Rajasthan High Court - Jaipur
Pnb Housingh Finance Ltd vs State Of Raj And Ors on 11 January, 2017
Author: Alok Sharma
Bench: Alok Sharma
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
ORDER
(S.B. Civil Writ Petition No.2905/2014)
PNB Housing Finance Ltd. having Corporate office at 9 th Floor Antriksh Bhawan 22, KG
Marg, New Delhi-110001
having local branch office at SB-59, First Floor UDB Tower Opp. Nagar Nigam Tonk Road,
Jaipur-302015
- Petitioner
Versus
1. State of Rajasthan, through its Principal Secretary, Urban Development and Housing
Department Government of Rajasthan Secretariat Rajasthan.
2. Jaipur Development authority through its Commissioner Jawahar Lal Nehru Marg,
Jaipur.
3. Jain Realtors Private Ltd. Best Arcade, Pocket-6 Sector-12 Dwarka New Delhi-110075
4. Suresh Chand Jain Director Jain Realtors Pvt. Ltd. Best Arcade, Pocket-6, Sector-12
Dwarka, New Delhi 11--75
also at: WZ-232/6 Sadh Nagar New Delhi 11--45.
5. Ajay Kumar Jain, Director Jain Realtors Pvt. Ltd. Best Arcade, Pocket-6 Sector 12, Dwarka,
New Delhi-110075.
Also at: 1/61 Himalayan Coop Housing Society Ltd. Plot No.10 Sector-22, Dwarka Delhi-
110075
6. Viresh Goyal Director Jain Realtors Pvt. Ltd. Best Arcade, Pocket-6 Sector 12-Dwarka
New Delhi-110075.
Also at: D-II/2563 Vasant Kunj, New Delhi.
--- Respondents.
Date of Order: January 11th, 2017.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. Sanjay Jain, for the petitioner.
Mr. Rajendra Prasad, AAG with
Mr. Ashish Sharma, for the JDA.
Mr. Ashok Gaur, Senior Advocate with
Mr. Sarthak Rastogi, for respondents.
2
BY THE COURT:
The Jaipur Development Authority (JDA) vide advertisement dated 3-11-2006 proposed uction on 18-11-2006 inter alia of plot No.GH-2 (Corner) admeasuring 6029.47 sq. meters) for group housing on the Gram Ratalaya Jaipur-Diggi road. Aside of the details of the plot to be auctioned, also set out in the advertisement were the terms and conditions thereof where it was also categorically stated that the plot to be sold by auction was on "as is where is" basis. One Jain Realtors Private Limited (respondent No.3) participated in the auction for the plot in issue and came out as the highest bidder having offered Rs.6900/- per square meter aggregating to Rs.4,16,03,343/- for the plot in issue. The said bid was accepted by the JDA. Aside of registration amount of Rs.5000/- and earnest money Rs.15 lacs, Jain Realtors Private Limited deposited in part a sum of Rs.27 lacs towards due amount following the acceptance of its bid on 21-11-2006. It also requested the JDA to be allowed payment of the remainder bid amount in instalments. Permission to deposit the bid amount in instalments as sought for by Jain Realtors Private Limited was not given by the JDA. Instead, under Confirmation cum demand letter dated 23-11-2006 the aforesaid Jain Realtors Private Limited was required to pay the remainder bid amount. It appears that Jain Realtors Private Limited deposited a 3 further amount of Rs.24 lacs with the JDA under its letter dated 23- 12-2006 informing it that remainder due bid amount with reference to confirmation cum demand letter dated 23-11-2006 would soon be deposited, as arrangements to secure it by way of a bank loan were underway. An amount Rs.15 lacs was thereafter deposited by Jain Realtors Private Limited towards the auctioned plot on 29-3-2007 under two demand drafts of Rs.8 lacs and Rs.7 lacs respectively. Jain Realtors Private Limited simultaneously appear to have also raised a dispute with JDA with regard to its obligation to pay the due amounts under the confirmation cum demand letter dated 23-11-2006 on varied grounds such as there being no approach road to the plot in issue despite such a mention being made in the lay out plan referred to in the advertisement; there being no provision for electricity, water sewerage at the site; there also being no civic work commenced on the Ratlaya scheme.
