Bikram Chatterji vs Union Of India on 29 June, 2021


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Supreme Court of India

Bikram Chatterji vs Union Of India on 29 June, 2021

Author: Uday Umesh Lalit

                                                                                                    1

                                                                                       REPORTABLE


                                        IN THE SUPREME COURT OF INDIA
                                         CIVIL ORIGINAL JURISDICTION

                                     I.A. NO.168186 OF 2018, I.A. NO. 109882 OF 2020,
                                      I.A. NO.114865 OF 2020, I.A. NO.153341 Of 2019,
                                      I.A. NO.120307 Of 2020, I.A. NO.123299 OF 2020
                                                AND I.A. NO. 6397 OF 2021
                                              (IN RE.: LA-RESIDENTIA PROJECT)
                                                               IN
                                         WRIT PETITION (CIVIL)NO. 940 OF 2017


                          BIKRAM CHATTERJI & ORS.                                …PETITIONER(S)


                                                         VERSUS
                          UNION OF INDIA & ORS.                                  …RESPONDENT(S)


                                                            ORDER

Uday Umesh Lalit, J.

1. This Order shall dispose of following three sets of applications: –

A) I.A. No.168186 of 2018 (Z-68), I.A. No.109882 of 2020 (Z-309*

Signature Not Verified
and R-103*) and I.A. No.114865 of 2020 (Z-318*) filed by the
Digitally signed by Dr.
Mukesh Nasa
Date: 2021.06.29
14:02:54 IST
Reason:

 Court Volume Number
2

Association1 and by some applicants who have booked apartments

in the project developed by the Company2.

B) I.A. No.153341 of 2019 (Z-233*), I.A. No.120307 of 2020 (I-155*)

and I.A.No.123299 of 2020 (I-158*) filed by the Company; and

C) I.A.No.6397 of 2021 (Z-342*) filed by Religare Finvest Limited,

the creditor of the Company.

2. By lease deed dated 03.02.2011 executed between Greater Noida

Industrial Development Authority (‘GNIDA’, for short) and the Company,

plot bearing No.GH-06A SECTOR–TECH ZONE-IV, Greater Noida was

permitted to be developed by the Company on certain conditions. It was

specifically stated that the Company was a special purpose company

incorporated by the consortium of following six entities against whose names

the respective shareholding was mentioned. The relevant clauses of the lease

deed were:-

“…The registered consortium consists of following: –

                   S.No.         Name of member           Shareholding      Status

                    1.      M/s. Vidhyashsree Buildcon        26%            Lead
                            Pvt. Ltd.                                       Member

1

Amrapali La Residentia Flat Buyers Association
2
La-Residentia Developers Private Limited
3

2. M/s. Nishant Creations Pvt. 19% Relevant
Ltd. Member

3. M/s. Anjali Buildcon Private 20% Relevant
Limited Member

4. M/s. Agarwal Associates 5% Relevant
(Promoters) Ltd. Member

5. M/s. Elegant Infracon Private 19% Relevant
Limited Member

6. M/s. Stunning Constructions 11%
Private Limited

Whereas the above-registered consortium who jointly qualify for the bid
and secured the allotment of said plot being highest bidder. They
through its lead member M/s. Vidhyashree Buildcon Pvt. Ltd. have
approached the lessor in accordance with clause C-8 of the brochure/bid
document of the scheme to sub-divide the said plot of land with the
following status of holding lease rights:-

 Sl.    Plot No.    Sector   Divided    Name of member      Status
 No.                           area
                                (in
                              Sq.M.)
  1.    GH-06A     Techzone- 80026.62 M/s. La Residentia Special
                      IV              Developers Pvt. Ltd. Purpose
                                      (SPC)                Company
                                         (SPC       of      M/s.
                                         Vidhyashree Buildcon
                                         Pvt. Ltd., M/s. Nishant
                                         Creations Pvt. Ltd.,
                                         M/s. Anjali Buildcon
                                         Private Limited, M/s.
                                         Agarwal      Associates
                                         (Promoters) Ltd. and
                                         M/s.          Stunning
                                         Constructions Private
                                         Limited
  2.    GH-06B     Techzone-    17700    M/s. Elegant Infracon      Relevant
                      IV                 Private Limited            Member


                    …             …              …
                                                                                4

And it has been represented to the lessor that the CONSORTIUM
members have agreed amongst themselves that M/s. Vidhyashree
Buildcon Pvt. Ltd. having its registered office at H.No.195, 2nd Floor,
Back Side, Ram Vihar, Delhi-110092 shall remain lead member of
the consortium and lessee shall solely develop the project on the
demarcated Builders Residential/Group Housing Plot No.GH-06A,
Sector Techzone-IV, Greater Noida measuring an area 80026.62
sqm.”

3. The project to be developed by the Company was widely advertised

through brochures and advertisements as ‘Amrapali La Residentia’ project,

promising delivery of apartments within 36 months. The relevant portion of

the brochure was:-

“Amrapali has transformed the entire concept of living with its
various value added residential projects. Once more living up to its
reputation it is presenting a unique residential condominium which
is identified as Terrace Homes for its novel concept. Terrace Homes
are 2, 3 & 4 Bedroom Apartments with individual terraces assigned
to them. Three side open terrace that is virtually ocean of fresh air
is a star feature of every apartment of this modern and architecturally
improved apartment housing. The terraces are just imitative of the
lush green lawns in private villas and serves as the lungs of the
apartments. This heart of the apartment can be used for multipurpose
household occasions.

Where dedication is redefined
Real Estate and construction have been redefined by Amrapali
Group to such a grand extent that it has become a brand name.
Amrapali Group has successfully proved its forte in varied Real
Estate verticals from Residential Housing solutions to Commercial
edifices to IT parks and educational institutions. In the last couple
of years Amrapali Group has contributed in the phenomenal growth
of real estate and infrastructure industry with many turnkey
solutions. The Group strives for quality and ensures the best of
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technology, planning, design and construction for all of its projects.
This has resulted in star projects like Amrapali Green, Amrapali
Royal, Amrapali Village, Amrapali Awadh, Amrapali Vaishali and
Amrapali Exotica Apartments.”

4. Relying on the promises made in the brochure and believing the

representation that the project was of ‘Amrapali Group’, various interested

parties booked apartments paying booking amount running into several

crores. It appears that 3256 apartments were to be constructed and developed

in three phases; 1408 apartments in the first phase, 996 apartments in the

second phase and 852 apartments in the third phase.

5. Writ Petition (Civil) No.940 of 2017 (Bikram Chatterji and others vs.

Union of India and others) and other connected matters filed in this Court

sought to highlight acts of commission and omission on part of the Amrapali

Group of Companies and persons in charge of the affairs and submitted that

the amounts invested by the apartment holders were siphoned away by the

Amrapali Group of Companies. While entertaining these Writ Petitions, by

Order dated 06.09.20183 this Court directed that 46 companies including the

Company be audited by forensic auditors. Accordingly, the forensic auditors

3
(2020) 16 SCC 375
6

considered various issues and submitted their reports in February and April

2019. With regard to the project ‘Amrapali La-Residentia’, the forensic

auditors noted:-

“La Residentia
A big project having more than 3,200 dwelling units was launched
in 2010-11 having an equity shareholding of 19.75% in the name of
Stunning Construction Pvt. Ltd.

