Delhi District Court
M/S Aerens Jai Realty P. Ltd vs Housing And Urban Development on 27 September, 2022
IN THE COURT OF SHRI NAVJEET BUDHIRAJA
ADDITIONAL DISTRICT JUDGE - 03, SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI
CS DJ No.10176/16
In the matter of :
M/s Aerens Jai Realty P. Ltd.
(Previously known as Aerens
Builders P. Ltd.)
1411, Chiranjiv Tower,
43, Nehru Place,
New Delhi- 110019.
..... Plaintiff
Vs.
1. Housing and Urban Development
Corporation Ltd.,
HUDCO Bhawan,
India Habitat Centre,
Lodhi Road,
New Delhi-110001
Through its Managing Director
..... Defendant
2. Daffodil Infrastructure P. Ltd.
1411, Chiranjiv Tower,
43, Nehru Place,
New Delhi-110019
3. Haryali Developers P. Ltd.
1411, Chiranjiv Tower,
43, Nehru Place,
New Delhi-110019
4. Touchline Buildcon P. Ltd.
1411, Chiranjiv Tower,
43, Nehru Place,
New Delhi-110019 .... Proforma Defendants
Date of Institution : 21.09.2012
Date on which Judgment
CS DJ No.10176/16 1
M/s Aerens Jai Realty P. Ltd. vs. Housing
and Urban Development Corporation Ltd. & Ors.
reserved : 31.08.2022
Date of Judgment : 27.09.2022
Result : Partly Decreed
SUIT FOR RECOVERY
JUDGMENT
The present suit has been filed by the plaintiff company i.e. M/s Aerens Jai Realty Pvt Ltd (earlier known as Aerens Builders Pvt Ltd) through Sh. K K Agrawal who has been duly authorized vide Board Resolution dated 05.07.2012, seeking the relief of recovery of Rs.39,55,451/- which includes Rs.18,80,290/- and interest of Rs.20,75,161/- along with pendente-lite and future interest @ 24% per annum from the date of the institution of the suit till its realization in favour of the plaintiff and against the defendant no.1 and also to grant the cost of the present suit in favour of the plaintiff and against the defendant no.1.
2. Plaintiff is a company incorporated under the Companies Act, 1956 having its registered office at 1411, Chiranjiv Tower, 43, Nehru Place, New Delhi-110019 and is engaged in the business of real estate promotion and development all over India.
3. Defendant no.1 is a company (public sector undertaking) incorporated on 25.04.1970 under the Companies Act, 1956 fully owned by Government of India for financing of housing and urban infrastructure activities in India and the cardinal objective of the defendant no.1 is to undertake housing and urban CS DJ No.10176/16 2 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. infrastructure development programmers in the country, provide long term finance for construction of houses for residential purposes in urban and rural area and finance or undertake, the setting up of the new or satellite towns and industrial enterprise for building material.
4. Defendant no.2 to 4 are associate companies of the plaintiff duly incorporated under the Companies Act, 1956 having their registered office at 1411, Chiranjiv Tower, 43, Nehru Place, New Delhi-110019. The defendant no.2 to 4 are made proforma parties in the present suit and no relief is prayed against them.
5. The plaintiff along with its associate companies i.e. defendant no.2 to 4 in the year 2007 applied to the defendant no.1 for a term loan for the construction and development of township namely Aerens Jai City situated at Jagadhri, Yamuna Nagar, Haryana (hereinafter referred to as 'the said project') and at the time of making of the said application for the term loan, the plaintiff paid a sum of Rs.5,05,620/- vide cheques bearing No.099721 dated 29.03.2007 for Rs.4,50,000/-, 099722 dated 29.03.2007 for Rs.55,080/- and 099752 dated 28.04.2007 for Rs.540/- (totaling of Rs.5,05,620/-), all drawn on Oriental Bank of Commerce, Nehru Place, New Delhi towards processing fees to the defendant no.1. Plaintiff and defendant no.2 to 4 also submitted requisite documents along with the said application to full satisfaction of the defendant no.1 which included copies of the licenses bearing No.1032-1038, all dated 03.07.2006 and CS DJ No.10176/16 3 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. having validity for two years from their issue (hereinafter referred to as 'the licenses') obtained for development/construction of the said project from the competent authorities.
6. It is stated that the licenses submitted with the said application for grant of said term loan were valid for two years from 03.07.2006 and to get renewal of the licenses, the plaintiff and its associated companies/defendant no.2 to 4 were required to pay renewal fees, external development charges (EDC) and other charges as per the land development laws prevailing in Haryana and the same was made clear to the defendant no.1 while submitting the said application.
7. It is further stated that defendant no.1 assured the plaintiff to disburse the said term loan before the expiry of the licenses. Pursuant to the said application and documents submitted by the plaintiff and defendant no.2 to 4, the defendant no.1 vide its letter no. HUDCO/RON/19441/2008/2250 dated 04.03.2008 (letter of offer-acceptance copy) sanctioned the term loan of Rs.24.469 crores for the project on the terms and conditions as contained in the sanction letter and the said term loan was sanctioned to the plaintiff on the terms and conditions contained in the said sanction letter, which the plaintiff accepted and the parties were bound by the terms and conditions of the sanction letter.
8. It is further averred by way of plaint that as per the terms and conditions of the sanction letter, the plaintiff further paid a CS DJ No.10176/16 4 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. sum of Rs.13,74,670/- vide cheque no.814362 dated 24.03.2008 for Rs.10,87,803/- and cheque no.814385 dated 23.04.2008 for Rs.2,86,867/-, both drawn on Oriental Bank of Commerce, Nehru Place, New Delhi towards front end fee and the said payment of the front end fees, the plaintiff clearly established the fact that the plaintiff was ready, willing and serious to take the said term loan from the defendant no.1 and a loan agreement dated 11.06.2008 was executed between the parties, inter-alia, agreeing on various terms and conditions for the release of the said term loan including but not limited to creation of charge by way of mortgage by deposit of title deeds.