Sometime in November, 2007 Jain Realtors Private Limited approached the petitioner PNB Housing finance Limited for financial assistance for payment of remainder balance amount of auctioned plot GH-2. The petitioner thereupon claims to have then approached the JDA under its communication dated 5-12-2007 seeking its "no objection"/ permission for the mortgage the subject plot, for which Jain Realtors Private Limited was the highest bidder, in the event financial assistance therefor were provided by it to Jain Realtors 4 Private Limited. Oddly a copy of the purported communication dated 5-12-2007 by the petitioner to JDA has not been annexed to the writ petition. The petitioner's case is that in pursuance to its purported letter dated 5-12-2007, under its letter dated 6-12-2007 JDA responded as under:-
"PNB Housing Finance Ltd.
B-34, Lal Kothi Shoping Centre, Tonk Road, Jaipur-15 fo"k; %& xzqi gkmflax ;kstuk jkrY;k esa xzqi gkmflax Hkw[k.M la- GH-2 (Corner) ij _.k gsrq vukifÙk izek.k& i= tkjh djus ckcr~A lUnHkZ %& vkidk@dszrk dk i= fnukad 5-12-07 egksn;] ;g izekf.kr fd;k tkrk gS fd eS- tSu jh;yVZl (Jain Realtors) izk0 fy0 dks ;kstuk xqzi gkmflax ;kstuk jkrY;k esa xqzi gkmflax Hkw[k.M GH-2 (Corner) izkf/kdj.k }kjk uhykeh esa foØ; fd;k x;k gSA uhykeh }kjk mDr xqzi gkmflax Hkw[k.M la GH-2 (Corner) Ø; djus gsrq _.k jkf'k vkidh laLFkk ls fn;s tkus ,oa mDr xqzi gkmflax Hkw[k.M la- GH-2 (Corner) dks fxjoh j[kus esa izkf/kdj.k dks dksbZ vkifÙk ugha gSA ;g vukifÙk izek.k & i= fuEufyf[kr 'krksZa ds v/khu gS%& mDr Hkw[k.M ds fy, _.k dh jkf'k dk js[kkafdr pSd@cSad Mªk¶V lh/ks gh lfpo] t;iqj fodkl izkf/kdj.k] t;iqj ds uke ls cukdj izsf"kr djuk gksxk tks fd t;iqj esa ns; gksA ;g vukifÙk izek.k&i= t;iqj fodkl izkf/kdj.k dh bl Hkw[k.M ds isVs fdlh Hkh ns; vnk;xh ds v/khu gksxkA ;g vukifÙk izek.k&i= fdlh Hkh foyEc ds fu;fefrdj.k ds vf/kdkj ds fy;s ekU; ugha gSA ekax i= fnukad 23-11-06 dks tkjhA vfrfjDr funs'kd jktLo ,oa lEifr fuLrkj.k t;iqj fodkl izkf/kdj.k] t;iqj^^ Purporting to act on JDA's communication dated 6-12-2007 the petitioner states to have processed the request of Jain Realtors Private Limited for financial assistance for payment of the amount under JDA's confirmation cum demand letter dated 23-11-2006 5 and more and executed a term loan and hypothecation agreement dated 13-3-2008 with the borrower agreeing to loan upto Rs.5 crores against the plot's mortgage subsequent to the execution of the lease deed in its favour by the JDA. The loan amount was to be disbursed in stages subject to terms and conditions set out in the loan agreement.
