Delhi High Court - Orders
Ashutosh Kumar Niranjan & Anr vs Union Of India & Ors on 22 May, 2023
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
$~45
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6918/2023 & CM APPL. 26937/2023
ASHUTOSH KUMAR NIRANJAN & ANR. ..... Petitioners
Through:Ms.Namrata Chandorkar, Mr.Ritesh
Khare and Mr.Akhilesh, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr.Ritu Reniwal, SPC for UOI.
CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
ORDER
% 22.05.2023 CM APPL. 26936/2023 (Exemption)
1. Allowed, subject to all just exceptions.
2. The application stands disposed of.
W.P.(C) 6918/2023 & CM APPL. 26937/2023
3. The prayer in the instant petition reads as under:
"It is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to:
i. Allow the present Petition;
ii. Issue a Writ in the nature of the Mandamus/Certiorari or any other writ directing the Respondent NBFC not to charge the EMIS/Pre-EMIS from the Petitioners; and iii. Issue a Writ in the nature of Mandamus/Certiorari or any other writ directing the Respondent NBFC, to charge all the EMIS /Pre-EM till the Completion Certificate and Occupancy Certificate is not procured by and possession is not delivered, from the Respondent Builder;
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/09/2023 at 20:51:02 -2- iv. Issue a Writ in the nature of Mandamus/Certiorari or any other writ directing the Respondent NBFC to refund the Pre-EMIS paid by the Petitioners to the Petitioners and recover the same from the Respondent Builder;
v. Issue a Writ in the nature of Mandamus/Certiorari or any other writ directing the Respondent Builder to pay the Petitioners the interest accrued on the Pre-EMIs already paid by the Petitioners and to pay the EMIs that the Petitioners will have to bear and pay to the Respondent NBFC even thereafter along with interest accrued thereon; vi. Issue a Writ in the nature of Mandamus/Certiorari or any other writ directing Respondent No. 5 to correct / rectify the CIBIL scores of the Petitioners which has been affected due to the delay or non-payment of the pre-EMI by the Respondent Builder herein;
vii. Issue a Writ in the nature of Mandamus/Certiorari or any other writ directing Respondent No. 5 not to adversely affect the CIBIL scores of the Petitioners in respect of stopped/nonpayment of the future EMIS/Pre-EMIS to be charged by the Respondent NBFC; viii. 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;
ix. Pass an appropriate order or direction to Respondent No. 2 for initiating strict action against the Respondent NBFC for violating the rules and regulations laid down by Respondent No. 2 as a regulator for the banking sector, and/or x. Pass appropriate guidelines to be followed by all the Nationalized and Private Banks/NBFCs including the Respondent NBFC herein for release/disbursal of funds to Real Estate Companies in case of loans sanctioned against any real estate project so that such acts are not repeated in future; and/or xi. Pass an appropriate order or direction appointing a committee of experts to examine the grounds raised by the Petitioners in their representation submitted to the Respondent with a direction to submit a report in a time bound manner; and/ or xii. Pass an appropriate order or directions to Respondent No. 1 to frame guidelines and monitoring system where the citizens/aggrieved This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/09/2023 at 20:51:02 -3- people submitting their objections can be monitored in a transparent and time bound manner; and/or xiii. Pass order(s) as this Hon'ble Court may deem fit and proper in the present case."
4. This court in a batch of cases in W.P.(C) 9491/2020 (being the lead matter) and connected matters vide its judgment dated 14.03.2023 has held that petitions relating to subvention scheme are not entertainable in view of the various disputed facts involved therein.
5. The relevant paragraphs of the said judgment are reproduced as under:-
"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 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 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/09/2023 at 20:51:03 -4- 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 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 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/09/2023 at 20:51:03 -5- 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, 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."
6. In view of the aforesaid, this court does not find any substance to entertain the instant petition, the petitioner, however, is at liberty to take appropriate recourse in accordance with law and if the recourse is taken, the concerned authority would decide the same as expeditiously as possible.
7. In view of the aforesaid observations, the petition stands disposed of along with the pending application.
PURUSHAINDRA KUMAR KAURAV, J MAY 22, 2023/MJ This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/09/2023 at 20:51:03