Delhi High Court - Orders
Supertech Ltd And Ors vs Reserve Bank Of India And Others on 20 May, 2022
Author: Sanjeev Narula
Bench: Sanjeev Narula
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4865/2022
SUPERTECH LTD AND ORS ..... Petitioners
Through: Mr. Satvik Varma, Senior Advocate
with Mr. Ishan Dewan, Ms. Nishtha
Khurana, Mr. Lokesh Malik, Ms.
Priyal Bapna, Ms. Drishti Harpalani
and Mr. Varun Chopra, Advocates.
versus
RESERVE BANK OF INDIA AND OTHERS ..... Respondents
Through: Mr. Dayan Krishnan, Senior
Advocate with Mr. Sukrit Seth, Mr.
Ankit Banati and Ms. Shravan
Niranjan, Advocates for R-2 & 3.
Ms. Nisha Sharma, Ms. Manisha
Singh and Ms. Sanya Panjwani,
Advocates for R-1.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 20.05.2022
1. The Petitioners seek issuance of appropriate writ and passing of directions/ orders to the Respondent No. 1 - Reserve Bank of India ("RBI") to initiate an investigation into the affairs of Respondent No. 2 and 3 and revoke the NBFC license granted to them - owing to alleged illegal conduct of, inter alia, (a) illegally withdrawing Rs. 17.25 Crores from statutory escrow accounts in contravention to the mandatory provisions of RERA Act, 2016; (b) illegally retaining money upfront out of the sanctioned amounts;
(c) failing to reconcile the accounts; and (d) failing to reconcile the accounts to overshadow the payments received in excess to the tune of Rs. 277.23 Signature Not Verified Digitally Signed W.P.(C) 4865/2022 Page 1 of 5 By:SAPNA SETHI Signing Date:21.05.2022 17:30:32 Crores; and (e) constant arm twisting, harassment and coercion by Respondents No. 2 and 3 in utter disregard of the fair practices code to be mandatorily followed by them. It is also alleged that Respondents' conduct has not only affected the Petitioners, but has also affected the public at large, namely numerous homebuyers of projects being developed by Petitioners. The present petition seeks the following reliefs:
"(a) Issue an appropriate writ or direction or order, directing the Respondent No.1 Reserve Bank of India to initiate an investigation into the affairs of the Respondent No.2-3 and take appropriate actions;
(b) Direct the Respondent No.1 Reserve Bank of India to cancel /revoke the NBFC license of the Respondent No.2-3 for engaging in illegal misappropriation / withdrawal of money from the escrow account of the Petitioners, contrary to the mandatory statutory provisions;
(c) Direct the Respondent No.2-3 to remit the amount illegally withdrawn from the escrow accounts to the tune of 17.25 (Rupees Seventeen Crores Twenty-Five Lakhs Only) back to the source accounts;
(d) Award the cost of litigation;"
2. Vide order dated 25th March, 2022, in the absence of Petitioners first approaching RBI with their grievance against Respondent No. 2 and 3, Petitioners were called upon to substantiate maintainability of the petition. Mr. Satvik Varma, Senior Counsel for the Petitioners, informs that pursuant to the afore-noted order, a representation dated 7th April, 2022 has been submitted to RBI.
3. In above circumstances, now that Petitioners have approached RBI, in the opinion of the Court, Petitioners should now await the outcome of Signature Not Verified Digitally Signed W.P.(C) 4865/2022 Page 2 of 5 By:SAPNA SETHI Signing Date:21.05.2022 17:30:32 their complaint. RBI is fully empowered to examine the compliant and take a decision thereon in accordance with law. Whether indeed an investigation is required in light of the allegations made by the Petitioners - is for RBI to decide. There is no compelling reason for the Court to undertake such exercise and grant prayer (a) as sought for in the present petition. In case RBI finds no merit in the compliant and decides not to investigate into the affairs of Respondents No. 2 and 3, Petitioners would then have the liberty to pursue their remedies as are available under law. The Court is not expressing any opinion on the Petitioners' compliant and RBI shall make an independent assessment uninfluenced by any of the observations made herein. It is expected that RBI shall take a decision not later than 8 weeks from today.
4. Prayer (b), as reproduced above, is interlinked to prayer (a), and for the above reasons, no orders can be passed at this stage.