The petitioner's case is that simultaneous to term loan agreement dated 13-3-2008, a Director of Jain Realtors Private Limited one Ajay Kumar Jain, after due authorisation also executed a Power of Attorney in favour of the petitioner PNB Housing Finance Limited and its officers appointing them as Attorneys to deal with JDA inter alia to create/ execute a mortgage over the plot No.GH-2 and also to give them an irrevocable Power of Attorney "to carry out the obligations of the appointer in regard to creation of the aforesaid mortgage and the matters connected therewith. Jain Realtors Private Limited also apparently authorised the petitioner inter alia to pay the due amount to JDA on its behalf towards outstanding on account of the bid for plot GH-2 and to take all steps as necessary or desirable for completion of purchase of the property. The petitioner also claims to have been authorised under the Power of Attorney to appear before the Sub Registrar to get the sale deed executed by the vendor and registered in accordance with law, to receive and take delivery of the registered sale deeds and other documents of title 6 from the vendor and after registration from the Registrar. The petitioner under the aforesaid Power of Attorney was also purportedly authorised to execute mortgage of the plot in issue in its favour and have it registered. Besides, the petitioner claims to have been authorised to receive from JDA all amounts paid to JDA under the auction and confirmation cum demand letter dated 23-11-2006 in the event of cancellation of the sale of plot No.GH-2.
The petitioner PNB Housing Finance Limited then proceeded to deposit with JDA, for and on behalf of Jain Realtors Private Limited, a sum of Rs.2,30,00,000/- by a demand draft dated 13-3-2008 towards part payment of price of plot GH-2 as loan to Jain Realtors Private Limited, which also by another demand dated 12-3-2008 paid an amount Rs.1,06,91,864/- to JDA towards the price of the plot GH-2. The two aforesaid demand drafts of Rs.2,30,00,000/- and Rs.1,06,91,864/- were forwarded by the petitioner PNB Housing finance Limited to JDA vide letter dated 13-3-2008 requiring it to handover the title deeds of the plot GH-2 to it and, alternatively, in the event of cancellation of allotment to Jain Realtors Private Limited on any ground whatsoever for breach of terms and conditions of the confirmation cum demand letter dated 23-11-2006 or otherwise, to refund the amounts paid, directly to the petitioner.
It appears that the deposit of the amounts indicated under 7 confirmation cum demand letter dated 23-11-2006 having been delayed upto 13-3-2008, for beyond the time initially permitted under the confirmation cum demand letter dated 23-11-2006, disputes arose between the JDA and Jain Realtors Private Limited, as evident from JDA's letter dated 21-5-2008 with regard to payment for Rs.1,05,54,694/- as interest and penalty demanded by JDA on delayed payment. This dispute led Jain Realtors Private Limited to approaching this court under SBCWP No.13781/2008, titled Jain Realtors Private Limited Vs. State of Rajasthan and Another, impugning the JDA's demand for interest and penalty for delayed payment. This court vide interim order dated 10-12-2008 directed status quo with regard to plot GH-2. That interim order continues as of now.
The petitioner's case in this petition is that even though it had paid Rs.2.30 crores to JDA for and on behalf of Jain Realtors Private Limited pursuant to JDA's letter dated 6-12-2007 and the entire amount under the confirmation cum demand letter dated 23-11- 2006 also stood paid in respect of plot No.GH-2 auctioned to Jain Realtors Private Limited, JDA failed to execute the lease deed in favour of Jain Realtors Private Limited for reason of which the mortgage on the plot in issue has not been created to its benefit, jeopardising the petitioner's interest as the creditor as the borrower has since defaulted on its repayment obligation s under the term 8 loan aforesaid dated 13-3-2008. It has been submitted that JDA only in response to PNB Housing Finance Limited's letter dated 18- 3-2009, for the first time vide its letter dated 23-4-2009 informed the petitioner that Rs.1,05,54,694/- was due and pending against Jain Realtors Private Limited on account of interest and penalty for delayed payment of the amounts due under the confirmation cum demand letter dated 23-11-2006. Consequently the requisite lease deed qua plot No.GH-2 in favour of the highest bidder i.e. Jain Realtors Private Limited could not be executed.