9. It is further stated that plaintiff vide its letter dated 28.07.2008 informed the defendant no.1 that the plaintiff and its associated companies/defendant no.2 to 4 obtained license for total area of 53.90 acres and out of the said area 19.97 acres was purchased from Centum Finance Limited (formerly known as BRL Finlease Limited) and as per the settlement, it alloted 62 plots (comprising of 22981 Sq yards) to them out of the said total area.
10. It is further stated that in view of the abovesaid letter dated 28.07.2008, the defendant No. 1 agreed for the same and vide its letter dated 01.08.2008, curtailed the said term loan from Rs.2446.90 lacs to Rs.2183.60 lacs and requested the plaintiff to furnish revised investment schedule and cash flow statement of scheme so that the Escrow Agreement and Loan Agreement are amended suitably and in compliance of the said letter dated CS DJ No.10176/16 5 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. 01.08.2008, plaintiff submitted the revised investment schedule on 06.08.2008 and cash flow statement of the scheme to the defendant No. 1 and accordingly the defendant No. 1, on 12.08.2008 called all parties at its office at its Delhi Office for execution of Amendment No. 1 to the Loan Agreement dated 11.06.2008 for change in the loan amount to Rs.2183.60 lakhs and pursuant to the same, the officials of the plaintiff and its associated companies/defendant No. 2 to 4 visited the said office of the defendant No. 1 and signed the said amendment No. 1 to the said Loan Agreement along with other amended terms and conditions and Amortization Programme for the disbursement of the sanctioned term Loan.
11. It is further submitted by way of plaint that thereafter, the plaintiff requested the defendant No. 1 to release the Sanctioned Term Loan. However, to the shock and dismay of plaintiff, the defendant No. 1 informed that the Sanctioned Term Loan would be disbursed from its Chandigarh office and the Plaintiff, vide its letter dated 13.08.2008, requested the defendant No. 1 to disburse the loan amount from its Delhi office itself as its corporate and registered office is in Delhi and its account staff, project consultants and directors who were associated with the project were available in Delhi.
12. It is further submitted that the said project was monitored from the project monitoring team of the plaintiff in Delhi and it would difficult for the plaintiff to contact with office of defendant no.1 at Chandigarh. Moreover, the said Term Loan was CS DJ No.10176/16 6 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. applied and sanctioned at New Delhi and there was no requirement of the plaintiff to approach/meet officials at Chandigarh office of the defendant no.1 for disbursement of the said term loan.
13. It is further stated that the above said letter was replied by the defendant no.1 vide letter dated 25.08.2008 of Mr. Rajinder Paul, Regional Chief, inter-alia, providing that plaintiff's requested for the disbursement for the loan amount from Delhi office has not been considered favourably by the competent authority and it was informed that on completion of legal documentation at RO-NCR, the scheme files will be transferred to the defendant no.1 at Chandigarh for monitoring and processing loan disbursement etc, however, on reason was provided to the plaintiff for non consideration of the said request for disbursement of the loan from Delhi office.
14. It is further stated that instead of releasing of the Sanctioned Term Loan at the earliest to meet out the financial requirement of plaintiff for development of the said project, a letter dated 01.09.2008 was received by the Plaintiff from the Defendant No. 1 for Amendment No. 2' to the Loan Agreement dated 11.06.2008 read with Amendment No.1 dated 12.08.2008 and the said amendment letter was sent almost one month after the first amendment, thus, admittedly there was considerable delay on the part of the Defendant No.1.
15. It is further stated that the said amendment was carried out CS DJ No.10176/16 7 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. to rectify the Defendant No. 1 own mistake in earlier amendment letter dated 12.08.2008 and loan agreement dated 11.06.2008 and the said amendment letter further provides that all other terms and conditions of the loan agreements dated 11.06.2008 and amendment letter dated 12.08.2008 shall remain unaltered and in full force and effects.
16. It is further stated that as the Plaintiff urgently required the Sanctioned Term Loan, had to accept the said Amendment No. 2 carried out by the Defendant No. 1 and further requested the Defendant No. 1 to release the Sanctioned Term Loan as the Plaintiff had to meet out various financial obligations for the development of the said Project including payment of EDC to the Concerned Authorities for renewal of the licenses.
17. It is further stated that as per the understanding between the parties, the Sanctioned Term Loan was to be released in installments, however, the Defendant No. 1 failed to release the requested installments to Plaintiff and thus, Plaintiff was constrained to write a letter dated 11.11.2008, inter-alia, requesting the Defendant No. 1 to release the 1st, 2nd and 3rd installment amounting to Rs. 15,76,40,000/-.
18. It is further stated that instead of releasing the Sanctioned Term Loan and to avoid the same, the Defendant No. 1 further asked for clarifications/ documents for the release of the Sanctioned Term Loan i.e. providing Structural Engineer Certificate, NOC from allottees of EWS plot, etc. further, the CS DJ No.10176/16 8 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. Plaintiff, vide its letter dated 13.11.2008 provided the said clarifications/ documents as required by the Defendant No. 1. However, the amount was not disbursed by the defendant no. 1.
19. It is further averred that as the Defendant No. 1 failed to disburse loan on time, Plaintiff could not deposit the EDC to the concerned authorities and, therefore, the licenses were expired and Plaintiff was forced to submit an application for the renewal of the Licenses (copy of the same was also provided with the said letter).
20. It is further averred that the Plaintiff also requested the Defendant No. 1 to release the said loan amount to it at the earliest but same was not released by the Defendant No. 1 to the Plaintiff. Further, instead of releasing of installments of the Sanctioned Term Loan, the Defendant No. 1 vide its letter bearing No. HUDCO/RC/AERENS/ 19441/2008/1110 dated 19.11.2008 i.e. after a period of almost 5 months from the date of loan agreement, intimated for first time to the Plaintiff for the requirement of providing further documents and clarifications for the release of 1st, 2nd and 3rd loan installment of Rs.1576.40 lacs.