• Stunning Construction Private Limited (‘Stunning’), an
Amrapali Group Company, holds 19.75% shares in the
company. Stunning has been a consortium partner since
beginning and land was allotted by Noida Authorities to the
5 members consortium including Stunning. The project was
launched as an Amrapali group project and was marketed
accordingly. As per the discussion with directors of La
Residentia Developers Private Limited, they broke up with
Amrapali group in 2017. 2017 is the year when writ petition
was filed before the Honorable Supreme Court. It is informed
to us that a marketing agreement was entered into between
La Residentia Developers Private Limited and Amrapali
group (name of the company not known) that Amrapali group
would market its project for a consideration of Rs.16 crore.
It was informed by Mr. Sanjeev Kumar (director of La
Residentia Developers Private Limited and a very old friend
of Mr. Shiv Priya, director, Amrapali group) that though the
agreement was signed but Amrapali group didn’t provide a
copy of the agreement. It proves that Amrapali director were
having significant influence on La Residentia Developers
Private Limited that they had an authority even not to give a
copy of the agreement to a person/entity who has signed it.

• Out of Rs.16 Crore, which were to be paid to Amrapali Group
as per the agreement, Rs.4 crore were paid to Saffron Promart
Consultancy Private Limited, owned and controlled by CFO
Chander Wadhwa) under a verbal instruction of Mr.
Adikhari, GM/DG accounts of Amrapali group. It is to be
7

noted that directors of La Residentia Developers Private
Limited were acting and working under the supervision of
Mr. Adhikari who was a middle level management officer. It
indicates that the project was conceived by Mr. Anil Kumar
Sharma & Mr. Shiv Priya, directors of Amrapali group and
Mr. Sanjeev Kumar, Mr. Mukesh Kumar Roy and Others
were only a front.

• It is very clear that there was no contribution of funds from
the consortium partners. Whatever funds contributed by the
consortium partners were not only withdrawn within a very
short period but over and above that extra funds were given
to them in the name of interest free loans and advances.

• Amrapali group companies have transferred some of their
buyers to the company. We found that the list of unsold
inventory was sent to Mr. Anil Sharma and it was he who
decided that the following buyers from Amrapali group
companies be shifted to La Residentia. This proves that La
Residentia was under the direct control of Mr. Anil Sharma
and Mr. Shiv Priya and is an entity of Amrapali group.

• The company is also using the Brand name/trademark of
Amrapali group on its letterheads.

• The website of the company is following
www.amrapalilaresidentia.com.

• When we open the website of the company, advertisement
page was hiding details and it is a project of Amrapali group.”

It was also observed:-

“As per Statement of Mr. Sanjeev Kumar, Director of La Residentia
Developers Private Limited recorded by us, he informed that a sum
of Rs.4 crores approximately, was paid as fees for use of Amrapali
Brand Name to Saffron Propmart Private Limited (This Company is
controlled by Mr. Chander Wadhwa CFO). No Bills have been
provided by him.

8

Statutory Auditor CA Anil Mittal and Shri Chander Wadhwa CFO
were in connivance with each other and payments were made by Shri
Anil Mittal to Chander Wadhwa CFO for sharing fees received from
Amrapali group for the work awarded to Anil Mittal. Chander
Wadhwa is one of the masterminds along with the other promoters,
directors behind the whole scam. He facilitated movement of funds
by creating a web of companies within and outside the group. His
relatives were made partner investor in LA Residentia and Heartbeat
City Projects. Funds were invested in Patel Advance JV (Neo Town
Project Noida) and Euphoria Sports City.”

6. The aforementioned observations of the forensic auditor were quoted

with approval by this Court in its Judgment dated 23.07.20194.

6.1 It must also be noted here that with respect to another project of

Amrapali Group of Companies namely “Heartbeat City Project”, following

observations were made in the aforesaid Judgment4.

“35. Heartbeat City Developers Private Limited
The project is in the name of 3 companies namely Pebbles Prolease
Private Limited, Three Platinum Softech Private Limited and Baseline
Infradevelopers Private Limited. The Project is an Amrapali group’s
project which was carved out from Amrapali Group of Companies
while case was pending before Honorable Supreme Court. Funds
were invested in the project from Amrapali Group through Mr. Amit
Wadhwa, Mr. Amit Wadhwa was a partner of 25% each in Pebbles
Prolease Private Limited and Three Platinum Softech Private Limited.

Amrapali Group launched and advertised the project as Amrapali
Group project and the project was named as Amrapali Heartbeat City
Developers Private Limited in the agreements. Corporate office was
having the same address as Amrapali Corporate Tower in Sector 62,
Noida. The purpose of carving out the project from Amrapali is not

4
(2019) 19 SCC 161 – at pages 280 and 281
9

known. It is informed that Mr. Vaibhav Jain and Mr. Sankalp Shukla
are the key managerial persons. In the absence of accounting records,
we could not proceed further on the issue.”

6.2 In paragraphs 61 and 62 of said Judgment4 some of the observations

pertaining to La-Residentia, Heartbeat City, Stunning Construction Private

Limited were as under:-

“… … (i). The Directors along with trust partners discreetly divided
the projects into two parts:

(i) Projects in which home buyers funds were
received and funds were diverted from these
projects;

(ii) Projects to which home funds were diverted.

These projects were subsequently
separated/demerged from Amrapali Group, e.g.,
Heartbeat City, La Residentia, Vinayaka
Square.

(j). Several dummy companies were formed in the names of office
boys and peons. Technically, the allotments at the initial stage were
void ab-initio. The amount received by the Companies from home-
buyers was more than the amount spent on construction and for
payment of the land. The sole objective of taking a loan was to divert
the funds to other ventures to create assets in the name of family
members and to make movies. Villas were bought at tourist
destination for fun at the expenses of the middle class and low-
income group people.

(k). Several companies were created solely for the purpose of
routing funds. These companies did not have any material
transaction as per the main object for which they were incorporated
and did not have a business since their incorporation.

10

62. As is apparent from the report, several companies were created
only to route the funds and transactions consisting of office boys,
persons with no income and dummy companies in which family
members and relatives were inducted as members only for few
transactions, which are as under:

(1) Jhamb Finance & Leasing Private Limited.
It was under the control of Mr. Chander Wadhwa, CFO. It
has advanced loans amounting to Rs.875 crores to related
and unrelated entities, which are recoverable.

(2) Gaurisuta Infrastructure Private Limited
It was also created for diverted funds.

(3) Neelkanth Buildcraft Private Limited
Similarly it was formed for the purpose of buying shares
from J.P. Morgan at exorbitant rates, consisiting of office
boys and relatives of Mr. Anil Mittal, Statutory Auditor.

(4) Stunning Construction Private Limited
As per findings of the Forensic Auditors, they should
either surrender 19.75 percent of land or 632 flats.”

6.3 The observations in paragraph 153 and some of the conclusions in

paragraph 154 were:

“153. We have also found that non-payment of dues
of the Noida and Greater Noida Authorities and the
banks cannot come in the way of occupation of flats by
home buyers as money of home buyers has been
diverted due to the inaction of Officials of Noida/
Greater Noida Authorities. They cannot sell the
buildings or demolish them nor can enforce the charge
11

against homebuyers/ leased land/ projects in the facts
of the case. Similarly, the banks cannot recover money
from projects as it has not been invested in projects.

