Unitech Limied vs Telangana State Industrial … on 17 February, 2021


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Supreme Court of India

Unitech Limied vs Telangana State Industrial … on 17 February, 2021

Author: Hon’Ble Dr. Chandrachud

Bench: Hon’Ble Dr. Chandrachud, M.R. Shah

                                                                               Reportable


                              IN THE SUPREME COURT OF INDIA
                               CIVIL APPELLATE JURISDICTION


                                 Civil Appeal No. 317 of 2021
                            Arising out of SLP (C) No. 9019 of 2019



          UNITECH Limited & Ors.                                       .... Appellants


                                            Versus



          Telangana State Industrial Infrastructure                    .... Respondents
          Corporation (TSIIC) & Ors.




                                              With

                                  Civil Appeal No. 318 of 2021
                            Arising out of SLP (C) No. 10135 of 2019


                                              And

                                              With



                                  Civil Appeal No. 319 of 2021
                            Arising out of SLP (C) No. 17529 of 2019
Signature Not Verified

Digitally signed by
Sanjay Kumar
Date: 2021.02.17
12:40:58 IST
Reason:




                                               1
                                JUDGMENT




Dr Dhananjaya Y Chandrachud, J



  A. Background

B. Proceedings before this Court

C. Salient features of the transaction documents

D. Submissions of the parties

E. Analysis

E.1. Maintainability of the writ petition under Article 226

E.2. Contractual right to compensatory payment

E.3. Apportionment of the liabilities between the instrumentalities of the

state of Andhra Pradesh and Telangana

F. Summation

2
PART A

A. Background

1 The appeals arise from a judgment dated 1 April 2019 of a Division Bench of

the High Court for the State of Telangana. Three appeals will form the subject matter

of these proceedings. The three appeals which arise have been instituted by

(i) UNITECH Limited (“Unitech”);

(ii) Telangana State Industrial Infrastructure Corporation (“TSIIC”); and

(iii) State of Telangana.

2 In September 2007, the Andhra Pradesh Industrial Infrastructure Corporation

Ltd. (“APIIC”) invited bids to “develop, design and construct” an integrated township

project / multi services aerospace park in the area of about 350 acres of land in

Nadergul Village, Saroornagar Mandal, Ranga Reddy District. In pursuance of its

press release, APIIC floated a bid document.

3 On 28 November 2007, the bid submitted by Unitech was accepted upon

payment of an earnest money deposit of 20 crores. It was contractually required to

pay an amount of Rs 140 crores as project land cost and Rs 5 crores towards

project development expenses. A litigation in regard to the land was pending. While

issuing a Letter of Award (“LoA”), APIIC made the allotment of the land subject to

the outcome of the pending litigation. The LoA stipulated that:

“17. The allotment of said land is subject to the outcome of
the Appeal Suit No. 274/2007 in (OS No. 155/05), WP Nos.
19670/07, 20667/07 and 22043/07 pending before the
Hon’ble High Court of Andhra Pradesh.”

3

PART A

4 Pursuant to accepting the LoA on 3 December 2007, Unitech paid the first

installment of Rs 15 crores towards the purchase price of the land. This was

followed by the second installment for Rs 20 crores on 4 December 2007. On 27

December 2007, it deposited an amount of Rs 5 crores towards project development

expenses. On 1 January 2008, it paid the third installment of Rs 35 crores towards

the purchase price of the land.

5 On 5 January 2008, APIIC while acknowledging the receipt of the three

installments of Rs 70 crores towards the cost of land directed the Zonal Manager,

Shamshabad Zone, Hyderabad to hand over the project site to enable Unitech to

commence survey and planning work. The fourth installment of Rs 35 crores

towards the purchase price of the land was paid on 11 January 2008, while the fifth

installment for another Rs 35 crores was paid on 25 January 2008. Unitech paid, in

the above manner, a total amount of Rs 165 crores: Rs 140 crores towards the cost

of land, Rs 20 crores towards earnest money deposit and Rs 5 crores towards

project development expenses.

6 On 19 August 2008, a Development Agreement was entered into between

APIIC, Unitech and Nacre Gardens Hyderabad Limited, formerly known as (Unitech

Hyderabad Township Limited), a special purpose vehicle formed to execute the

project.