21. It is further stated that for the first time, the Defendant No. 1 had informed to the Plaintiff and its associated companies/Defendant No. 2 to 4 that licenses issued by DTCP was valid upto 02.07.2008 and revalidated licenses were required to be furnished, though no such requirement was CS DJ No.10176/16 9 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. provided either in Loan Agreement dated 11.06.2008 or any amendment thereafter or in any other communication between the parties.
22. It is further stated that the Plaintiff vide its reply letter dated 21.11.2008 had clarified the queries/ requirements raised by the Defendant No. 1. Further, the Plaintiff provided the required documents to the Defendant No. 1 and the Plaintiff specifically clarified that it had got the license for the development of residential project after complying with all the terms and conditions of DTCP and renewal of license will be made by DTCP after completion of various inspection formalities etc.
23. It is further submitted that as the application of renewal of license was routine process, the same cannot prohibit the Plaintiff from the development of the project and as the Plaintiff had already applied for the renewal of the license, it undertook to comply with all the requirements as to renewal of the same.
24. It is further submitted that the Defendant No. 1 though satisfied with the clarifications/ documents as provided by the Plaintiff but being adamant of not releasing the installments due to some mala-fide intention and ulterior motives. Further, the Defendant No. 1 vide its letter bearing no.
HUDCO/RON/AERENS/19441/2008/1819 dated 27.01.2009 allegedly advised the Plaintiff that first installment of the Sanctioned Term Loan would be disbursed immediately on CS DJ No.10176/16 10 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. compliance of sanction terms and submission of renewal of licenses. However, no sanctioned terms were mentioned in the said letter, which was required to be complied by the Plaintiff and its associated companies/Defendant No. 2 to 4.
25. Further, it is stated that there was no requirement of providing renewed Licenses to the Defendant No. 1 either in Loan Agreement dated 11.06.2008 or any amendment thereafter or in any other communication between the parties and it is only for the first time, just to avoid releasing the Sanctioned Term Loan and to usurp/ forfeit the money deposit by the Plaintiff, the said condition was arbitrary, unjustifiably imposed by the Defendant No. 1.
26. It is further submitted that Plaintiff from time to time requested the Defendant No. 1 to release the Sanctioned Term Loan installment as the same was required for the development of the said Project and vide letter dated 27.01.2009, the Defendant No. 1 has itself admitted that Plaintiff had already completed the legal documentation of the scheme for disbursement of loan. However, instead, of releasing the installments of Sanctioned Term Loan to Plaintiff, the Defendant No. 1 vide its letter bearing no. HUDCO/RON/AJRPL/ 2008- 09/21 dated 06.04.2009 again with malafide intention and ulterior motives requested Plaintiff to expedite the compliance of the requirements as mentioned in the said letter.
27. It is further stated that it was again required by the CS DJ No.10176/16 11 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. Defendant No. 1 that revalidated license of the project be submitted by Plaintiff besides compliance of other requirements though there was no such term/ condition agreed between the parties and the said letter was sent just to avoid release of the Sanctioned Term Loan to the Plaintiff.
28. It is further the case of the plaintiff that since defendant no.1 was not disbursing the sanction term loan despite the repeated request of the plaintiff, the plaintiff suffered substantial loss and was constrained to decide not to take the loan from defendant no.1 and wrote a letter dated 31.03.2010 to refund the entire processing fee and front end fees and to cancel the sanction of the said loan. The plaintiff also requested for the release of the title papers of the property mortgage with defendant no.1, but vide letter dated 10.05.2010, defendant no.1 refused the request for refund claiming the same to be non-refundable and also that there was no delay on the part of defendant no.1 in the process of completion of legal documentation of the scheme.
29. Further, vide letter dated 24.05.2010, plaintiff provided reasons for non-submission of the renewal licenses and again requested the defendant no.1 to refund the process fee and other charges, which was replied by defendant vide letter dated 29.06.2010. Further vide letter dated 19.10.2011, defendant no.1 was requested to have a meeting with the plaintiff with regard to the refund of the processing and front end fees which was accepted by defendant no.1 and meeting was held on 24.10.2011, but eventually defendant no.1 refused to accept the pleas of the CS DJ No.10176/16 12 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. plaintiff. The plaintiff then send a legal notice dated 20.03.2012, which was acknowledged and replied by the defendant vide reply dated 14.03.2012. Thereafter, the present suit came to be filed on 21.09.2012.
30. Defendant no.1 sought to impeach the case of the plaintiff by submitting in the written statement that plaintiff is claiming the refund of process fee as well as front end fee, which is not refundable as per the terms and conditions of the loan agreement and application etc., and of which the plaintiff was well aware and as such he acknowledged the terms of the loan agreement. The loan amount could not be disbursed by defendant no.1 to plaintiff due to non-compliance of the pre-disbursement conditions by the plaintiff. It is further, inter alia, submitted that Clause 7 of letter of offer dated 04.03.2008, duly accepted by the plaintiff, has specifically pointed out that the front end fee paid by the plaintiff is non-refundable. Further, that the loan agreement dated 11.06.2008 executed between the plaintiff along with defendant no. 2 to 4 and defendant no.1 contains Clause 2.3 in respect of front end fee, stating that the same along with service tax will be charged, in addition to application fee and will not be refunded in case of even any reduction in the loan amount subsequently.
31. It is further canvassed on behalf of defendant no.1 that plaintiff was time and again asked by the defendant, by way of letters and reminders that the pre-disbursal conditions including renewal of the licenses/government sanction etc., were to be CS DJ No.10176/16 13 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. complied with, for the purpose of release of loan installments, but the plaintiff failed to do so, as a result of which the scheme was expired and defendant no.1 was not in a position to disburse the loan amount to the plaintiff. On this premise, defendant no.1 furnished para wise reply to the plaint wherein most of the averments were specifically denied and dis-affirmed. Defendant no.2 to 4, are stated to be proforma defendants, and they admitted the case of the plaintiff. Replication came to be filed on behalf of plaintiff to the written statement of defendant no.1 wherein the plaintiff re-affirmed its stand in the plaint and dis-affirmed the case of the defendant no.1.