Homebuyers money has been diverted fraudulently,
thus, fraud cannot be perpetuated against them by
selling the flats and depriving them of hard-earned
money and savings of entire life. They cannot be
cheated once over again by sale of the projects raised
by their funds. The Noida and Greater Noida
Authorities have to issue the Completion/ Part
Completion Certificate, as the case may be, to execute
tripartite agreement and registered deeds in favour of
the buyers on part-completion or completion of the
buildings, as the case may be or where the inhabitants
are residing, within a period of one month.

154. Resultantly, we order as follows:

(i) The registration of Amrapali Group of Companies
under RERA shall stand cancelled;

(ii) The various lease deeds granted in favour of
Amrapali Group of Companies by Noida and Greater
Noida Authorities for projects in question stand
cancelled and rights henceforth, to vest in Court
Receiver;

(iii) We hold that Noida and Greater Noida
Authorities shall have no right to sell the flats of the
home buyers or the land leased out for the realization
of their dues. Their dues shall have to be recovered
from the sale of other properties which have been
attached. The direction holds good for the recovery of
the dues of the various Banks also.

(iv) We have appointed the NBCC to complete the
various projects and hand over the possession to the
buyers. The percentage of commission of NBCC is
fixed at 8 percent. … …”
12

7. Thus, the project ‘Amrapali La Residentia’ was found to be coming in

the second category where the funds of the home buyers were diverted and

where the projects were subsequently separated from the Amrapali group. It

was also found that ‘Stunning Construction Private Limited’ (“Stunning” for

short), one of the members of the consortium which had set up the Company

as a special purpose company, was part of the Amrapali Group.

Commensurate with the shareholding of ‘Stunning’ in the Company, the

direction was issued by this Court that either 19.75 per cent of the land or 632

flats constituting about 19.40 per cent of the total number of flats be

surrendered by the Company; as that would be equivalent to the contribution

of flat buyers which was diverted.

8. In the subsequent order dated 14.10.2019 passed by this Court, the

objections raised on behalf of the Company were noted and it was observed:-

“We have heard Mr. Rakesh Khanna, learned senior
counsel appearing for La Residentia. The finding
recorded in the Judgment delivered by this Court that
632 flats or value of 19.75 per cent of the share has to
be recovered from La Residentia. It is also pointed out
that some cost of construction has been incurred by the
La Residentia. While handing over the flats or for
selling them that amount has to be paid to La
Residentia and the remaining amount has to come to
the Amrapali Group. We direct the La Residentia to
13

submit an affidavit how much expenditure has been
undertaken in the construction of each of the flat and
total amount invested in the construction of 600 flats
which are available for sale at present. They are
injuncted from selling flats which are available. Let
the affidavit be filed within fifteen days.”

9. The present sets of applications are required to be considered in the

backdrop of the aforesaid orders passed by this Court on 23.07.2019 and

14.10.2019.

Pertinently, when said orders were passed, an application submitted by

45 applicants being I.A. No. 168186 of 2018 (Z-68*) was already on record

of this Court. This application was filed on 19.11.2018 and after referring to

the brochures circulated and advertised by the Company, the application had

asserted that the flat buyers had booked their apartments believing their

project to be Amrapali group project. It was stated:-

“6. It is of lot of significance to state that the Coloured
Brochure bears the caption “Amrapali La-Residentia”
and that the project is not only designed and propagated
by Amrapali Group but also bears the reference of all
other Amrapali Group Projects which include
“Amrapali Eden Park”, “Amrapali Leisure Valley”,
“Amrapali Sapphire” and “Amrapali Centurion Park”.
Further the Allotment-cum-Flat Buyer’s Agreement
bears the registered address too at Amrapali Corporate
Tower C-56/40, Sector-62 NOIDA, which is the
corporate office of the Amrapali Group. The Demand
Letters to the Home Buyers from time to time have also
14

been issued and the name and bears the logo of
“Amrapali La-Residentia” and further the payment
receipts have also been issued under the same logo and
head of Amrapali. Moreover, the website also indicates
that it is a Amrapali Project as the web is titled as
www.amrapali.in.”

The application had principally prayed:-

“……

(b) pass appropriate order or direction directing
delivery of the dream homes of the Applicants in
Amrapali La-Residentia situated at GH-06A, Tech
Zone-4, Noida Extension at the earliest;

(c) pass appropriate order fixing liabilities of the
Directors of M/s. La-Residentia Developers Pvt. Ltd.
for delaying the project;

(d) pass appropriate order to attach the movable/
immovable properties and bank accounts of M/s. La-

Residentia Developers Pvt. Ltd. as well as its all
Directors………”

However, the prayers made in this application were not granted

by this Court either in its order dated 23.07.2019 or in the order dated

14.10.2019.

10. On or about 01.10.2019, IA No.153341 of 2019 (Z-233*) was filed by

the Company submitting that though Stunning had 19.75 per cent

shareholding in the Company, the Company had always maintained an
15

independent legal existence and there was no direct or indirect financial

dependence on the Amrapali Group. As regards the arrangements entered into

with the Amrapali Group, it was stated:

“The Applicant has not received any money from any
group company of the Amrapali Group, save and
except paid up capital of Rs. 13,580/- (Rupees Thirteen
Thousand Five Hundred and Eighty Only) in the nature
of contribution towards paid-up capital, received from
Stunning. The said amount was received against issue
of 13.85% shares in the Applicant company at the time
of its inception. It is pertinent to state that even though
Stunning is Amrapali Group company, there has been
no inflow of funds from Stunning into the Applicant
company other than the above-said amount received by
the Applicant against subscription of shares.

The Applicant company had entered into a marketing
arrangement with Amrapali Group where it was agreed
between the parties that Applicant company would be
allowed to use the name ‘Amrapali’ for marketing the
Project. The brand ‘Amrapali’ at such time was well
established in the real estate sector and since the
Applicant was a new entrant in the business of real
estate development, management of the Applicant
company was of the opinion that the Project would
benefit, from marketing/branding perspective, if the
name ‘Amrapali’ could be used for marketing/branding
the Project.

In light of above, for allowing the use of name
Amrapali and extending branding/marketing support,
the Applicant company had agreed to pay to Amrapali
Group Rs.75/- per sq. ft. booked/sold in the Project, as
consideration.”
16

The basic submissions in the application were:

“It is known to the Forensic Auditor that the Applicant
is a Private limited company and Stunning being a
shareholder, is only entitled to profits of Applicant
company (if any) in form of distributable dividend,
which would be proportionate to it shareholding in the
Applicant company. Profits as such, by way of cash or
otherwise, cannot be legally distributed amongst the
shareholder.

Accordingly, Stunning as a shareholder would only be
eligible to 19.75% share in distributable dividend
declared by the Applicant company after profits (if
any), which are determined at the end of the Project.

Indulgence of this Hon’ble Court is also necessary to
validate the fact that the Project land cannot be
apportioned/segregated to the extent of 19.75% at this
stage of the Project.

The Applicant would like to state that the rationale
applied to arrive at 632 flats is not just and proper and
if the Applicant was to comply to direction to surrender
632 flats, the number of flats would vary for the same
should be arrived at, if at all, after apportioning 19.75%
of the total built up space. The flats forming part of
unsold inventory may not confirm to the 19.75% of the
total built up space.

