Alok Kumar Srivastava v. Reserve Bank of India and Ors

VIBHU BAKHRU, J. CM APPL. 21794/2023 in W.P.(C) 1620/2023

¶1The application is filed seeking that the appearance of Mr. Niraj Kumar be recorded in the order dated 19.04.2023.

¶2For the reasons stated in the application, the same is allowed. The order dated 19.04.2023 is rectified to record the presence of Mr. Niraj Kumar, learned counsel as appearing for respondent No. 2 / UOI.

¶3The application stands disposed of. W.P.(C) 11254/2021 & CM APPL. 34657/2021, CM APPL. 44326/2022; W.P.(C) 13629/2022 & CM APPL. 41536/2022, CM APPL. 44353/2022; W.P.(C) 14504/2022 & CM APPL. 44309/2022; W.P.(C) 14505/2022 & CM APPL. 44311/2022; W.P.(C) 15559/2022 & CM APPL. 48417/2022; W.P.(C) 15700/2022 & CM APPL. 48859/2022; W.P.(C) 1620/2023 & CM APPL. 6163/2023; W.P.(C) 3476/2023 & CM APPL. 13481/2023, CM APPL. 13482/2023; W.P.(C) 12518/2021 & CM APPL. 39409/2021, CM APPL. 43137/2021

¶4The petitioners are homebuyers and are, essentially, aggrieved by the action instituted by the respondent bank (M/s ICICI Bank Ltd.) for recovery of the debts on account of financial assistance extended to the petitioner for purchase of the respective residential units allotted to them. The petitioners pray that the proceedings initiated against them be stayed; their CIBIL Score be restored; and recovery proceedings be initiated, against M/s AVJ Developers (India) Pvt. Ltd. (hereafter 'the developer').

¶5The petitioners had entered into separate tripartite agreements with the respondent bank and the developer for financing purchase of residential flats in a project named 'AVJ Heights'.

¶6The petitioners claim that they had booked residential flats some time in the year 2012-13 and had entered into separate Flat Buyer Agreements for the units allotted to them.

¶7They claim that the developer had introduced the petitioners to officials of the respondent bank for availing of finance facilities. Thereafter, the parties (the flat buyers, developer and the respondent bank) had entered into the tripartite agreements, as mentioned above. In terms of the agreements entered into with the respondent bank, the respondent bank had disbursed amounts to the developer. The petitioners are essentially aggrieved as the developer has neither handed over possession of the flats nor refunded any of the amounts paid by them or the respondent bank.

¶8It is the case of respondent bank that it had not financed the developer but had granted loans to the petitioners. It is contended that the parties had not only entered into tripartite agreements but a separate loan facility agreement, as well. Thus, the petitioners are liable to repay the amounts advanced notwithstanding that the developer has failed to perform its obligation of delivering the possession of the residential units booked by the petitioners.

¶9The petitioners rely on a term of the tripartite agreement whereby the developer had agreed to refund the total money received from the flat allotees (petitioners herein) and the bank, on its failure to hand over possession of the flat to the concerned flat buyers.

¶10The petitioners also contend that the respondent bank has violated the circulars issued by the Reserve Bank of India. This is disputed by the respondent bank.

¶11The first and foremost question to be addressed is whether the present petitions are required to be entertained by this Court. It is apparent from the plain reading of the writ petitions that the petitioners have founded their claim on contractual arrangements entered into with respondent bank and the developer.

¶12The present writ petitions have been filed, essentially, to pre-empt the respondent bank, from instituting / pursuing the proceedings before the learned Debts Recovery Tribunal under the Recovery of Debts and Bankruptcy Act, 1993.

¶13We are not persuaded to accept that any interference by this Court is warranted at this stage. As noted above, the petitioners have based their case on contractual arrangements entered into with respondent bank and the developer.

¶14The question whether the respondent bank is entitled to recover the amounts paid to the developer for purchase of the flats allotted to the petitioners and whether the funds so paid, were in fact, loans advanced to the petitioners, is a matter, which is required to be considered by the learned Debts Recovery Tribunal in any action that is instituted or may be instituted by respondent bank before the learned Debts Recovery Tribunal or any other court. The controversy whether the developer has failed to honour its obligations and, if so, the consequences thereof, are also matters of private dispute that are required to be agitated in an appropriate action.