32. The completion of pleadings was followed by admission/denial of documents, wherein defendant no.1 admitted twelve documents of the plaintiff which were marked as Ex.P-1 to Ex.P-12, which are as under:
Letter of offer dated 04.03.2008 as Ex.P-1.
Letter dated 01.08.2008 as Ex.P-2.
Letter dated 25.08.2008 as Ex.P-3.
Letter dated 01.09.2008 as Ex.P-4.
Letter dated 19.11.2008 as Ex.P-5.
Letter dated 27.01.2009 as Ex.P-6.
Letter dated 06.04.2009 as Ex.P-7.
Letter dated 10.05.2010 as Ex.P-8.
Letter dated 29.06.2010 as Ex.P-9.
Letter dated 19.10.2011 as Ex.P-10.
Loan agreement as Ex.P-11.
CS DJ No.10176/16 14
M/s Aerens Jai Realty P. Ltd. vs. Housing
and Urban Development Corporation Ltd. & Ors.
Loan application as Ex.P-12.
33. Case then graduated to the stage of framing of issues which were framed as under:
Issue no.1 : Whether the defendants withheld the amount of Rs.18,80,290/- arbitrarily, illegally and unjustifiably? OPP Issue no.2 : Whether the plaintiff is entitled for the refund of Rs.18,80,290/-? OPP Issue no.3 : Whether the plaintiff is entitled for interest, if so, at what rate and at what period? OPP Issue no.4 : Whether the plaintiff has no cause of action to file the present suit? OPD Issue no.5 : Relief.
34. Plaintiff then led its evidence by examining Sh. K K Agrawal as PW-1 vide his affidavit Ex.PW-1/A and documents Ex.PW-1/1 to Ex.PW-1/13 and the documents already admitted as Ex.P-1 to Ex.P-12. The cross-examination of this witness was deferred but later on it is reflected from the case file that vide order dated 12.07.2017 an application was moved for substitution of Authorized Representative of the plaintiff company, which was allowed and Sh. Ananda Kumar Mathan came to be substituted in the place of Sh. K K Agrawal, who tendered his evidence as PW-1 by way of affidavit Ex.PW-1/A and was discharged. This witness also could not be cross-
examined. Again, the authorized representative of the plaintiff was substituted and Sh. Kailash J. Aeren was appointed in the place of Sh. Ananda Kumar Mathan. Further, vide order dated CS DJ No.10176/16 15 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. 31.01.2019, Mr. Pawan Kumar was appointed as local commissioner to record further evidence, who only recorded part examination in chief of PW-2, vide affidavit Ex.PW-2/A and who also relied upon the documents marked as Ex.PW-2/1 to Ex.PW- 2/13 and also the admitted documents Ex.P-1 to Ex.P-12.
The documents marked as Ex.PW-2/1 to Ex.PW-2/13 are as under:
The board resolution dated 20.10.2018 as Ex.PW-2/1. Certificate of incorporation as Ex.PW-2/2.
Letter dated 06.08.2008 as Ex.PW-2/3. Letter date 13.08.2008 as Ex.PW-2/4. Letter dated 13.11.2008 as Ex.PW-2/5. Letter dated 21.11.2008 as Ex.PW-2/6. Letter dated 09.02.2010 as Ex.PW-2/7. Letter dated 25.02.2010 as Ex.PW-2/8. Letter dated 31.03.2010 as Ex.PW-2/9. Letter dated 24.05.2010 as Ex.PW-2/10. Letter dated 19.10.2011 as Ex.PW-2/11. Letter dated 20.03.2012 as Ex.PW-2/12. Reply to the legal notice dated 20.03.2012 as Ex.PW-2/13.
35. The marking of the documents Ex.PW2/7 and Ex.PW2/8 were objected by Ld. Counsel for defendant no.1, being photocopy.
36. The document Ex.PW2/7 is the photocopy of the letter dated 09.02.2010 stated to have been written by defendant no.1 CS DJ No.10176/16 16 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors.
to the plaintiff, but since original of the same has not been produced by the plaintiff, this document cannot be read into evidence. In so far as document Ex.PW2/8 i.e. the letter dated 25.02.2010 written by the plaintiff to defendant no.1, the original of the same was produced on 07.06.2019 during the recording of further evidence of PW2, thus, the objection in regard to this document is rejected.
37. PW-2 was further examined before the court, who deposed about sending a notice under Order 12 Rule 8 CPC to defendant no.1 for production of original of the letter dated 25.02.2010, the said notice is Ex.PW-1/14 and the original letter so produced by the defendant no.1 is Ex.PW-2/A. This witness was cross- examined on behalf of defendant no.1. Plaintiff thereafter closed its evidence vide statement dated 07.06.2019.
38. Defendant no.1 got examined Sh. Prashant Panigrahi, Senior Manager (Law) as DW-1 vide his affidavit Ex.DW-1/A, who was cross-examined on behalf of plaintiff. Defendant no.1 thereafter closed its evidence. Other defendants did not lead any evidence, paving the way for final arguments.
39. Ld. counsel for the plaintiff broached the arguments by referring to the fact that defendant no.2, 3 and 4 are proforma parties and no relief has been sought against them. Ld. counsel then took the court through the plaint, the admitted amount, the sanction letter, the letter of offer and the relevant clauses. Ld. counsel further highlighted the relevant clause of the front end CS DJ No.10176/16 17 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. fee contained in the loan agreement and also referred to letters exchanged between the parties with regard to the disbursal of the loan, which I shall be referring to in the discussion infra. Ld. counsel also pointed out that witness DW-1 did not have any knowledge and could not differentiate between the processing fee and front end fee. Lastly, he argued that even if the refund of the processing fee is discounted for and not refunded by defendant no.1, clear cut case is made out for the refund of front end fee, as admittedly, the loan amount was never disbursed to the plaintiff.