Even otherwise, this should be subject to settlement of
accounts between Applicant and Amrapali Group,
wherein the Applicant is to receive amounts from
Amrapali Group.

Also, it is submitted that 632 flats of unsold inventory
are under various stages of construction and are
situated in different towers within the Project. While
some form part of the inventory which is ready for
handover, some are under construction and some are
17

yet to be constructed. Accordingly, for material and
actual handover of these 632 flats, complete in all
respects, it is necessary to maintain continuity in
construction through regular flow of funds, which will
come from sale of this unsold inventory. Further, so as
to facilitate overall development of the Project and
handover of the units to homebuyers, it is imperative
that these flats be sold and the amounts received from
such sale be first utilized for construction and
completion of the Project.

The only viable option for the Applicant could be to
offer 19.75% in profits and loss of the Applicant
company (arrived at the stage of Project completion).”

Finally, the application prayed that the order dated 23.07.2019 passed

by this Court be recalled or in the alternative the Company be directed to

deposit 19.75 per cent of the projected profits after making due adjustments

in respect of cost of construction and proportionate costs towards the

development of the entire project and other amounts receivable from the

Amrapali Group.

10.1 Similar submissions were thereafter made by the Company in IA

No.120307 of 2020 (I-155*), filed on 11.11.2020 and in IA No.123299 of

2020 (I-158*) filed on 25.11.2020. In both these applications, it was

submitted that the Company be allowed to raise funds through sale of 632

flats, without which it would not be possible for the Company to raise finances
18

and complete the project. In addition, certain directions which according to

the Company were necessary to be passed for overall completion of the

project, were also prayed for. It was submitted:

“56. That in addition to passing necessary directions to
allow the Applicant to raise funds through sale of
unsold inventory and also raise finance through
bank/financial institution, the Applicant would request
for kind intervention of this Hon’ble Court to consider
passing necessary directions, as under, which would be
critical in intervening circumstances, and beneficial for
overall completion of the Project:

A. To begin with, this Hon’ble Court may direct the
receiver appointed by this Hon’ble Court to set up,
operate and be in-charge of an escrow account wherein
all receivables to the account of Applicant company are
deposited, whether received from sold and/or unsold
inventory, in addition to funds receivable other sources
(such as fresh finance raised from banks/financial
institutions).

B. Further, since during the pendency of present
proceedings validity of statutory approvals issued by
the GNIDA has lapsed. A copy of the last validated
sanction plan, which expired during November 2019,
has been annexed herewith and marked as Annexure L.
To facilitate overall completion of the Project,
intervention of this Hon’ble Court is necessary to issue
necessary directions to GNIDA to extend validity of
such license/permission till anticipated date of
completion of the Project i.e., December 2022.

C. Similarly, the proposed date of completion of the
Project under RERA registration has lapsed as of
15.06.2019. A copy of the RERA registration has been
annexed herewith and marked as Annexure M. To
facilitate overall completion of the Project,
19

intervention of this Hon’ble Court is necessary to issue
necessary directions to UP RERA to extend validity of
such license/permission till anticipated date of
completion of the Project i.e., December 2022.

D. Intervention of this Hon’ble Court is also required
in as much as to issue appropriate directions to the UP
RERA Authority to recall its orders, not take any
coercive measures against the applicant and refrain
from passing any such orders till the disposal of the
present proceedings before this Hon’ble Court.

E. In addition to foregoing, it is also imperative that
directions are issued to the relevant authorities like
GNIDA, UP RERA etc. not issue adverse
rulings/orders/impositions against the Applicant
company till anticipated date of completion of the
Project i.e., December 2022.

F. It is necessary that GNIDA be directed to
revalidate statement of land dues after causing
reduction in the penal interest levied on land dues over
last so many years. The Applicant considers itself
eligible for such respite since similar benefit has been
extended by this Hon’ble Court to other
projects/developers as well. The Applicant also
considers itself to be eligible for such relaxation since
the case of Applicant company is much different from
other projects of Amrapali Group where GNIDA has
not been paid any amount after the initial 10% payment
for the project land paid at the time of allotment. The
Applicant is all the more eligible for such
rebate/relaxation for the reason that the Applicant
company has repaid more than the principal amount
that it originally owed to GNIDA as land dues. The
amount being claimed by GNIDA as on date is highly
inflated, as already elaborated upon in the present
application.

G. It is further submitted that GNIDA be directed to
continue registering sub-lease deeds in the name of
20

home buyers as GNIDA has paused further
registrations on account of non-payment of land dues
by the Applicant. Since land dues payable to GNIDA
would require revalidation due to undue imposition of
interest (as per directions of this Hon’ble Court), it
becomes necessary registration of sale continues in
favour of homebuyers of the Project, who should not
be made to suffer on this account. The Applicant seeks
necessary directions in this regard since the position of
Applicant before GNIDA is’ not, in any way, similar
to other allottees/projects/developers who are before
this Hon’ble Court.

H. Intervention of this Hon’ble Court is also required
particularly to the issue of other impositions made by
the GNIDA on land dues payable by GNIDA. Other
than the extending relaxation on penal interest imposed
by the GNIDA, the GNIDA should also be issued
necessary directions to withdraw certain undue
impositions upon the Applicant company. Many such
undue and arbitrary impositions in the name of land
dues, are the reason for Applicant company being a
defaulter before GNIDA despite having paid more than
the principle amount originally payable to GNIDA.

In this regard, it is most important to note that the
Project in question remained adversely affected
between July 2011 till May 2015, for reasons which
were directly attributable to GNIDA and absolutely
beyond the control of the Applicant company.

The issues which hampered the Project during such
period included the issue of cancellation of land
allotment, farmer protests and agitation on land
acquisition by GNIDA/UP State Government, issue’
regarding payment of enhanced compensation to the
farmers, and other related legal issues.

These issues practically detailed the progress of the
Project on more than one occasion and consequently
penal obligations were forcefully imposed by GNIDA
21

upon the Applicant company for such period of
disruption, rather than adequately compensating the
Applicant company for stoppage of construction at the
Project, for causes which were directly attributable to
GNIDA.

At such time, even the burden of payment of enhanced
compensation payable to farmers to end the dispute
between farmers and GNIDA/State Government in
respect of land acquisition, was conveniently passed
onto allottees of project land like the Applicant
company, which was neither anticipated nor accounted
for by the Applicant company.

With respect to this issue, the Applicant company had
filed a representation before the GNIDA and
subsequently, Applicant company had to move a Writ
Petition before the Hon’ble High Court of Uttar
Pradesh at Allahabad, for claiming benefits under the
‘Zero Period Policy’. However, for lack of action on
part of GNIDA, no benefit has been extended to the
Applicant company on this account till date, by the
GNIDA.

It is therefore necessary that such benefit is now
extended to the Applicant company, firstly for the
reason that such benefit is long due to come from
GNIDA who has been avoiding to settle this issue with
Applicant company, and also for the reason that in
absence of such relaxation/respite/adjustment from
GNIDA, the Project is unlikely to be net positive at the
time of its completion.