4
PART A

7 On 29 April 2011, APIIC issued a notice to show cause to Unitech to

commence work on the project land. On 11 May 2011, Unitech requested APIIC to

intimate, within seven days, the steps being taken to handover the land with

reference to the provisions of Article 13.3(b) of the Development Agreement which

mandated an encumbrance-free handover. The response to APIIC’s show-cause

notice dated 29 April 2011 was further re-iterated in Unitech’s letter dated 14 May

2011 stating that APIIC would have to first establish its title to the land and to

remove the encumbrances, before work could commence.

8 On 21 May 2011, APIIC was informed that a ‘political force majeure event’

within the meaning of the Development Agreement had taken place. On 19

December 2011, the High Court of Andhra Pradesh in a proceeding titled as “Pratap

Karan v Govt. of Andhra Pradesh1, held that the Government of Andhra Pradesh

did not have title to the project land. Following the decision, Unitech by its

communication dated 27 March 2012 requested APIIC to clarify the position and to

jointly explore possible solutions to the title dispute over the project site.

9 On 12 July 2012, Unitech addressed a letter to APIIC recording that:

“9. In view of the delay in the commencement of the Project
on account of reasons attributable to APIIC alone, the
Developer is suffering financial losses and great hardship.

You would appreciate that financial institutions are being paid
interest on the aggregate amounts paid to APIIC for the

1
Appeal Suit No. 274 of 2007 (Andhra Pradesh High Court)

5
PART A

Project, and the Developer is considering further appropriate
action.”

On 8 April 2013, Unitech again called upon APIIC to come forward to execute the

sale deed, handover the project site and ensure that the encumbrances on the

project land are cleared in terms of the Development Agreement so as to comply

with its obligations at the earliest.

10 The State of Andhra Pradesh was re-organized into the successor States of

Andhra Pradesh and Telangana with effect from 2 June 2014 under the provisions of

the Andhra Pradesh Reorganization Act, 2014. On 12 March 2015, Unitech

addressed a letter to the newly-formed TSIIC (as successor of APIIC) seeking its

intervention in clarifying the actual status of the extent of the land awarded to them,

the cases against the erstwhile APIIC, physical handover of possession with a clear

title and compensation for loss of time and opportunity. On 2 April 2015, Unitech

sought a release of the earnest money deposit of Rs 20 crores, in light of the full

payment of the consideration.

11 On 9 October 2015, a two-judge bench of this Court in its decision in State of

Andhra Pradesh through Principal Secretary v. Pratap Karan2 upheld the

judgment of the High Court. After the decision of this Court, Unitech requested

APIIC and TSIIC, on 14 October 2015, to refund all the amounts which have been

2
(2016) 2 SCC 82

6
PART A

received in relation to the land together with interest and damages for the loss

suffered by them, which included the cost of borrowing capital from banks, expenses

for planning and designing, opportunity costs and other costs for development.

12 On 24 December 2015, Unitech sought a refund of an amount of Rs 457

crores towards principal and interest. This was followed by reminders on 31 May

2016 and 7 June 2016. An advocate’s notice was also issued on 13 June 2016.

13 Initially, invoking the jurisdiction under Article 32 of the Constitution, Unitech

filed proceedings before this Court which were disposed on 1 May 20173 by granting

liberty to move the High Court under Article 226. A Writ Petition under Article 226

was instituted before the High Court for the State of Telangana4 seeking a refund of

Rs 165 crores together with interest at the SBI Prime Lending Rate (“SBI- PLR”)

from the date of payments. By a judgment and order dated 23 October 2018, a

Single Judge of the High Court allowed Unitech’s Writ Petition. The concluding

paragraphs 61 to 64 of the judgment are extracted below:

“61. In the instant case, retention of the amounts paid by the
petitioners by the respondents is against the fundamental
principles of justice, equity and good conscience and clearly
amounts to unjust enrichment of the respondents particularly
when such a retention is arbitrary and also violates Article 14
and 300-A of the Constitution of India. Therefore, the
respondents are bound to make restitution of the
amounts claimed by petitioners with interest as per SBI
Prime Lending Rate as per Clause 14.3.1 r/w Clause 1.1.(l)

3
Writ Petition (Civil) No. 302 of 2017 (Supreme Court of India)
4
Writ Petition (Civil) No. 29722 of 2017 (Andhra Pradesh High Court)

7
PART A

of the Development Agreement from the date of receipt of
the said amount till payment.

