Delhi High Court - Orders
Sushmi Mukherjee vs National Housing Bank And Ors on 6 September, 2021
Author: Prateek Jalan
Bench: Prateek Jalan
$~4 (2021 Cause List)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 13856/2019
SUSHMI MUKHERJEE ..... Petitioner
Through: Mr. Santosh Kumar, Advocate.
versus
NATIONAL HOUSING BANK AND ORS. ..... Respondents
Through: Ms. Shobhana Takier, Advocate
for R-1/NHB.
Mr. Ajay Kohli and Ms. Saloni
Jain, Advocates for R-2/PNBHFL.
Mr. Siddharth Batra, AOR and Ms.
Shivani Chawla, Advocate for R-3,
[[
R-9 and R-10.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 06.09.2021 The proceedings in the matter have been conducted through video conferencing.
W.P.(C) 13856/2019 & CM APPL. 7804/2021 (for interim relief)
1. The petitioner took a home loan from the respondent No.11-HDFC Ltd. ["HDFC"]. The loan was in respect of a residential flat in a project to be constructed by respondent No.3-Unitech Acacia Projects Pvt. Ltd. The loan was, thereafter, foreclosed with HDFC and was transferred to the respondent No.2-PNB Housing Finance Ltd ["PNBHFL"], which made a disbursement to HDFC directly, to close the loan taken by the petitioner from HDFC.
2. Mr. Santosh Kumar, learned counsel for the petitioner, states that Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:07.09.2021 19:44:17 W.P.(C)13856/2019 Page 1 of 5 the principal amount of the loan was approximately Rs. 2.45 crores and the petitioner has already repaid an amount of approximately Rs. 2.38 crores. According to Mr. Ajay Kohli, learned counsel for PNBHFL, the dues of the petitioner, as of November, 2020 were approximately Rs. 62 Lakhs. Mr. Kohli refers to the contents of paragraph 6(xii) of the counter affidavit filed by him.
3. The contention of the petitioner in the writ petition is that the flat,which was to be made over to her in 2013, was not made over due to delays of the builder and inadequate supervision of the respondents. The petitioner, therefore, sought the following reliefs:-
"a. Directing the Central Government to formulate a scheme providing that in case the asset/flat is not made available to the petitioner, both the lender and the homebuyer/petitioner shall suffer equal loss of the Principal amount of loan, i.e. 50:50, and the loan shall be settled at 50% of the Principal amount only and interest shall not be payable, and in case the asset is made available to the Petitioner (belatedly) then the loan amount shall be settled for the Principal amount only because in such a case the asset would become available much beyond the date when it should have been made so available.
b. Restraining the Respondent No. 2 from enforcing its repayment demands and from taking any coercive action with regards its alleged outstanding instalments (past, present or future) till the issue is resolved in terms of the above prayers.
c. And/ or may pass such order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of present case."
4. In the very first order of this Court dated 24.12.2019, as far as prayer (a) is concerned, the following directions were passed:-
"3. The first prayer concerns respondent nos.4 and 5 (i.e. Union of India and Ministry of Housing and Urban Affairs respectively), that is, effectively the Union of India.Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:07.09.2021 19:44:17 W.P.(C)13856/2019 Page 2 of 5
4. Mr. Annirudh Sharma, who appears on behalf of the Union of India, will take instructions as to what is the scope of the proceedings which are pending in the Supreme Court qua respondent no.3 i.e. Unitech Acacia Projects Pvt. Ltd. ("UAPPL")
5. Mr. Santosh Kumar, who appears on behalf of the petitioner, will also file an additional affidavit in that behalf."
5. Prayer (b) was, however, rejected on the ground that it raises disputed questions of fact and the petitioner was granted liberty to take recourse to appropriate remedies.