1. Further, necessary directions are required for the
homebuyers who should be directed to strictly pay their
dues regularly. The ongoing state of affairs has resulted
in homebuyers withholding release of their dues to the
Applicant company, such inflow of funds being critical
and necessary for overall completion of the Project. It
is a matter of record that such non-payment has had a
22

direct impact on flow of funds and pace of construction
of the Project.

J. That another aspect, which if given due
consideration, may lead to better profitability in the
Project is in respect of loan facility availed by the
Applicant Company from Religare (NBFC). The
Applicant Company has already repaid an Amount of
Rs. 52,61,51,242/- as against principle loan amount of
Rs. 50,00,00,000/. The situation as on date is such that
the said financial institution in created lien over bank
account of the Applicant Company so as to recover
loan repayment (which as on date stands at Rs.
15,29,61,019/- as per demand of Religare), which has
also led to immobilization of funds for utilization
towards completion of Project.”

10.2 IA No.123299 of 2020 referred to the arrangements arrived at by the

Company and the association of Home Buyers as under:-

“38. It is also relevant to highlight here that before any
homebuyer or association of homebuyers approached
this Hon’ble Court with intent to deliver the project and
in relation to management of funds and bring
transparency and objectivity necessary to inspire
confidence of homebuyers with respect to fairness and
effective management of affairs of applicant company
qua the project, the Applicant company entered into
several MOU’s with representatives/ core committees
of flat buyers of various towers. As per the said MOU’s
the home buyers have committed to contribute their
dues to a designated bank account bearing
no.510101004328980 being maintained by the
applicant company with the Corporation Bank,
Ramprastha, Ghaziabad, UP (for tower 20, 24, 25), in
bank account bearing No.510341000674084 (for tower
28 and 29) and 510341000674092 (for tower 22) being
maintained by the applicant company with the
23

Corporation Bank, Sector 62, NOIDA, UP. The
designated representatives of allottees/ homebuyers are
joint signatories in the bank accounts, which further
enables the homebuyers to keep a strict check on the
source of funds and utilisation of such funds towards
construction of the project. Copy of the Memorandum
of Understanding entered into between the Applicant
company and the homebuyers has been enclosed
herewith and marked as Annexure P-4.

39. That for the foregoing paragraph, it is imperative to
mention here that the homebuyers who have entered
into MOU’s with the respondent company have
contributed to a sum of Rs.3,04,66,795/-. Likewise, if
all the allottees of the project come forward and gather
resources with the respondent company, the
construction status shall have a significant boost. The
summary with details of funds received in such
designated bank accounts and amounts spent on
construction and related activities in terms of the said
MOU’s, computation of the figure of Rs.3,04,66,795/-
(1,63,74,372/- + 1,40,92,423/-) which have been
deposited by the homebuyers after entering into
MOU’s is annexed herewith as Annexure-P/5.”

11. On the other hand, IA No.109882 of 2020 (Z-309*) was filed by the

Association submitting that “Amrapali La Residentia Project” was in every

sense a project of the Amrapali Group of Companies and, therefore, the flat

buyers were entitled to similar protection as was extended to the other home

buyers vide order dated 23.07.2019 passed by this Court. In the additional

affidavit filed on 16.11.2020 (R-103*), the Association also asserted that as

many as three members of the consortium including Stunning were Amrapali
24

Group of Companies and between themselves they were holding more than

65 per cent of the share capital in the Company. The details in the form of a

Chart given in the additional affidavit were:-

 “
     S.  Company       Directors    Shareholding Comments
     No. Name                       in Project
     1   M/s         i. Pankaj Jain Lead member Held         to      be
         Vidhya      ii. Vaibhav    26%            Amrapali      Group
         Shree       Jain                          [Pages 40, 97, 169
         Buildcon    iii. Naresh                   of     23.07.2019]
         Pvt. Ltd.   Chand Jain                    [Pages 3, 16, 21, 22
                                                   of 28.07.2020]
     2    Anjali     i. Mukesh      20%            Held to be front of
          Buildcon   Kumar Roy                     Amrapali [Pages
          Pvt.       ii. Sanjeev                   40,99,    118     of
          Ltd.       Kumar                         23.07.2019]
     3    Stunning   i. Amit Vikram 11%-           Held      to      be
          Constructi ii. Amresh     (Amrapali)     Amrapali      Group
          ons Pvt. Kumar                           Co.,
          Ltd.       iii. Suvash    *19.75%-       [Pages 21, 41, 188-
                     Chandra        according to 119 of 23.07.2019]
                     Kumar          FA      Report
                                    and the Main
                                    Judgment
                                    dated
                                    23.07.2019
     4    Nishant    i. Sushma      19%            Also Directors of
          Creations  Bajaj                         Amrapali      Group
          Pvt. Ltd.  ii. Kulbhushan                [Page      40     of
                     Rai Bajaj                     23.07.2019]
                     iii. Nishant
                     Bajaj
     5    Agarwal    i. Harkishan   5%             [Taken over by
          Associates Kumar                         Stunning]
          (Promoters ii. Aaditya
          Ltd.)      Agarwal
                                                                                25

                       iii. Ashish
                       Agarwal
    6     Elegant      i. Uma         19%                  Sb-Lessee       of
          Infracton    Agarwal                             Amrapali
          Pvt. Ltd.    ii Abhay                            Centurian [Page 40
                       Kumar                               of 23.07.2019]
                       iii Amit Kumar
                       Sharma
                                                                                ’’

The affidavit also gave the status of construction with regard to

each of the three phases as under:

“Furthermore, the chart reveals that out of the total
3256 units to be provided by the Developer, out of
which 632 units are offered by the Developer towards
19.75% of Amrapali group. However, out of the
proposed 632 units, the developer is handing over 181
units from Phase II which is 70% complete and 415
units are being offered from Phase III which is a
camouflage as only 40% of the same is completed
according to the developer. It is submitted that Phase
III is not even anywhere near 40% completion and is
actually deserted with the competition activity of both
Phase II and III are at a standstill and the Developer has
siphoned off all the monies collected by the home
buyers and washed off his hands from the construction
activity. The builder has totally failed and buyers have
totally lost faith and builder in past 10 years was able
to complete only approx. 30% of works in total
project.”

11.1 One more application being IA No.114865 of 2020 (Z-318*) was filed

on 15.11.2020 by 14 applicants. This application referred to the

communication dated 18.01.2020 addressed by the Company to all the flat
26

buyers of “Amrapali La Residentia” Project. The text of said communication

was as under:

“As you are aware of the ongoing Supreme Court on
Amrapali, the Honourable Court has imposed certain
restrictions on us (La Residentia Developers Private
Limited). As per the injunction we have to surrender
632 flats to the Honourable Court, we are also not
allowed to sell any new inventory, which has led to an
extreme crunch in operational funds required to
complete your flat. As a result of this ongoing case we
are unable to raise funds from market either due to lack
of trustworthiness.”

The applicants then submitted:-

“5. That the above statement has put the applicants in
a serious quandary and they are faced with a peculiar
problem inasmuch as to say that vide its judgment
dated 23.07.2019 in Bikram Chatterjee and Ors. vs.
Union of India and Ors. (Writ Petition No.940 of
2017), the Hon’ble Court has arrived at a finding that
it is Amrapali that has ownership of 19.75% of the
share in the properties being built and developed by La
Residentia, numbering a total of 632 flats. However,
there is a great deal of uncertainty and a complete lack
of clarity with respect to the remaining 80.25% of the
flats/ apartments that are part of Amrapali La
Residentia and a responsibility of the Respondent-
builder. However, the Respondent-builder is
conveniently trying to hide under the garb of and claim
the cover of the Hon’ble Court’s judgment to wash its
hands off the future of 80% of the home buyers who
have also spent all their life savings and taken huge
loans to invest in the apartments that were proposed to
be built. Such homeowners as the Applicants are
totally stranded and are faced with complete
27

uncertainty with regard to the future of their homes that
were being developed by the Respondent-builder.