“62. According to the petitioners, as on 30-09-2018, the
following amounts are payable:

Interest was calculated compounded annually @ SBI PLR
Rate. Counsel for petitioner stated that since SBI PLR was
only available till 5th Oct 2015 as per SBI website, post that
period, SBI PLR has been taken at same rate as 5th Oct
2015 i.e. 14.05% p.a.

63. The respondents have not disputed either the dates of the
payments or the interest at SBI Prime Lending Rate
mentioned by the petitioners or placed any material to
contradict the same.

64. Therefore I hold that the amount of Rs.660.55 crores
is due and payable to the petitioners by respondents,

8
PART A

which shall be paid by respondents to petitioner no.3
within 4 weeks from today. However, they are entitled to
recover it from the State of Andhra Pradesh and the APIIC, if
under law they are entitled to do so. This does not preclude
the petitioners from claiming other amounts from respondents
towards damages under other heads, if they are entitled to do
so under law.”

(emphasis supplied)

14 A Writ Appeal was filed before the High Court by TSIIC and the State of

Telangana5. The Division Bench of the High Court upheld the order of the Single

Judge on the liability of TSIIC to refund an amount of Rs 165 crores to Unitech.

However, the Division Bench directed a refund of the principal sum of Rs 165 crores

with interest from 14 October 2015 at the SBI-PLR, as opposed to the dates of

payment of installments, beginning from September 2007.

15 The Division Bench of the High Court has come to the conclusion that in the

exercise of the writ jurisdiction under Article 226, the Single Judge’s decision had

aligned itself with the line of precedent of this Court; justifiably entertained the writ

petition and directed a refund of the consideration. However, the order of the Single

Judge directing the payment of interest compounded inter alia at the SBI- PLR from

the dates of payment commencing from September 2007 has been modified in

terms of the direction requiring the payment of interest at the SBI- PLR from 14

October 2015. In taking this view, the Division Bench held:

5

Writ Appeal No. 1594 of 2018 (Andhra Pradesh High Court)

9
PART A

(i) Under the LoA dated 28 November 2007, Unitech was put to notice that the

award of the contract was subject to the outcome of a litigation which was

pending before the High Court;

(ii) Even the advertisement for the award of the contract indicated that it would be

subject to the outcome of a first appeal which was pending before the High

Court;

(iii) Unitech accepted the award of the contract on 3 December 2007 and made

its payments between September 2007 and January 2008;

(iv) The release of the earnest money deposit was sought on 2 April 2015 and a

refund of the entire amount paid with interest, was claimed for the first time on

14 October 2015, after the judgment of the High Court attained finality through

the decision of this Court dated 9 October 2015; and

(v) Unitech was aware of the pending litigation and was awaiting the outcome of

the civil appeal and the tenor of the correspondence indicates that they

wished to continue with the project.

On the above premises, the Division Bench of the High Court took a considered

view that Unitech’s request for a refund on 14 October 2015, after the decision of

this Court confirming that the Government of Andhra Pradesh had no title to the

land, should mark the commencement of TSIIC’s liability to pay interest.




                                            10
                                                                              PART B



B.    Proceedings before this Court


16    Notice was issued by this Court in the Special Leave Petition filed by Unitech

on 15 April 2019.



17    On 13 February 2020, this Court recorded that a new Board of Directors had

taken charge of the business of Unitech limited. At this stage, it must be noted that

the Board of Directors of Unitech has been superseded and replaced by a Board

appointed by the Union government.

18 On 5 March 2020, when the proceedings came up before this Court, besides

the Special Leave Petition filed by Unitech limited and its subsidiary, the Court was

seized with two other Special Leave Petitions filed by TSIIC and the State of

Telangana, respectively. This Court noted the submissions which were urged on

behalf of TSIIC that following the re-organization of the erstwhile State of Andhra

Pradesh, a division of the assets and liabilities was required to be effected by the

Central government under Section 71 of the Andhra Pradesh Reorganization Act

2014, in the absence of which TSIIC could not alone be held liable to deposit the

entire amount as ordered to be refunded by the High Court. This Court recorded the

submission of TSIIC that it would deposit 42 per cent of the principal sum of Rs 165

crores, amounting to Rs 69.30 crores. It additionally directed that interest

commencing from 14 October 2015 must be deposited, at the rate and in the

11
PART B

manner directed by the Single Judge of the High Court. The order of this Court

dated 5 March 2020 reads thus:

