned counsel for U.P. RERA in Court and he acknowledges receipt of the same. He states that he will transmit the cheques to U.P. RERA for being paid to the claimants, giving priority to the holder of the oldest RC.

4. We are also informed that the amount in question would only cover 101 recoveries which, according to respondent no. 4, is outstanding against it as on date meaning thereby that the recoveries which are issued henceforth would not be covered by the amount offered.

5. An affidavit has been filed on behalf of the District Magistrate by the Tehsildar. In Para 6, it is stated that on 29.05.2023, auction was held and about 15 to 20 persons came to inquire about the status of the properties put to auction but no one deposited the earnest money and, therefore, the respondents could not succeed in auctioning any of the properties.

6. Learned counsel for respondent no. 4 submits that respondent no. 4 be granted permission to bring on record proposal of intending purchasers in addition to the steps being taken by the District Administration as well as the amount being deposited by it.

7. Having regard to the entire facts, we provide that U.P. RERA will encash the cheques on the due dates and will immediately release the money to the lawful claimants in seriatum as per the chart Annexure-2 to the affidavit of the District Magistrate dated 04.05.2023 except those claim which have been privately settled. Respondent no. 4 is permitted to bring offer for sale of the attached properties from intending purchasers before this Court so that the same could be examined and if found appropriate, permission is accorded for sale thereof so that the money coming therefrom may also add upto the pool and is appropriated in liquidating the outstanding liabilities of respondent no. 4 against the claims of the allottees.

8. List on 17th July, 2023 for further hearing.

9. The instant order is being passed as it is an accepted position that there is no outstanding dues of any authority against the attached properties."

5. Since then, U.P. RERA has been making payments to the allottees by encashing post-dated cheques as per the seriatim and we are informed that there has been no default, nor any incidence of bouncing of post-dated cheques submitted by the Promoter to liquidate the outstanding liabilities.

6. The last installment as per the arrangement made vide order dated 30.5.2023 is due on 19.3.2024 and in the affidavit filed in the present proceedings, it is stated on oath that the Promoter will ensure that the advance cheque given in this regard is duly honoured.

7. As we again noticed that a large number of cases are regularly coming up for enforcement of recovery certificates against the same Promoter, we required the said respondent to apprise the Court of the manner in which it intends to clear of the liabilities which have accrued after passing of the previous orders. The District Magistrate was also directed to file his affidavit and disclose the number of pending recoveries against the Promoter.

8. In compliance of these directions, the District Magistrate has filed his affidavit and disclosed that 140 recoveries are now pending against the Promoter. This included eight recoveries which were left out from being mentioned in the chart filed in Writ - C No. 13818 of 2023 (Amit Goyal vs. State of U.P. and 3 Others). According to the District Magistrate, the total outstanding amount excluding interest against the Promoter is Rs. 122,75,77,577/-.

9. The Promoter thereafter filed its affidavit and in paragraph 20 it is stated that out of 140 recoveries, 7 recoveries were either fully paid up under earlier/present recovery process, or are double entries or not related to the Promoter. These cases are given in the chart filed as Annexure SCA-2.

10. Ms. Akansha Sharma, learned Standing Counsel, appearing for the State respondents, concedes that there were three double entries/or amount already paid, which have been shown at Sl. No. 2, 3 and 4 in Annexure SCA-2. In respect of four other entries, the stand taken is that these are not double entries, but the balance amount payable by the Promoter to the allottees after partial satisfaction of their claims. She fairly admits that after filing of the affidavit by the District Magistrate, the Promoter has satisfied the claim of two other allottees, namely Neha Sharma and Rahul Rohtagi, mentioned at Sl. No. 19 and 27, respectively in the chart submitted by District Magistrate. In paragraph 21, it is stated that the Promoter has settled the claim of twelve other persons and the said fact has been intimated to U.P. RERA. The Promoter and the allottees have filed joint applications before U.P. RERA in this regard and copies of the withdrawal proceedings have been collectively filed as Annexure SCA-3. In para 22, it is stated that the Promoter is in the process of settling claim of thirteen other allottees and for such purpose, it had already sent proposal letters with post-dated cheques to the allottees. Thus, according to the Promoter, the remaining recoveries would be 106 in number for a sum totaling Rs. 93,92,25,041/- (after excluding the two recoveries in respect of which payments have been made after the filing of the affidavit dated 12.2.2024 by District Magistrate), which the Promoter has proposed to liquidate in the following manner: -

Sl. No. Date of Payment/ Encashment Cheque No./Yes Bank Ltd. Noida U.P. Amount (Rs.) 1 19.04.2024 283093 12,78,97,598/-

2 19.05.2024 283094 12,34,58,362/-

3 19.06.2024 283095 12,69,11,108/-

4 19.07.2024 283096 12,56,70,525/-

5 19.08.2024 283097 12,10,92,879/-

6 19.09.2024 283098 12,51,74,217/-

7 19.10.2024 283099 12,49,91,984/-

8 19.11.2024 283100 10,24,69,472/-

TOTAL 97,76,66,145/-

11. Sri Shashi Nandan, learned Senior Counsel, appearing for the Promoter, assisted by Sri Ashish Mishra, states that the Promoter has already prepared post-dated cheques in favour of U.P. RERA and seeks permission of the Court to hand over the said cheques to its counsel so that the claim of the remaining allottees is liquidated in order of seniority as per the disclosures made in the affidavit of the Collector, Gautam Budh Nagar. He further states that four cases shown in Annexure SCA-2 in respect of balance amount of the allottees would be duly cleared by the Promoter by depositing the amount due therein within ten days with the Collector.

12. Sri Mohd. Afzal, learned counsel for U.P. RERA and learned counsel for the petitioners in the instant case as well as in connected matters, agree to the aforesaid proposal. Ms. Akansha Sharma, learned Standing Counsel for the State respondents, also has no objection and accordingly we permit the Promoter to hand over post-dated cheques of the amounts noted above to the counsel for U.P. RERA.

13. We record the undertaking given by Sri Ashish Mishra on behalf of the Promoter that the post-dated cheques would be duly honoured and in case any of these cheques bounces, the Directors of the Promoter Company would be personally and vicariously liable. They would also be subject to prosecution under relevant laws, apart from such act amounting to deliberate violation of the undertaking given to this Court.

14. U.P. RERA will ensure that as and when any payment is made to any allottee, due information is given to the Collector and the Promoter, so that they may also be able to update their records. U.P. RERA before making payment, will verify whether there is any compromise or settlement between the Promoter and the allottee under which the Promoter had cleared the dues and will accordingly exclude claim of such person from the list.

15. In case of default on part of the Promoter in honouring its commitments noted above, it shall become open to the Collector and U.P. RERA to proceed further in the matter in accordance with law, by treating the aforesaid arrangement to have lapsed.

16. All the petitions stand disposed of in terms of the above arrangement.

(Kshitij Shailendra, J.)    (Manoj Kumar Gupta, J.)
 
Order Date :- 27.2.2024
 
Jaideep/-

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Allahabad High Court