… … …

11. That the Applicants fear that as bonafide
purchasers/ home buyers whose property does not fall
in the 19.75% of the share in the entire La Residentia
Project, they are likely to be short-shifted as the burden
upon the NBCC is colossal and it is likely that projects
that have a 100 per cent involvement of Amrapali are
likely to get the first preference unless a proper orders
are passed by this Hon’ble Court. The promoters role,
scope, responsibility, liability etc. need to be fixed as
they say that 632 flats are dispersed in all the three
Phases of the project and unless proper directions be
issued by the Hon’ble Court the home buyers are put in
severe inconveniences without a room over their head.

                               …      …     …

         15. ….

r. It is further submitted that the 632 units in La
Residentia surrendered to the Amrapali group are
incomplete and scattered in various towers, on
different floors many of which are not even completed.
The situation is used by the builder to stall the progress
of the construction citing the injunction orders of this
Hon’ble Court.”

12. Lastly, IA No.6397 of 2021 was filed on 13.01.2021 by Religare

Finvest Ltd. stating that said applicant had extended financial accommodation

to the Company and that the Company had mortgaged the project land and

939 flats/units with the applicant and therefore the interest of the applicant be

protected.

28

13. Since reference was made to the order dated 28.07.2020 passed by this

Court, the observations concerning Vidhya Shree Buildcon Pvt. Ltd. and those

dealing with “Heartbeat City” another project of the second category5 are

extracted here for ready reference:-

“1. We have heard the Forensic Auditor as well as the
learned counsel appearing for the parties at length. The
first question arises whether the Heartbeat City
Projects are of Amrapali Group, and the second
question is as to the agreement entered into by M/s.
Mahagun Real Estate Private Limited with M/s.
Baseline Infradevelopers Private Limited.

2. It is apparent that Heartbeat City Projects were
launched in the name of the ‘Amrapali Heartbeat’
project in 2011-2012 with Mr. M. S. Dhoni, the Brand
Ambassador. The Home Buyers’ agreement was
entered into in the name style of Amrapali Group with
the assurance that flats will be delivered within 36
months. Most of the buyers paid their dues on time, but
the construction was delayed.

3. Heartbeat City Projects comprise Heartbeat City 1
(for short, HBC 1) and Heartbeat City 2 (for short,
HBC 2) and Hanging Gardens in Noida. 2 The land for
the respective projects was allotted in the name of
Three Platinum Softech Private Limited, Pebbles
Prolease Private Limited, and Baseline Infradevelopers
Private Limited. The projects were launched and
advertised in the name of the Amrapali Group. Phase 3
project was started in 2011-2012 in the name of
Hanging Garden; however, later on, Hanging Garden
project was scrapped, and the home buyers were

5
Ref: paragraph 61 of the order dated 23.07.2019
29

admittedly shifted to HBC 1 and HBC 2 or refunded
the amount.

4. HBC 1 comprises 759 units, and HBC 2 consists of
1217 units + shops, but construction could not progress
for one reason or the other.

5. In the Audit Report, it has been found that the land
in Baseline was part and parcel of HBC 1 and HBC 2
projects and in general, under the control of the
Directors of HBC 1 and HBC 2 and was purchased
from the funds of the customers of HBC 1 and HBC 2
and, is an integral part of HBC 1 and HBC 2 and,
therefore, customers of HBC 1 and HBC 2 have the
first and the full right over the land rights and on the
proceeds to be received from the sale of the land can
be utilised for the construction of HBC 1 and HBC 2
projects. HBC 1 has nine towers and 785 units, of
which, 675 units were sold and Rs. 147 crores
recoverable from sold units. HBC 2 has 12 towers and
1282 units, out of which, 936 units were sold and Rs.
301 crores recoverable from sold units. The cost to
complete HBC 1 is approximately Rs. 167.19 crores
and HBC 2 is Rs. 375.64 crores, which is recoverable
from unsold units.

6. Mr. Amit Wadhwa, Director of Amrapali Homes,
has 25% shareholding. Mr. Akhil Kumar Surekha, who
is the Director of Bihariji 3 Ispat Udyog Ltd. and JST
Engineering Services Limited, has 13% and 12%
shareholding respectively, total 25%. Mr. Vaibhav Jain
and Mr. Pankaj Jain, Directors, are holding 10% and
15%, total 25% of the shareholding, whereas Cozi
Habitat Builders Private Limited, Maa Sharda Holding
Private Limited, through its Director Mr. Sankalp
Shukla is also holding 25% shares. Similarly, in HBC
Phase II, the shareholding pattern is similar to 25% of
the group mentioned above of Mr. Amit Wadhwa, Mr.
Akhil Kumar Surekha Vaibhav Jain, Mr. Pankaj Jain,
and Mr. Sankalp Shukla.

30

7. In Baseline Infradevelopers Pvt. Ltd., it is stated that
shareholding of Mr. Amresh Kumar is 8.25%, Bihariji
Ispat Udyog Limited through Mr. Akhil Kumar
Surekha is 8.25%, B2C Realtors Pvt. Ltd. through Mr.
Vaibhav Jain and Ms. Swati Jain is 8.25%, Cozy
Habitat Builders Pvt. Ltd. through Mr. Sankalp Shukla
is 8.25%. Mr. Nishant Choubey and Mr. Santosh
Choubey are holding 34% and 33% respectively. Mr.
Nishant Choubey and Mr. Santosh Choubey did not
provide documents to the Forensic Auditors; however,
they possess 67% shares.

8. The following findings were recorded concerning
Heartbeat City in our Judgment and Order dated
23.7.2019:-

“35. Heartbeat City Developers Private
Limited – The project is in the name of 3
companies namely Pebbles Prolease Private
Limited, Three Platinum Softech Private Limited
and Baseline Infradevelopers Private Limited.
The project is an Amrapali group’s project which
was carved out from Amrapali Group of
companies while case was pending before
Honorable Supreme Court. Funds were invested
in the project from Amrapali Group through Mr.
Amit Wadhwa, Mr. Amit Wadhwa was a partner
of 25% each in Pebbles Prolease Private Limited
and Three Platinum Softech Private Limited.
Amrapali Group launched and advertised the
project as Amrapali Group project and the project
was named as Amrapali Heartbeat City
Developers Private Limited in the agreements.
Corporate office was having the same address as
Amrapali Corporate Tower in Sector 62, Noida.
The purpose of carving out the project from
Amrapali is not known. It is informed that Mr.
Vaibhav Jain and Mr. Sankalp Shukla are the key
managerial persons. In the absence of accounting
records we could not proceed further on the
issue.”
31

9. Mr. Vaibhav Jain admittedly was the architect of
Amrapali Group who was holding 25% shares. Mr.
Akhil Kumar Surekha was also holding 25% shares in
each of the projects.