The petitioner states that in the circumstances it required Jain Realtors Private Limited to repay the entire outstanding amount of loan of Rs.2,79,93,203 (inclusive of contracted interest) as of 29-2- 2012 in terms of loan agreement. Non repayment as per notice entailed resort to Section 13(2) of the Securitisation and Reconstruction of Financail Assets and Enforcement of Security Interest Act, 2002 (hereinafter `the Act of 2002) vide notice dated 9- 5-2012 requiring Jain Realtors Private Limited to pay Rs.3,40,26,766/- as of 30-4-2012 with further interest until the payment in full. Other requisite steps are also stated to have then been taken under the Act of 2002 and petitioner surprisingly claims to have come into possession of plot No.GH-2 in regard whereto lease deed had admittedly not been executed by JDA in favour of Jain 9 Realters Private Limited.
It has been submitted that thereafter resorting to the Right to Information Act, 2005 the petitioner vide letter dated 12-9-2012 required JDA to confirm the amounts payable towards penalty and interest for delayed payment of amount under confirmation cum demand letter dated 23-11-2006 for plot No.GH-2 auctioned to Jain Realtors Private Limited on 18-11-2006. JDA was also required to disclose steps required to facilitate execution of the lease deed in respect of plot in question GH-2 in favour of the petitioner PNB Housing Finance Limited. JDA however is alleged to have stated vide its letter dated 13-9-2012 that it could not proceed with the matter in view of the interim order dated 10-12-2008 for maintaining status quo passed in SBCWP No.13781/2008, titled Jain Realtors Private Limited Vs. State of Rajasthan.
It has been submitted that the petitioner in the circumstances filed an application for its impleadment in writ petition No.13781/2008. The said application was however dismissed on 4- 4-2013 with liberty to the petitioner to take requisite action against Jain Realtors Private Limited for recovery of its dues.
The petitioner claims to have filed the writ petition in terms of 10 the liberty granted by this court on 4-4-2013 in writ petition No.13781/2008, titled Jain Realtors Private Limited Vs. State of Rajasthan and others.
Heard. Considered.
Counsel for the petitioner at the outset submitted that this petition be heard only along with SBCWP No.13781/2008, Jain Realtors Private Limited Vs. JDA and others as it has been taged with the said petition under the order of this court. He further submitted that issues in the two petitions are connected and it would be appropriate to hear the present petition along with SBCWP No.13781/2008.
I find no force in the submission. The order earlier passed by this court to tag this petition with SBCWP No.13781/2008 is a routine one, and does not record the commonality of the issues in the two petitions to warrant they being heard together. The issue in the petition is inter alia of the locus standi of the petitioner to lay this petition. That has no matter of connection with SBCWP No.13781/2008 and has to be independently determined. Besides, this petition has been filed six years subsequent to SBCWP No.13781/2008. The discretion of this court to hear a matter cannot be circumscribed on a bald assertion without legal foundation. I therefore find no force in the contention of the counsel for the petitioner that the petition be heard with SBCWP No.13781/2008 11 with which it is tagged.
The petitioner claims right to resort to this petition by reference to this court's order dated 4-4-2013. The order in issue however does not so state. It reads as under:-
"After perusing the relief prayed for in this writ petition, it appears that no relief has been claimed against the applicant PNB Housing Finance Limited, therefore, they are not necessary party in this writ petition. The application is hereby rejected. However, it is clarified that order of maintaining status quo will not come in the way of applicant PNB Housing Finance Limited to take action against the petitioner firm for recovery of outstanding."
Evidently no liberty has been granted to the petitioner to invoke the extraordinary jurisdiction for agitating its grievance with regard to a loan of rs.2,30,00,000/- made over to Jain Realtors Private Limited albeit paid on its behalf to JDA. Apparently the petition is liable to be dismissed for being founded on a false statement.