5. As regards prayer (c), Mr. Dayan Krishnan, Senior Counsel for Respondents No. 2 and 3, has drawn the attention of this Court to the interim order passed by this Court on 16th March, 2022,1 under Section 9 of the Arbitration and Conciliation Act, 1996 [hereinafter, "the Act"]. Mr. Krishnan has also handed over a copy of the paper book of the petition filed by Petitioners. The paper book as well as order dated 16th March, 2022 are retained and taken on record. The said order reads as follows:
"1. The petitioners seek quite a few reliefs to which objection is raised. At the outset, the learned Senior Advocate for the respondents submits that petition is not maintainable. Nevertheless, in a spirit to find an amicable 1 In O.M.P. (I) (Comm.) 89/2022 dated 16 th March, 2022.Signature Not Verified Digitally Signed W.P.(C) 4865/2022 Page 3 of 5 By:SAPNA SETHI Signing Date:21.05.2022 17:30:32
resolution of the lis and, insofar as the petitioners seek reconciliation of the accounts, it is agreed that upto three officers, as may be authorized by the petitioners, would visit the Gurgaon office of the respondents on 21.03.2022 from 11 o'clock onwards and on all such dates which would be necessary for reconciliation of the accounts. They will coordinate with Mr. Prabhash Babbar (Mob. 9717858499 and Email:[email protected]) in this regard.
2. As regards the other reliefs, the learned Senior Advocate for the petitioners submits that the respondents have been paid extra amounts which need to be recovered. It is likely that after reconciliation of the accounts, the amounts owed or overpaid will be cleared.
3. The learned Senior Advocate for the respondents submits that the petitioner had mortgaged certain plots of land and some apartments, which without due notice to the respondents have been sold-off and/or third party rights have been created therein. He submits that, therefore, the petitioners would first need to purge such anomalies, before they seek any equitable relief.
4. In view of the amicable resolution of the lis, renotify on 20.04.2022."
6. It thus, emerges qua prayer (c) that Petitioner has invoked the remedy under Section 9 of the Act and the Court is seized with the matter.
7. Mr. Varma controverts the contention of Mr. Krishnan and submits that prayer (c), as sought in the petition under Section 9 of the Act, does not overlap with prayer (c) in the present petition.
8. Mr. Varma's contention does not seem to be correct in light of paragraphs no. 20 and 31 of the petition under Section 9 of the Act which reads as under:
"20. However, despite the above, the Petitioners continued to make payments to the Respondents in goodwill. In fact, the Respondents, on several occasions, withdrew the money to the tune of Rs. 17.25 Crores from escrow accounts (both pre and post RERA period) but failed to adjust the same or even share the details of such adjustment. It is pertinent to mention that till date petitioners have paid Signature Not Verified Digitally Signed W.P.(C) 4865/2022 Page 4 of 5 By:SAPNA SETHI Signing Date:21.05.2022 17:30:32 an amount of Rs. 6150.52 Crores which is in excess of Rs.277.23 Crores of what was actually due, however, owing to the arbitrary and illegal conduct of the Respondents herein, it has been raising exorbitant demands without even informing the Petitioners about the actual status of each loan account.
xxx .... xxx ... xxx
31. Towards the total accrued amount of Rs.5873.29 Crores (including Principal amount of Rs.5363.40 Crores plus interest of Rs.509.89 Crores approximately), the Petitioner Group Companies has till date paid an amount of Rs.6150.52 Crore towards interest, Processing Fees and principal amounts due (including the illegal Escrow withdrawal amount of Rs.17.25 and cost of units provided in lieu of loans to the tune of Rs.298.67 Crores). So, in effect Petitioner Group Companies have a net receivable of Rs.277.23 Crores against all loan's accounts till date from Respondents. The same is also inclusive of all the amounts paid post March 2019, which is also evident from the letter dated 20.03.2020 wherein the Petitioner had highlighted that despite payments made, no statement of accounts have been provided."
From a reading of the above, it is apparent that Petitioner has already invoked its remedies for adjudication of the amount in question.
9. In any event, the Writ Court cannot give a direction for remitting the amount to the Petitioner. This is purely a factual dispute - which cannot be adjudicated in the present proceedings.
10. In view of the above, the present petition is disposed of.
SANJEEV NARULA, J MAY 20, 2022 d.negi Signature Not Verified Digitally Signed W.P.(C) 4865/2022 Page 5 of 5 By:SAPNA SETHI Signing Date:21.05.2022 17:30:32