… … …

14. With respect to Vidhya Shree Buildcon Private
Limited, Rs.4,00,00,000/- (Rupees Four Crores) is the
debit balance in the books of accounts of the Amrapali
Group.

15. It is apparent that a sum of Rs.242.38 crores was
handed over to Mr. Pankaj Jain (current Director of
Amrapali Group & brother of Mr. Vaibhav Jain), the
Director of Vidhya Shree Buildcon Pvt. Ltd.

… … …

18. The project was launched in the name of Amrapali
Heartbeat City, and the agreement was entered into
with the Amrapali Group by the home buyers. Cheques
were issued in the name of Amrapali Heartbeat City.
Letterheads of Amrapali were used for the Builder-
Buyer Agreement, and the project was mentioned as
Amrapali Heartbeat City. It is true canvass to suggest
that the project was an independent project. We are
unable to accept the aforesaid findings recorded in the
Report of the Forensic Auditors. Probably, it was due
to the fact that certain accounts were not made
available, however, in view of the findings recorded
earlier with respect to relationship and inter se
transactions of the groups and parties, there is no iota
of doubt that HBC 1 and HBC 2 are to be treated as the
projects of Amrapali Group only and not independent
projects. As per the finding, the land was agreed to be
sold by Baseline as per the findings recorded in the
Forensic Auditors’ Report itself. The same is out of the
money generated by HBC 1, and HBC 2 projects and
Baseline Infradevelopers Pvt. Ltd. is part and parcel of
HBC 1, and HBC 2 projects and the buyers have the
32

rights over the land and on the proceeds to be received
from the sale of the land. We accept the said finding
recorded in the Forensic Auditors Report.”

14. We heard Mr. Gopal Sankaranarayanan, learned Senior Advocate for

the Association, Mr. M.L. Lahoty and Mr. Manoj V. George, learned

Advocates for the applicants in the first set of applications; Mr. V. Giri,

learned Senior Advocate for the Company in the second set of applications;

and Mr. Janendra Kumar Chumbak, learned Advocate for the applicant in the

third set.

15. It was submitted by Mr. Gopal Sankaranarayanan, learned Senior

Advocate:-

a) The shareholding pattern in the tabular chart in I.A. No. 109882 of

2020 (Z-309*) disclosed that the Company was one of the Amrapali Group

of Companies.

b) Consequently, the entire project land would be part of the assets of

Amrapali Group of Companies rather than restricting the share of

Amrapali Group of Companies to the extent of 19.75%.

33

c) If the benefit as granted in the order dated 23.07.2019 was extended,

all the flat buyers would stand relieved substantially as the dues of GNIDA

would stand reduced to a considerable extent in terms of the order dated

23.07.2019.

d) The entire project ought to be directly under the control of the Court

Receiver and the construction be undertaken through the NBCC6 as was

directed to be done in the other projects of the Amrapali Companies.

Mr. M. L. Lahoty, learned Advocate appearing for the applicants

supported the submissions advanced by Mr. Gopal Sankaranarayanan, learned

Senior Advocate. He invited our attention to the reports of the forensic

auditors and so also to the order dated 28.07.2020 passed by this Court in the

matter concerning “Heartbeat City”. It was submitted that the instant project

and “Heartbeat City” Project stood on the same parameters and therefore

similar benefits be extended to the instant project.

Mr. Manoj V. George, learned Advocate appearing for the applicants

in I.A. No.114865 of 2020 (Z-318*) highlighted the predicament faced by the

6
NBCC (India) Limited, formerly National Buildings Construction Corporation Limited
34

applicants and particularly the stand taken by the Company in its

communication dated 18.01.2020.

16. Mr. V. Giri, learned Senior Advocate for the Company submitted:-

a) Stunning was merely a shareholder in the Company and that by

itself would not make the Company a part of the Amrapali Group

of Companies.

b) Beyond the amounts put in towards share capital, nothing was

invested by the Amrapali Group of Companies; nor any part of

money belonging to the flat buyers of Amrapali Group of

Companies was used or utilized in the instant project.

c) Though the Company was not a part of Amrapali Group of

Companies, the benefit in terms of order dated 23.07.2019 ought

however be extended as indicated in I.A. No.120307 of 2020 (I-

155*) and I.A.No.123299 of 2020 (I-158*).

16.1 In the written note filed on behalf of the Company, following

assertions were made with respect to the construction status and the escalation

in costs if the project was to be handed over to the NBCC as prayed for by the

Association and the applicants :-

35

“5. CONSTRUCTION STATUS
a. Unit-wise construction status of the project:
Please refer: Para 35 @ Pg. 26-27 of I-158;

 Total Flats in Project                             3256
 Total Flats sold                                   2642
 Flats constructed                                  1484
 Flats delivered                                    1143
 Occupancy Certificate received                     872
 Occupancy Certificate applied for                  612
 Sub-Lease Deeds Registered                         658
 Unsold Inventory (comprising of 614                632

unsold flats and 18 cancelled allotments)

*It is to be noted that a sum of Rs. 145 Cr. Approx.
of the current homebuyers is stuck in the unsold
inventory.

b. Phase-wise status of project: Please refer: Para
34 @ Pg. 25-26 of I-158

i. Phase-I (Comprising of 18 towers; T1- T-18,
1408 Flats): 1127 Flats/units complete in all respects
have been delivered to the homebuyers and balance
inventory of 313 Flats/units are at the final stage of
‘finishing’ work.

ii. Phase-II (Comprising 11 towers, T-19 to T-29,
996 Flats): All Flats that comprise of Phase-II
inventory are also at the initial stage of ‘finishing’ work
and delivery of units has started. Handing over of the
units in Phase II of the project has also started. It is
also relevant to state here that handing over of units has
also started in Tower-22 in which the unit of Ms. Savita
Tyagi is also situate, who is also an applicant in one of
the applications on behalf of the homebuyers.

36

iii. Phase-III (Comprising 10 towers; T-30 to T-39
with about 852 Flats): Structuring work for 704 units
out of 852 units in ten towers (Tower 30 to 39) has been
completed and ‘slab work; for about 37 stories/floors
in these ten towers is yet to be casted.”

“6. COST ESCALATION IN CASE THE
PROJECT HANDED OVER TO NBCC OR
THIRD PARTY: Please refer: Para 12 at Pg. 6-7 of
I-155

Certain homebuyers have been seeking directions from
this Hon’ble court to get the project handed over to a
third party or NBCC for completion of construction.
However, for the reasons stated herein below, the same
ought not to be done:

a. The per square foot construction cost that LA
RESIDENTIA has incurred till date works out to be
Rs.1657/- which included the interest on money
infused and admin expenses. Only land cost is separate
from this.

b. The per square foot costing that NBCC or any
third-party contractor may apply would not be less that
Rs.2,550/- per sq. ft. along with 8% consultation
charges of NBCC and interest of 12% on capital
infused.

c. The sale price of the unsold units has been taken at
Rs.2852 per sq. feet. The amount thus available from
sold and unsold inventory plus amount recoverable
would be Rs. 354 Crores.

d. Introduction of a third party at this stage will not
only increase the timeline of the project, but also
escalate the cost of completion of the project by at least
40-45%.”
37

“The effect if the construction is complete by La
Residentia Developers would be:

– The construction of the project would be
completed in a fixed period of time

– The dues of GNIDA will be paid

– The bank dues shall be paid

– Pending dues of suppliers and contractors would
be cleared.

