Delhi High Court - Orders
Pooja Kaushal & Anr vs Uco Bank & Ors on 19 May, 2022
Author: Najmi Waziri
Bench: Najmi Waziri
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6160/2022 & CM APPL. 18566/2022
POOJA KAUSHAL & ANR. ..... Petitioners
Through: Ms Lisha Saha and Mr Murari
Kumar, Advocates.
versus
UCO BANK & ORS. ..... Respondents
Through: Ms Nisha Sharma and Ms Manisha
Singh, Advoates for R-3/RBI.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
HON'BLE MR. JUSTICE VIKAS MAHAJAN
ORDER
% 19.05.2022 The hearing has been conducted through hybrid mode (physical and virtual hearing).
1. The contention of the learned counsel for the petitioners is that the petitioners booked a unit in the project at "The Aryana", Sector-119, Noida, UP promoted by the respondent no.2-Builder, M/s Unnati Fortune Holdings Ltd. The petitioners were allotted residential apartment by respondent no.2- Builder bearing flat no.T5-1704 for a total consideration of around ₹99,54,000/- vide allotment letter dated 21st June, 2014 and made a payment of ₹7,00,000/- (Rupees Seven Lakhs Only) as booking amount. Thereafter, the petitioner entered into a Tripartite Agreement dated 16 th July, 2014 with the respondent nos.1 and 2 for sanction of loan amount of ₹75,36,000/- (Rupee seventy Five Lakhs Thirty Six Only) in order to finance the purchase Signature Not Verified Digitally Signed By:ARUNA KANWAR Signing Date:25.05.2022 17:01:54 of the aforesaid flat. It is further submitted by the learned counsel that the respondent had disbursed the total amount of ₹75,36,000/- to the builder in one go contrary to the RBI Guidelines which provides for construction linked disbursals.
2. It is also submitted by the learned counsel for the petitioners that the respondent no.1 bank has initiated proceedings before the Debts Recovery Tribunal-I („DRT‟), New Delhi by filing OA No.671/2020 entitled "UCO Bank v. Mrs Pooja Kaushal & Anr.". It is also contended by the learned counsel for the petitioners that the Corporate Insolvency Resolution Process has been initiated against the builder before the National Company Law Tribunal („NCLT‟) in the case of "M/s Nupur Finvest Pvt. Ltd. vs. M/s Unnati Fortune Holdings Ltd., Company Petition No.IB-45/PB/2018, in which Interim Resolution Professional has been appointed and the moratorium has been put into effect in terms of section 14 of the Insolvency and Bankruptcy Code, 2016. Despite that, the respondent no.1 bank is seeking to proceed against the petitioner before the DRT.
3. It prima facie, appears that the entire loan amount has been pocketed by the builder depriving the petitioners of the benefit of the same and leaving them in the lurch.
4. Issue notice. Notice is accepted by the learned counsel named above for respondent no.3. The remaining respondents be served through Speed Post, approved courier, E-Mail, WhatsApp, SMS, Signal, and such other forms of electronic service as may be viable, through counsel as well returnable on 07.07.2022.
5. Reply be filed in four weeks. Rejoinder thereto, if any, be filed before the next date.
Signature Not Verified Digitally Signed By:ARUNA KANWAR Signing Date:25.05.2022 17:01:546. The learned counsel for the petitioners states that in a similar matter, interim relief has been granted to the borrower, therefore, the petitioners too be granted the same interim relief as granted in W.P.(C) 6774/2021 (Hridesh Kumar Pathak v. Bank of Maharashtra). The said order inter alia reads as under:-
"1. The submission of learned counsel for the petitioner is that the petitioner booked a flat with the builder, namely, Shubhkamna Buildtech Private Limited - which was coming up with the project "Shubhkamna City" in Greater Noida West, UP. The petitioner booked the flat by making a payment of Rs. 11,000/-. The petitioner has made further payments aggregating to Rs. 27,63,000/-. The builder took the loan for construction of the flats by entering into a Tripartite Agreement between the petitioner, the builder and the Bank. The Bank claims to have disbursed loan to the builder. The builder was obliged to return the amount, which has not been done. Even the flats have not been constructed. The petitioner has been left high and dry. The petitioner has lost his money to the tune of nearly Rs. 28 lakhs, and now the Bank is seeking to proceed against the petitioner to claim recovery of the amount disbursed to the builder.
2. The submission of learned counsel for the petitioner is that the process before the National Company Law Tribunal (NCLT) for Corporate Insolvency Resolution of the Builder Company is pending. There is a resolution plan formulated by the Insolvency Resolution Plan (IRP), the plan of Mr. Singhal and Mr. Sunil Agarwal was approved with 87.60% voting majority. Despite that, the respondent Bank is seeking to proceed against the petitioner before the DRT.
3. In our view, prima facie, it appears that the petitioner has been taken for a ride by the builder and it is not the petitioner, who has received the loan amount. The Bank has disbursed the loan amount to the builder, and in these circumstances, it remains to the seen as to whether, or not, the petitioner is at all liable. Moreover, the Resolution Plan appears to be on force and Signature Not Verified Digitally Signed By:ARUNA KANWAR Signing Date:25.05.2022 17:01:54 there would be no justification to subject the petitioner to the ongoing proceedings before the DRT at this stage.
4. We, accordingly, stay further proceedings in O.A No. 166/2019 pending before the DRT-II, Delhi, till further orders.
5. Issue notice to the respondent, returnable on 07.10.2021."
7. In the circumstances, further proceedings in OA No.671/2020 pending before DRT-I, Delhi is stayed, till the next date of hearing.
8. List before the Registrar for completion of pleadings on 07.07.2022.
NAJMI WAZIRI, J.
VIKAS MAHAJAN, J.
MAY 19, 2022 MK Signature Not Verified Digitally Signed By:ARUNA KANWAR Signing Date:25.05.2022 17:01:54