¶15It is earnestly contended on behalf of the petitioners that a petition in respect of the developer (M/s AVJ Developers (India) Pvt. Ltd.) under the provisions of the Insolvency and Bankruptcy Code, 2016, has been admitted by the learned National Company Law Tribunal (NCLT). It is asserted that currently a moratorium under Section 14 of the said Code is operating. Thus, no proceeding can be instituted or continued against the developer.

¶16The petitioners are also apprehensive that they may not have an effective recourse against the developer on account of the said proceedings. However, the same is no ground for this Court to entertain the controversies, which obviously entail disputed questions of facts and law.

¶17Insofar as the petitioners' prayer for restoring the CIBIL score is concerned, no directions for the same are required to be issued by this Court at this stage. If the petitioners prevail in their defence before the learned DRT, the respondent Bank shall ensure that the same is duly communicated to the Credit Rating Agency (CIBIL) for appropriately reflecting the petitioners correct credit rating.

¶18In view of the above, the present petitions are dismissed.

¶19We clarify that we have not expressed any opinion on the merits of the contentions advanced by the parties. All rights and contentions of the parties are reserved. VIBHU BAKHRU, J AMIT MAHAJAN, J AUGUST 10, 2023 'KDK'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 10.08.2023 + W.P.(C) 11254/2021 & CM APPL. 34657/2021 & CM APPL. 44326/2022 MANIK AHUJA & ANR. ..... Petitioners versus ICICI BANK LTD. ..... Respondent + W.P.(C) 13629/2022 & CM APPL. 41536/2022 & CM APPL. 44353/2022 KAUSAR MURTAZA AND ORS ..... Petitioners Through: versus RESERVE BANK OF INDIA AND ORS ..... Respondents Through: + W.P.(C) 14504/2022 & CM APPL. 44309/2022 NAVIN KUMAR ..... Petitioner versus RESERVE BANK OF INDIA & ORS. ..... Respondents + W.P.(C) 14505/2022 & CM APPL. 44311/2022 ALOK KUMAR SRIVASTAVA ..... Petitioner versus RESERVE BANK OF INDIA AND ORS ..... Respondents + W.P.(C) 15559/2022 & CM APPL. 48417/2022 RAKESH KUMAR ASTHANA ..... Petitioner versus RESERVE BANK OF INDIA & ORS. ..... Respondents Through: + W.P.(C) 15700/2022 & CM APPL. 48859/2022 ASHWANI GOSWAMI ..... Petitioner versus RESERVE BANK OF INDIA & ORS. ..... Respondents + W.P.(C) 1620/2023 & CM APPL. 6163/2023 & CM APPL. 21794/2023 ANKIT AGARWAL ..... Petitioner versus UNION OF INDIA AND OTHERS .... Respondents + W.P.(C) 3476/2023 & CM APPL. 13481/2023 & CM APPL. 13482/2023 PAWAN KUMAR ..... Petitioner versus RESERVE BANK OF INDIA & ORS. ..... Respondents + W.P.(C) 12518/2021 & CM APPL. 39409/2021 & CM APPL. 43137/2021 T. ANANDRAJ & ANR. ..... Petitioners versus ICICI BANK LTD. & ANR. ..... Respondents Present: Mr. Ashish Chauhan, Adv. for petitioner in Item No. 14, 16, 25, 26, 31 and 33. Mr. Murari Kumar, Ms. Lisha Saha, Mr. Pranjal Azad and Mr. Achint Kumar, Advs. for petitioners in Item No. 73. Mr. Kuber Dewan, Ms. Neeharika Aggarwal and Mr. Kaustubh Srivastava, Advs. for ICICI Bank in Item No. 14, 16, 25, 26, 31, 33, 39, 41 and 73. Mr. Asheesh Jain, CGSC with Mr. Gaurav Kumar, Ms. Ankita Kedia and Ms. Ria Khanna, Advs. and Ms. Archana Shinde, GP. For R-2 – 3 in Item No. 14. Ms. Mani Gupta, Mr. Aman Chowdhary, Ms. Sonali Jain, Ms. Sreemanrini Mukherjee and Ms. Saumya Upadhaya, Advs. for Resolution Professional of AVJ Developers (India) Pvt. Ltd. in Item No. 16, 25, 26, 31, 33, 41 & 73. Mr. Niraj Kumar, Senior Central Govt. Counsel for R-1 in Item No. 39. Mr. Mann Beri and Mr. Prateek Kasliwal, Advs. for R-5 in Item No. 39. CORAM: HON'BLE MR. JUSTICE VIBHU BAKHRU HON'BLE MR. JUSTICE AMIT MAHAJAN