40. On the contrary, ld. counsel for the defendant led his tirade against the case of the plaintiff by also referring to the terms and conditions of the sanction letter and the loan agreement. He also referred to various correspondences sent to the plaintiff for compliance of the conditions of the disbursal of the loan and submitted that due to failure of the plaintiff to get the renewal of the license and the gross negligence in fulfillment of other formalities, the loan amount could not be disbursed to the plaintiff. He stressed upon the fact that since the non-disbursal of the loan amount is attributable to various lapses on the part of the plaintiff itself, no question arises of refunding the processing fee and the front end fee paid by the plaintiff, the same being non- refundable as per clause 2.3 of the loan agreement.
41. Having endowed my thoughtful consideration to the records of the case, my issue wise findings is listed below:
42. Issue no.1 : Whether the defendants withheld the amount of Rs.18,80,290/- arbitrarily, illegally and CS DJ No.10176/16 18 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. unjustifiably? OPP And Issue no.2 : Whether the plaintiff is entitled for the refund of Rs.18,80,290/-? OPP And Issue no.4 : Whether the plaintiff has no cause of action to file the present suit? OPD 42.1 All these issues are taken up together, being concatenated and involving the common discussion of the factual position and the evidence involved herein. It is an irrefragable position that the plaintiff along with its associate companies/defendant no.2 to 4, in the year 2007, applied to the defendant no.1 for a term loan for the construction and development of township, namely, Aerens Jai City situated at Jagadhri, Yamuna Nagar, Haryana (the suit project), and at the time of making said application, the plaintiff paid a sum of Rs.5,05,620/- vide cheques bearing no. 099721 dated 29.03.2007 for Rs.4,50,000/-, cheque no. 099722 dated 29.03.2007 for Rs.099722 for Rs.55,080/ and cheque no. 099752/- dated 28.04.2007 for Rs.540/- It is also an admitted position that pursuant to the said application and the documents submitted by the plaintiff, the defendant no.1 vide its letter Ex.P- 1 sanctioned the term loan of Rs.24.469/- crores for the suit project on the terms and conditions as contained in the sanction letter. It is further not challenged that the plaintiff further paid a sum of Rs.13,74,670/- vide cheque no.814362 dated 24.03.2008 for Rs.10,87,803/- and cheque no. 814385 dated 23.04.2008 for Rs.2,86,867/- towards the front end fee. It is also not in dispute that a loan agreement dated 11.06.2008 Ex.P-11 was executed CS DJ No.10176/16 19 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. between the parties on various terms and conditions for the release of the loan.
42.2 Having noted down the afore-noted unchallenged and undisputed facts and circumstances, it is observed that the controversy between the parties lie in a narrow compass, regarding the refund of the processing fee and front end fee deposited by the plaintiff to defendant no.1, in view of the further admitted position that the loan amount was not disbursed in favor of the plaintiff.
42.3 However, during arguments, ld. counsels from both the sides alluded to various correspondences exchanged between the parties in relation to disbursal of the loan and compliance of the pre-disbursal terms and conditions. Let us laconically refer to those correspondences.
42.4 The letter of offer issued by defendant no.1 in favor of plaintiff Ex.P-1 clearly shows that as per them the application of the plaintiff was processed and the finance of Rs.24.469 crores for the project was approved. The relevant excerpt of the letter of offer is as under:
"....Your application has been processed and we are pleased to prove the finance of Rs.24.469 crores for your project...."
42.5 Letter dated 01.08.2008 Ex.P-2 was also referred to which was written by defendant no.1 to the plaintiff regarding curtailment of the loan from Rs.24,46.90 lakhs to Rs.2,183.60 CS DJ No.10176/16 20 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. lakhs, with request to provide revised investment schedule and cash flow statement of the scheme so that Escrow agreement and loan agreement were amended suitably. Thereafter, vide letter dated 06.08.2008 Ex.PW-1/3, plaintiff provided revised investment schedule and cash flow statement as desired by defendant no.1.
42.6 Further, vide letter dated 13.08.2008 Ex.PW-1/4, the plaintiff made a request to defendant no.1 for disbursement of the loan from Delhi office as the corporate office and registered office of the plaintiff were situated in Delhi, but vide letter dated 25.08.2008 Ex.P-3, plaintiff was informed that his request has not been considered favorably by the competent authority and on completion of legal documentation at RO-NCR the scheme files would be transferred to HUDCO Regional Office Chandigarh for monitoring and processing loan disbursement.
42.7 Ld. counsel for the defendant no.1 has further ambitiously referred to the letter dated November 19, 2008 Ex.P-5 whereby the plaintiff was requested to furnish the following information for considering loan release:
"i. NOC from competent authority permitting development of township at the project land by the companies owning the land (as layout plan is approved in the name of Surabhi Buildcon Pvt. Ltd.) or substitution of name of the land owning companies in the approved lay out plan in place of Surbhi Buildcon Pvt. Ltd.
ii. Certificate from a structural engineer to CS DJ No.10176/16 21 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors.
the effect that all structural requirements were considered with respect to load, seismic parameters etc. while designing the buildings in line with the building codes applicable and based on soil test.
iii. It is observed that the licenses issued by DTCP was valid upto 02.07.08 revalidated license be furnished.
iv. Statutory Auditors certificate
regarding:
a) Borrowers name or its Director's name
is not in RBI defaulters lists.
b) No DRT/Legal/Economic offence case
is pending against the Borrower or its
Directors.
c) Current shareholding pattern of the
borrowers.
d) Detailed expenditure incurred on the
project till date with sources of finance and debt equity ratio.
v. Annual Audited Accounts of all the borrowing companies as on 31.03.08.
vi. The borrowing agency shall submit NOC's from all the allottees/buyers for creation of mortgage of the entire project properties in favour of HUDCO for availing the loan before the creation of security."
42.8 The afore-noted letter was replied by the plaintiff vide letter Ex.PW-1/6 dated 21.11.2008 stating that the plaintiff has completed all the pre-disbursal conditions and documentation, created security in favor of defendant no.1, with the request to release the loan amount at the earliest.