“ ……Mr C S Vaidyanathan, learned senior counsel
appearing on behalf of TSIIC contests the liability of TSIIC to
meet the liability for the outstanding, if any, that may be due
from APIIC. In this context, reliance has been placed on
Section 68 of the Andhra Pradesh Reorganisation Act 2014
which provides as follows:

“68. Provisions for various companies and
corporations:- (1) The companies and corporations
specified in the Ninth Schedule constituted for the
existing State of Andhra Pradesh shall, on and
from the appointed day, continue to function in
those areas in respect of which they were
functioning immediately before that day, subject to
the provisions of this section.

(2) The assets, rights and liabilities of the
companies and corporations referred to in sub-

section (1) shall be apportioned between the
successor States in the manner provided in section

53.”

Section 71 contains the following provision:

“71. Certain provisions for companies:-

Notwithstanding anything in this Part, the Central
Government may, for each of the companies
specified in the Ninth Schedule to this Act, issue
directions–

(a) regarding the division of the interests and
shares of the existing State of Andhra Pradesh in
the Company between the successor States;

(b) requiring the reconstitution of the Board of
Directors of the Company so as to give adequate
representation to the successor States.”

APIIC has been listed at Entry 17 of the Ninth Schedule to the
Act.

The submission of Mr C S Vaidyanathan is that in the
absence of a division by the Central Government between the
liability of APIIC and TSIIC, as contemplated in Section 71 of

12
PART B

the Act, TSIIC cannot be held liable for the entire amount
merely on the ground that the lands fall within the jurisdiction
of the successor State of Telangana. The submission is that
despite the objections which were raised on behalf of the
TSIIC, APIIC was not impleaded as a party to the
proceedings before the High Court.

Mr Tushar Mehta, learned Solicitor General of India has
appeared both in support of the Special Leave Petition which
has been filed on behalf of Unitech Limited (which is now
under the management of a Board of Directors constituted by
the Central Government) and to oppose the Special Leave
Petitions, which have been filed by TSIIC.

At this stage, we direct that APIIC be impleaded as a party in
all the Special Leave Petitions. The amendment be carried
out within a period of one week from today.

Notice shall be issued to APIIC, the newly impleaded party,
returnable in four weeks.

Mr. C.S. Vaidyanathan, learned senior counsel stated that
without prejudice to the rights and contentions of TSIIC in
these proceedings, it will deposit forty-two per cent of the
principal sum of Rs 165 crores before this Court, which works
out to Rs 69.30 crores. This amount shall be deposited within
a period of four weeks from today. In addition, we are of the
view that since there is effectively a money decree, TSIIC
should also deposit interest computed on the aforesaid
amount of Rs 69.30 crores, computed with reference to 14
October 2015 as the commencement date, at the rate and in
the manner which has been directed in the order of the
learned Single Judge of the High Court, by 30 April 2020. All
amounts which are deposited by TSIIC shall be subject to the
result of the present proceedings and would be without
prejudice to its rights and contentions.

The amount, upon deposit, shall be invested in a fixed deposit
of a nationalized bank by the Registry of this Court. The
newly constituted Board of Directors of Unitech Limited would
be at liberty to make an application for withdrawal of the
aforesaid amount.”

13
PART C

Notice has been issued in the Special Leave Petitions filed by the State of

Telangana on 22 July 2019 and by TSIIC on 29 April 2019.

19 The appeals arising out of the three proceedings under Article 136 of the

Constitution have been heard together since they arise out of common facts and the

same transaction.

C. Salient features of the transaction documents

20 Before dealing with the rival submissions, it is necessary to preface our

analysis with a reference to the salient aspects of the transaction, leading to the

award of the contract and the execution of the Development Agreement between

APIIC and Unitech.

21 On 28 November 2007, the LoA was issued by APIIC to Unitech for the

development of an integrated airport township / multi services aerospace park,

Hyderabad on a public-private-partnership basis. Clause 3 of the LoA contemplated

the payment of an amount of Rs 140 crores towards the value of the land, payable in

four tranches each of Rs 35 crores. Clause 3 of the LoA was in the following terms:

“3. Total Purchase Price.