Further in the facts pleaded and prayers made in the petition, I am of the considered view that the petitioner has no locus standi to lay this petition. It is trite that a petition under Article 226 of the Constitution of India can be laid inter alia for protection of legal/ fundamental rights under threat or breached by the State or any of 12 its instrumentalities. Such rights of the petitioner are not even remotely in issue in this petition. The petitioner is, on its own case, only a creditor of Jain Realtors Private Limited and its attempt to forge a legal right against the JDA or conversely JDA's statutory obligation towards it in the facts of the case pleaded is ludicrous. The petitioner has suppressed its letter dated 5-12-2007 to the JDA in response to which JDA's communication dated 6-12-2007 was sent to it. The communication aforesaid is thus without context and stand alone. And deliberately so, sought as it is to be misused by the petitioner as the foundation of this petition. The said communication dated 6-12-2007 creates no legal relationship between the petitioner and JDA. It only records a "no objection" for the auctioned plot GH-2 being mortgaged to the petitioner against a loan to Jain Realtors Private Limited but only payment of all dues to the JDA, and execution of the lease deed qua the plot in favour of Jain Realtors Private Limited. In the facts of the case, there is no occasion, to presently, dilate as counsel for the petitioner would have the court do, on the issue whether any interest in property can be created by an alleged mortgage/ hypothecation of a conditional letter of allotment subject to payment of all due charges on whatever count to the allotting authority. The judgment of the Apex Court in the case of Syndicate Bank Vs. Estate Officer 7 Manager, APIIC Ltd. [(2007)8 SCC 361] relied on by counsel for the petitioner is of no 13 avail being clearly distinguishable on facts. In any event the right of mortgagee claimed by the petitioner qua plot No.GH-2 for whatever its worth, would require consideration only by appropriate court seized of the dispute between the petitioner and Jain Realtors Private Limited qua the advances of money (Rs.2,30,00,000/-) made.
I am of the considered view that the Power of Attorney issued to the petitioner by Jain Realtors Private Limited on 13-3-2008 is also of no avail in conferring any right to the petitioner vis-a-vis JDA, to lay this petition in its own name with reference to the auction of 18-11-2006--as has been done in the instant case. The petitioner if at all could have on the basis of the said Power of Attorney agitated a case in the name and on behalf of Jain Realtors Private Limited and not set up a case in its own name, adverse to Jain Realtors Private Limited, as has been pleaded and is evident from the averments in the writ petition. The petitioner has thus not been able to make out any cause of action against the JDA on whose alleged arbitrariness and breach of principles of estoppel, this petition has been laid. JDA owes no legal or statutory duty to the petitioner nor has the petitioner any manner of legal right against it in regad to the auction of plot No.GH-2.
The prayer for refund of Rs.2,30,00,000/- paid to JDA for and 14 on behalf of Jain Realtors Private Limited from JDA is purely a money mater arising on a plain loan agreement dated 13-3-2008 between the petitioner and Jain Realtors Private Limited. A writ petition under Article 226 of the Constitution of India in regard thereto is completely misdirected and a misuse of the salutary jurisdiction of this court. Aside of complete lack of locus standi of the petitioner to agitate this petition under Article 226 of the Constitution of India against JDA, the petition is garbled, replete with irrelevant facts and a palpable misuse of the process of this court.
Hence the petition is dismissed with costs of Rs.1 lac of which Rs.50,000/- be deposited with the Rajasthan State Legal Services Authority Jaipur and remainder Rs.50,000/- with the Rajasthan High Court Bar Association within three months from today being utilised for better legal awareness and education.
Copy of this order be sent to the Rajasthan State Legal Services Authority as also the Rajasthan High Court Bar Association, Jaipur.
(Alok Sharma), J.
arn/ 15 All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.