CS DJ No.10176/16 22M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. 42.9 Vide letter Ex.P-6 dated 27.01.2009, plaintiff was informed as under:
"Dear Sir, HUDCO has sanctioned loan of Rs.2183.60 lakhs to your company for the above project. Your company has deposited the upfront-fee as per the sanction letter, created the security in favour of HUDCO by mortgaging the project property and completed the legal documentation of the scheme.
This is to advise you that first installment of loan would be disbursed immediately on compliance of sanction terms and submission of renewal of license for the proposed development."
42.10 Thereafter vide letter Ex.P-7 dated 06.04.2009, plaintiff was again requested to expedite compliance of pending sanction terms and conditions as mentioned below:
"i. The revalidated license for the project.
ii. Copy of approved building plans of
villas.
iii. Structural engineer certificate towards structural safety and adherence to building codes to be furnished before availing construction loan.
iv. Details of bookings of plots/villas w.r.t. allottee name, plot no., plot area in sq. mt./sq.ft., built-up area of villa (in sq. mt./sq.ft.), saleable area of villa (in sq. ft.), estimated sale price at sanction (Rs./ sq. ft.), actual sale price, advance received with date duly supported with CA Certificate.CS DJ No.10176/16 23
M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors.
v. Change of name in the layout plan."
42.11 Finally, after some more of exchange of letters, the plaintiff being unable to seek the disbursal of the loan from defendant no.1, wrote vide its letter Ex.PW-1/9 dated 31.03.2010 that he was approaching other banks/institution for funding of the project and sought to refund the entire processing fee and the application fee and release of title paper of the property mortgaged with defendant no.1. This request was considered by defendant no.1 vide its letter dated 10.05.2010, the relevant contents of which are as under:
"Dear Sir, Please refer to your above mentioned letter regarding refund of processing fee, application fee, releasing of security documents and satisfaction of charge as you are no longer interested to avail the loan facilities from HUDCO. In this context, your request has been examined in light of HUDCO's guidelines and observed that the application fee and front-end-fees so deposited are non refundable as per HUDCO's norms. Further, it is also stated that there was no delay for our office in the process of completing the legal documentation of the scheme. The legal documentation was completed on 10.10.2008 with creation of mortgage of project properties. Thereafter your company applied for release of 1st and 2nd installment of loan which could not be considered because your company had no complied some of the loan sanction letter conditions CS DJ No.10176/16 24 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors.
which was required to be completed before loan release..."
42.12 From the afore-noted correspondences between the parties, it transpires that after initial sanction of the loan and execution of the loan agreement between the parties, defendant no.1 sought various compliances, which as per the plaintiff were fulfilled, but eventually since plaintiff and defendant no.1 were not on same page as regards the fulfillment of the terms and conditions regarding disbursal of the loan, the plaintiff chose to seek the cancellation of the sanction letter of the loan and refund of the processing fees and upfront fees.
42.13 In my opinion, it is not imperative for the decision on the issues in hand that a finding is to be returned as to owing to whose lapse, the loan amount could not be disbursed. Needless to say, no such specific issue was also framed in this regard. Nevertheless, from the correspondences noted above, defendant no.1 is found to have dilly-dallied on the disbursal of the loan in the later stages of the transaction between the parties. From the letter of offer Ex.P1, the finance was approved in favour of the plaintiff for Rs.24.469 crores, which was later revised to Rs.21.836 crores vide letter Ex.P2 and after more than five months of the letter of offer, plaintiff was informed vide letter Ex.P3 that its request has not been considered favorably by the competent authority in Delhi and the scheme files would be transferred to defendant no.1 Regional Office in Chandigarh. The whys and wherefores for not considering the request favorably by the competent authority in Delhi were not mentioned in the CS DJ No.10176/16 25 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. said letter. Defendant no.1 ought to have apprised the plaintiff about the shortfalls which led to the case of the plaintiff not being considered favorably. Further, it is also noted that by that time, the license for the project got expired and defendant no.1 requested the plaintiff for revalidation of the license for the project, amongst other compliances, thereby compelling the plaintiff to seek the loan for the project from other quarters. What is now to be found out as to whether for non-disbursal of the loan by defendant no.1 to the plaintiff, irrespective of any shortfall, the plaintiff is entitled to seek the refund of the processing fee and the front end fees.
42.14 In order to get to the core of the controversy, it is imperative to reproduce the relevant clause governing the refund of the processing fee and the front end fee.
42.15 With regard to the processing fee, ld. counsel for the defendant no.1 refer to the written statement and the affidavit of DW-1 wherein in paragraph 7, it has been categorically mentioned that the Annexure-II of the loan application contains a specific condition with regard to the prescribed application fee being non-refundable. Though the loan application form furnished by the plaintiff has not been given any specific identification in the affidavit of either of the parties, but this aspect has not been controverted on behalf of the plaintiff either in the cross-examination of DW-1 or during final arguments.
42.16 Having regard to the above, the stand of defendant no.1, CS DJ No.10176/16 26 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. on the premise of the specific clause in the loan application of the prescribed application fee being non-refundable, is justifiable as the processing fee is generally charged as a fee for acting on the request of the borrower to avail the loan, to ascertain the credit worthiness of the borrower, to ascertain viability of the project in respect of which the loan is sought etc. In the instant case, irrespective of the fact whether for whose lapse the loan could not be disbursed, it is limpid from the records that the loan application of the plaintiff was duly considered, the loan was sanctioned vide letter Ex.P-1, and thus, plaintiff now cannot seek the refund of the processing fee. Besides, during the final arguments, ld. counsel for the plaintiff also conceded to this proposition and truncated his contentions with regard to the refund of front end fee only.