– There would be money available in the kitty.

In case construction is carried out by NBCC, the
effect would be:

– All the incoming monies, after deduction of the
interest and consultation charges and other
charges as may be applicable in favour of NBCC,
would be put in Amrapali’s kitty

– Additional cost of land dues to be paid to GNIDA

– No surplus funds left to pay out the various dues

– No payments to GNIDA

– No payments to the banks”

17. Mr. Janender Kumar Chumbak, learned Advocate appearing for

Religare Finvest Ltd. reiterated the submissions made in I.A.No.6397 of 2021

(Z-342*).

18. The first two sets of applications principally prayed that the orders

dated 23.07.2019 and 14.10.2019 be recalled or revisited. The Association

and the applicants supporting the Association submitted that the Company be
38

declared to be part of the Amrapali Group of Companies and consequently the

entire project be developed by the NBCC under the control and supervision

of the Court Receiver. On the other hand, according to the Company, it was

never part of the Amrapali Group of Companies and at best one of the

companies of the Amrapali Group could be said to be a shareholder to the

extent of 19.75% and that beyond such share capital no other amount was

invested by the Amrapali Group of Companies. Thus, according to the

Company it could not be directed to surrender 19.75% of the project land or

632 flats as was directed in the order dated 23.07.2019. However, both the

sets of applications desired that the same benefits as given to all the flat buyers

from Amrapali Group of Companies be extended and the project be relieved

of the requirement of paying the dues of GNIDA like other Amrapali projects.

19. When the order dated 23.07.2019 was passed by this Court, I.A. No.

168186 of 2018 (Z-68*) was pending on the file of this Court. Similarly, I.A.

No. 153341 of 2019 (Z-233*) was filed on 01.10.2019 i.e. before the

subsequent order dated 14.10.2019 was passed by this Court. The prayer made

in the latter application that the order dated 23.07.2019 be recalled was not

favourably considered on 14.10.2019. On the contrary, after noting the
39

submission made on its behalf, the Company was directed to file an

appropriate affidavit indicating the expenditure required for constructing 632

flats so that appropriate adjustments could be effected.

In the face of these developments, it would not be possible for us to

entertain the prayer made in the concerned interim applications either seeking

recall of the orders dated 23.07.2019 and 14.10.2019 or revisit of the issue

whether the Company ought to be declared as part of the Amrapali Group of

Companies, more particularly because of the developments that have taken

place with respect to the instant project.

20. As indicated in the tabular charts which were part of the written note

filed on behalf of the Company, out of 3256 flats to be constructed, 1484 flats

have been fully constructed and possession of 1143 flats has already been

given to the concerned flat buyers. As per said charts, the work of

construction with respect to phases one and two is at an advanced stage.

Further, according to the figures indicated therein, per sq. ft. cost of

construction incurred by the Company has been to the tune of Rs.1657 per sq.

ft. whereas the per sq. ft. cost of construction by the NBCC, if at this juncture

the project is handed over to the NBCC, would be in the region of Rs.2550
40

per sq. ft. along with 8% consultation charges of the NBCC. Thus, if the

instant project is now handed over to the NBCC, it would result in escalation

in costs to the detriment of the flat buyers. The figures also show that as

against the original liability of Rs.155.10 crores, the Company has already

discharged the liability towards the dues of GNIDA to the extent of Rs.117.10

crores.

21. It is true that the “Heartbeat City” Project coming from the second

category5 was dealt with by this Court in its Order dated 28.07.2020 and was

directed to be taken over by the NBCC like other Amrapali Projects.

However, the distinguishing feature as noticed in paragraph 4 of the Order

dated 28.07.2020 was that there was absolutely no progress with respect to

said project. In contradistinction, the instant project has progressed to a

considerable extent. At least 1143 flat buyers have received possession while

the work of construction with respect to phases one and two is at an advanced

level. Further, the interest of the Amrapali Group of Companies and

consequently that of the flat buyers who had invested money in other

Amrapali Projects already stands quantified at 19.75% vide Orders dated

23.07.2019 and 14.10.2019. Therefore, even if there could be some similarity

with regard to the status of the instant project as against “Heartbeat City”
41

Project, considering the fact situation on record, that by itself would not afford

sufficient reason to entertain the submissions on behalf of the Association and

the applicants supporting the Association.

22. Even if the entire project cannot be made over to the NBCC for the

reasons stated above, another aspect of the matter that may require

consideration is whether the component representing 632 flats could still be

made over to the NBCC. However, that course would also not be feasible as

those 632 unsold flats are spread over in various towers; some of them are in

Phase one while the others are in Phases two and three.

23. An important aspect of the matter is that unlike all the other projects of

the Amrapali Group which were made over to the NBCC, the development

with respect to the instant project has always been an on-going process. In all

the other projects of the Amrapali Group, either there was no development

right from the inception or even if some development had been initiated, the

same was completely at a standstill when the matters were taken up for

consideration by this Court.

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24. Considering all these features of the matter, in our considered view, it

would not be just and proper to hand over the development at this stage to the

NBCC as prayed for by the Association and the applicants supporting the

Association. We, therefore, do not deem it appropriate to recall the orders

dated 23.07.2019 and 14.10.2019 or to revisit the issue whether the Company

could be declared to be part of the Amrapali Group of Companies. Similarly,

we also do not deem it appropriate to extend the benefits as prayed for either

by the Association or by the Company. We, therefore, reject the first two sets

of applications. No separate orders are called for in the third set.

25. However, certain directions must be passed to secure the amounts

receivable by the Amrapali Group of Companies through the instant project.

26. It is therefore directed:-

a) The Company shall be entitled to continue with the construction

and development of the instant project;

b) 632 flats which were subject matter of Orders dated 23.07.2019

and 14.10.2019 shall be allowed to be sold by the Company to the

interested persons or parties at a fair price or value, provided :-

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i) all the concerned transactions including the execution of

appropriate documents or deeds are counter-signed by the

Court Receiver or his nominee;

ii) The price or value at which said flats are to be sold is

certified by the Court Receiver to be fair and appropriate.

iii) all the amounts received by way of such transactions of

sale are credited to a separate account completely under

the control of the Receiver and/or his nominee;

iv) the cost of construction with respect to those 632 flats,

upon due certification by the Chartered Accountants of the

Company and to the satisfaction of the Receiver, shall be

made over to the Company; and

v) it shall however be open to the Receiver to give such

advances towards the construction of these 632 flats from

and out of the amounts deposited in the account as

specified hereinabove, depending upon the stage and

progress of construction.

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c) The injunction with respect said 632 flats, as directed in the

Orders dated 23.07.2019 and 14.10.2019, shall stand modified to the

extent indicated hereinabove.

d) The difference between the amounts received from the concerned

flat buyers for purchase of said 632 flats and the expenditure incurred

on cost of construction shall finally be credited to the general account

maintained for the benefit of the flat buyers of the Amrapali Group of

Companies.

27. Thus, all the applications under consideration stand disposed of in

aforesaid terms but without any order as to costs.

……………………….J.

[Uday Umesh Lalit]

……………………….J.

[Ashok Bhushan]
New Delhi;

June 29, 2021.



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