6. The petitioner challenged the aforesaid order before the Supreme Court in SLP (C) No. 6465/2020 [Sushmi Mukherjee vs. National Housing Bank and ors]. The Supreme Court disposed of the SLP by an order dated 11.06.2020 in the following terms:-
"1. The proceedings initiated under Article 226 of the Constitution are pending before the High Court. The Special Leave Petition is directed only against a portion of the order of the High Court holding that prayer b raises disputed questions of fact. Since the facts bearing on the reliefs are interconnected it would not be appropriate to entertain the Special Leave Petition at this stage since the petition is pending before the High Court.
2. We request the High Court to endeavour an expeditious disposal having regard to the exigencies of the situation.
3. We leave it open to the petitioner to move the High Court for interim relief as may be open in law.
4. After the petition is finally disposed of by the High Court, should any grievance subsist, the petitioner may pursue such remedies as are open in law, including on the grounds which are raised in the present Special Leave Petition.
5. The Special Leave Petition is disposed of."
7. The petitioner also filed a petition for review of the order dated 24.12.2019. The review petition was dismissed as withdrawn by order Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:07.09.2021 19:44:17 W.P.(C)13856/2019 Page 3 of 5 dated 12.02.2021.
8. Mr. Santosh Kumar submits, in view of the aforesaid orders, that the petition is required to be heard on prayer (a). He submits that the petitioner is entitled to relief from the respondents in view of the inadequate supervision of the project by the respondents, contrary to the terms of the Tripartite Agreement dated 21.09.2010, entered into between the petitioner, builder and the lender. Mr. Kumar draws my attention particularly to Clause 11 of the said agreement. He also submits that the policies of the National Housing Bank["NHB"], the Reserve Bank of India ["RBI"] and the Union of India ["the Union"], also require housing finance lenders to extend a level of supervision to ensure that home buyers are not put in the predicament in which the petitioner finds herself.
9. It is submitted by Ms. Shobhana Takiar, learned counsel for the NHB, that the issue of framing of a policy in respect of the liability of the home buyers and the promoters, is subject matter of the proceedings which are pending before the Supreme Court in Bikram Chatterjee vs. Union of India [W.P.(C) 940/2017], in which various interim orders have been passed. Ms. Takiar refers to an interim order dated 23.07.2019, reported in (2019) 19 SCC 161. Ms. Takiar submits that the issue of dereliction of duty by financial institutions is also pending in the said petition.
10. According to Mr. Kohli, there are separate proceedings before the Supreme Court which relate specifically to the case of Unitech Limited. It is evident from the order dated 24.12.2019 that this Court had noted the pendency of those proceedings and directed the learned counsel for the Union and the petitioner to place the scope of those proceedings before Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:07.09.2021 19:44:17 W.P.(C)13856/2019 Page 4 of 5 the Court. Mr. Kumar states that the petitioner has done so by way of additional documents filed on 03.03.2020.
11. However, the Union has remained unrepresented for several dates of hearing. The RBI also does not appear to have entered appearance. The formulation of a scheme, as sought by the petitioner, is an important matter of public interest, which would affect thousands of home buyers and builders over several projects, as well as considerable number of lenders. The views of RBI and the Union are essential to adjudicate these issues comprehensively. Although Mr. Kumar submits that both the Union and the RBI have been served several times and that the Union, in fact, entered appearance on 24.12.2019 and keeping in mind the scope of the relief sought, Mr. Kumar is requested to forward a copy of this order to Mr. Annirudh Sharma, learned counsel, who appeared for the Union on 24.12.2019, as well as, to the office of the Additional Solicitor General of India. Learned ASG is requested to assist the Court on the next date of hearing. Mr. Kumar is also requested to serve the petition upon Mr. Ramesh Babu M.R, learned Standing Counsel for the RBI. Service be effected within three days from today. Learned ASG and the learned Standing Counsel for the RBI, are requested to take instructions as to whether the formulation of a scheme of the nature sought by the petitioner is under consideration, and place a status report/affidavit before the Court within two weeks.
12. List the writ petition and pending applications on 18.10.2021.
PRATEEK JALAN, J SEPTEMBER 6, 2021/'vp' Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:07.09.2021 19:44:17 W.P.(C)13856/2019 Page 5 of 5