42.17 With regard to the front end fee, Clause 7 of the letter of offer dated 04.03.2008 Ex.P-1 is reproduced as under:
"7. One time front end fee @ 0.50% of the total loan amount subject to maximum of Rs.100.00 lacs or such other applicable rate as may be fixed by HUDCO of loan amount sanctioned equivalent to alongwith application Service Tax with Education Cess and other levies (if any) by the Govt. will be payable to HUDCO through Demand Draft payable at New Delhi alongwith acceptance of this offer of loan. This front end fee will be in addition to the applicable fee, interest, interest tax (if applicable) and other monies payable. No refund will be made from the front end fee in case there is any reduction in CS DJ No.10176/16 27 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors.
the loan amount subsequently...."
42.18 The other clause which merit reproduction is clause 2.3 of the loan agreement dated 11.06.2008 Ex.P-11:
"2.3 Front-end-fees:
The borrower shall pay to HUDCO in addition to the interest rate, interest tax (if applicable) and other moneys payable under the Agreement, one time non-refundable front-end-fees @ 0.50% subject to maximum of Rs.100.00 Lacs alongwith service tax at applicable rate or such other applicable rate as may be fixed by HUDCO from time to time of the loan amount (except for EWS & action plan schemes where the front-end-fees shall be 0.25% subject to maximum of Rs.10.00 Lacs alongwith service tax at applicable rate or such other applicable rate as may be fixed by HUDCO from time to time of the loan amount). The front-end-fees alongwith service tax shall be payable by the borrower in one installment prior to the release of the first loan installment through a demand draft drawn in favour of HUDCO.
The front-end-fees alongwith service tax payable/deducted will be in addition to the application fee.
Provided that no refund will be made from the front end fees in case there is any reduction in the loan amount subsequently..."
42.19 On the premise of clause 2.3 as noted above, ld. Counsel for defendant no.1 has pointed out that front end fees was one CS DJ No.10176/16 28 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors.
time payable and non-refundable. To better appreciate this aspect, let us dwell upon the literal meaning of "front end fee". As per Thomson Reuters practical law, front end fee is also known as a facility fee or an arrangement fee. This is a fee paid to a lender for setting up a transaction. It is usually calculated as a percentage of the total value of the loan and is payable before or shortly after funds are drawn. Even from the clause 2.3 in the loan agreement and clause 7 in the letter of offer also, it can be culled out that the rate of the front end fees was kept at 0.50% of the total loan amount subject to maximum of 100.00 lacs.
42.20 On the premise of the definition noted above and the relevant clauses, the case of the plaintiff is to be examined as to when the loan disbursal could not be achieved, the front end fee ought to have been refunded to the plaintiff, or the said fee is to be forfeited in favor of defendant no.1.
42.21 DW-1 was confronted with the query as to what is the front end fee and what is the processing fee, to which he replied that front end fee is the fee to process the loan application, conduct due diligence and finally put up the proposal for sanction to the competent authority for sanction of the loan, the fee is used to be charged to the proposed borrowing agency. With regard to the processing fee also, he replied that his answer is the same as above. But, in my opinion, the processing fee and the front end fee are not the same thing for the simple reason that they are being charged under two separate heads and the amount of each fee also differs. Also as per clause 2.3 of the loan agreement, it is CS DJ No.10176/16 29 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. stated that the front end fee along with service tax payable/deducted will be in addition to the application fee. Thus, from this stipulation also, it can be extrapolated that the witness DW-1 has replied under the illusion that there is no distinction between the front end fee and the processing fee, which is not correct.
42.22 In so far as the interpretation of the clause relating to the front end fee is concerned, though clause 2.3 of the loan agreement Ex.P-11 provides for the same to be non-refundable, but the clause has to be read in entirety. Proviso to clause 2.3 enunciates that no refund will be made from the front end fee in case there is any reduction in the loan amount subsequently. The inference which can be drawn herein is that the front end fee is co-related to the disbursal of the loan amount. As noted herein above, as per the definition also, the front end fee is generally some percentage of the loan amount sought from the borrowing agency. On this premise, when the defendant no.1 is inserting a stipulation that in case of reduction in any loan amount, no refund of the front end fee will be made, there ought to have a stipulation as to the status of the front end fee in case no loan amount is disbursed due to the lapse of either the borrower or the borrowing agency. It seems that this stipulation has not been inserted willfully in order to make the position of the borrower weaker. But, from the proviso of the said clause, the only inference which can be deduced is that the charging of the front end fee is directly proportional to the disbursal of the loan amount and in case of non-disbursal for any reason, the CS DJ No.10176/16 30 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. borrowing agency should not be entitled to charge the front end fee and if the same has already been charged, the borrower is entitled to seek the refund. The first paragraph of the clause 2.3 is clearly not in consonance with its proviso and also with the definition of the front end fees, thus, the stipulation of it being non-refundable is clearly illegal and against public policy.
42.23 To fortify my view, I take the advantage of the observations of the Madras High Court in The Deputy General Manager, Small Industries Development Bank of India & Ors Vs. M/s Annamalai Hotels (Pvt.) Ltd, date of decision 23.10.2009 wherein in regard to refund of front end fee, it was held as under:
"25. ...In the instant case under consideration by this court, the sanction loan amount is Rs.160 lakhs, upfront fee paid is Rs.1,60,000/-. This would become non- refundable only if any of the following two conditions are satisfied:
(i) That the Bank, in fact, kept locked a sum of Rs.160 lakhs for a specified duration of time and hence they became entitled to appropriate the upfront fee. (ii) That there was no breach of the contractual obligations on the part of the bank, but only a breach on the part of the borrower.
In this case the Bank never pleaded in the written statement that they blocked an amount of Rs.160 lakhs to be disbursed to the plaintiff. Neither the bank informed the applicant about their cancellation of letter of intent in time. In fact, this court CS DJ No.10176/16 31 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors.
http://www.judis.nic.in S.A.No.587 of 2010 could see from Ex.A2 the Bank have taken nearly one year after receipt of the upfront money to inform their intention to cancel the letter of intent. That too after the applicant wrote a letter dated 28/03/2000 demanding refund.
26. In this case, bank had pleaded that there was suppression of fact touching upon the creditworthiness of one of applicant company promoter. Their inference about the creditworthiness of the applicant was not made known to the Applicant in time. After issuance of the letter of intent before commencement of disbursement of loan, three events should have followed. First, Board Resolution authorizing any one from the applicant company to represent them and sign the loan agreement. Second, execution of loan agreement between the applicant company and SIDBI and Third, payment of upfront fee of 1% and inform the schedule of disbursement of loan.
27. The facts on record show that the 1% upfront fee paid on 05/04/1999 . The Board of Directors of the applicant company has passed resolution on 10/04/1999 authorizing a person to represent them. Thereafter in normal course the parties should have entered into loan agreement and based on the terms of the http://www.judis.nic.in S.A.No.587 of 2010 loan agreement, loan amount should have been disbursed. In this case, the last two events never happened.
28. Based on the records it is clear that the CS DJ No.10176/16 32 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors.
money collected under the head upfront fee retained by the bank without any quit pro quo for more than a year without any assignable reason. Hence, the decree passed by the first appellate court is to be confirmed.."
42.24 In the face of the above discussion, it cannot be said that the plaintiff has no cause of action to file the present suit. Issue no.4 is accordingly decided against the defendant no.1 and in favour of the plaintiff.
42.25 The plaintiff is found to be entitled to seek the refund of the front end fees deposited by it to the tune of Rs.13,74,670/- from defendant no.1. In so far as the refund of the processing fee to the tune of Rs.5,05,620/- is concerned, in the light of the discussion herein above, the case of the plaintiff is found to be on the slippery road and the said relief cannot be granted in favor of the plaintiff. Issue no.1 & 2 are also accordingly decided in favour of the plaintiff and against defendant no.1.
43. Issue no.3 : Whether the plaintiff is entitled for interest, if so, at what rate and at what period? OPP 43.1 In so far as the interest component is concerned, plaintiff has amalgamated the same in the principal amount of Rs.39,55,451/-, the interest component being Rs.20,75,161/- claimed from the date of deposit of the amount till 20.08.2012 at the rate of 24% per annum. The law with regard to the according CS DJ No.10176/16 33 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. of pre-suit interest has stood crystallized in the judgment of Supreme court of India in Central Bank of India vs. Ravindra and Ors., date of decision 18.10.2001, which is as under:
"..We are, therefore, of the opinion that two- Judge Bench decision of this Court in Corporation Bank v. D.S. Gowda & Anr., and three Judge Bench decision in Bank of Baroda v. Jagannath Pigment & Chemicals & Ors., are correctly decided and are, therefore, affirmed. A creditor can charge interest from his debtor on periodical rests and also capitalise the same so as to make it a part of the principal. Such a course can be justified by stipulation in a contract voluntarily entered into between the parties or by a practice or usage well established in the world to which the parties belong. Such practice is to be found already in vogue in the field of banking business. Such contract or usage or practice can stand abrogated by legislation such as Usury Laws or Debt Relief Laws and so on.
Subject to the above we answer the reference in following terms :
(1) Subject to a binding stipulation contained in a voluntary contract between the parties and/or an established practice or usage interest on loans and ad-vances may be charged on periodical rests and also capitalised on remaining unpaid. The principal sum actually advanced coupled with the interest on periodical rests so capitalised is capable of being adjudged as principal sum on the date of the suit.CS DJ No.10176/16 34
M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors.
(2) The principal sum so adjudged is 'such principal sum' within the meaning of Section 34 of the Code of Civil Procedure Code, 1908 on which interest pendente lite and future interest i.e. post-decree interest, at such rate and for such period which the Court may deem fit, may be awarded by the Court.."
43.2 The conspectus of the afore-noted principle of law laid down is that in case of money suits, unless there is a stipulation in the contract/agreement between the parties with regard to the charging of the interest on the amount deposited, the interest component cannot be claimed. Also, it enunciates that in the absence of any agreement to this effect, any practice or usage can be brought into force.
43.3 In support of the grant of pre-suit interest, co-incidently, Ld. Counsel for the plaintiff on the day of pronouncement of this judgment also referred to the judgment of High Court of Madras in the Deputy General Manager Vs. M/s Annamalai Hotels Pvt Ltd (Supra), which is relied upon by this Court in the preceding discussion, but, this Court cannot circumvent the law laid down by the Supreme Court of India in the afore-noted judgment with regard to the grant of pre-suit interest. In the instant case, neither is there any stipulation in the agreement between the parties, nor the plaintiff has proved its case qua the interest of Rs.20,75,161/- by way of any practice or usage, the claim of the plaintiff with regard to pre-suit interest stands CS DJ No.10176/16 35 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors. jettisoned. However, by virtue of Section 34 of CPC as well as the law laid down in the afore-noted judgments, pendente-lite and future interest can be granted in favour of the plaintiff and, in my opinion, this being the commercial transaction, interest at the rate of 7.5% per annum on the sum of Rs.13,74,60/- can be awarded from the date of institution of the suit till realization of the amount. This issue is, thus, partly decided in favor of the plaintiff.
44. Issue no.5 : Relief.
44.1 The upshot of the foregoing discussion is that the suit of the plaintiff is held to be decreed for a sum of Rs.13,74,670/- at the rate of 7.5% per annum from the date of institution of the suit till realization of the amount against defendant no.1. Cost of the suit is also awarded in favor of the plaintiff. Decree sheet be prepared.
Announced & dictated in the open court on 27.09.2022 (Navjeet Budhiraja) Additional District Judge-03 South East District, Saket Courts, New Delhi 27.09.2022 Certified that this judgment contains 36 pages and each page bears my signatures.
(Navjeet Budhiraja) Additional District Judge-03 South East District, Saket Courts, New Delhi 27.09.2022 CS DJ No.10176/16 36 M/s Aerens Jai Realty P. Ltd. vs. Housing and Urban Development Corporation Ltd. & Ors.