The Total Purchase Price for the Total Land shall be Rs.140
crores (Rupees one hundred and forty crores only). The value
of the land is fixed at Rs.40 Lakhs per acre (Rupees Forty
Lakhs per acre) and payable to APIIC as follows:

14

PART C

i) Rs.35 Crores (Rs. Thirty Five crores only) within 7 days from
the issue of LOA to the Developer.

ii) Rs.35 Crores (Rs. thirty Five Crores only) to be paid within 30
days from the date of 1st instalment by the developer.

iii) Rs.35 Crores (Rs. thirty five Crores only) within 15 days from
the date of 2nd instalment by the developer.

iv) Rs.35 Crores to be paid within 15 days from the date of 3rd
instalment by the developer.

Sale Deed will be executed by APIIC in favour of Special
Purpose Vehicle (SPV) only on receipt of rs.140 Crores from
the Successful Bidder/SPV, as per the instalments fixed
above.

“All the payments mentioned above need to be strictly
adhered to by the Developer/ SPV. In the event of default of
any of the instalments mentioned above, APIIC shall forthwith
forfeit the respective amounts paid by the Bidder (in addition
to EMD) unless APIIC has given any extension of time for any
such payment. Any such default in payment by the
Developer/ SPV may lead to withdrawal or cancellation of
award of the project to the Successful Bidder without any
obligation or liability on whatsoever account to APIIC.

APIIC decision to withdraw or cancel award of project in such
default circumstances shall be final and binding on the
Developer/SPV. The total Purchase Price may be adjusted
based on the extent of the land verified during the joint
inspection of the respective Developer and APIIC.

(illegible) will be handed over to SPV on, “as is where is
basis” in parcels to such (illegible).”

Clause 12 contemplated the forfeiture of the Earnest Money Deposit and / or

performance security in the event of a “significant event of default” prior to execution

of the Development Agreement. Among the default events were:

“(ii) Failure to pay the Total Purchase Price quoted for the
land to APIIC within the time as specified in this Letter of
Award.”

15
PART C

22 Some of the salient provisions regarding transfer of land in the Development

Agreement dated 19 August 2008 executed between APIIC and Unitech are set out

below:

(i) The recitals to the agreement contained a specific representation that

APIIC was authorized to transfer and deliver the project site admeasuring

350 acres:

“D) In terms of a Panchnama dated 8.5.2007 of
the Deputy- Collector, Saroornagar Mandal, RR
District has transferred Acres 373-22 Guntas in
Survey No. 613 (New 119) at Nadergul Village to
APIIC, and APIIC is authorised- to transfer (on an
outright sale basis) and deliver the Project Site
measuring Acres 350-00 Guntas to the Developer.”

(ii) APIIC covenanted to transfer and sell the land together with its rights, title

and interest free from all encumbrances by executing a sale deed in favour

of Unitech:

“G) APIIC shall sell and transfer the Land absolutely,
together with all rights, title, interest and benefits
belonging thereto/ connected therewith (but free of all
Encumbrances), by executing a Sale Deed in favour
of the Developer.”

23 (i) Article 1 contained definitions inter alia of the following expressions:

“h) “Applicable Rate” means the prime lending rate of the
State Bank of India, compounded annually.

l) “Compensatory Payment” with reference to all or any
portion of the Project Site (the “Compensated Land”) as on a
particular date (the “Reference Date”) for the purposes of this
Agreement including for the purposes of Clauses-14.3.1,

16
PART C

14.3.2, 17.6 and 23.3 hereof shall mean an amount equal to
the sum aggregate of the following:

(i) The Total Purchase Price in respect of the
Compensated Land until the Reference Date, as per the
audited accounts of the Developer;

(ii) Interest-calculated at the rate of SBI PLR (“Interest”),
on the Total Purchase Price of the Compensated, Land, from
the date on which the first payment of purchase price in
respect of the Compensated Land is made (whether by way
of an advance or an earnest money deposit) until the
Reference Date.

All the above payments shall be denominated in Indian
rupees.”

(ii) Article 1.7 stipulates an order of priorities under which, in the event of a

conflict between the agreement and any other document, the former would

prevail:

“1.7 In the event of any conflict between the terms of this
Agreement and the Schedules or any other document, this
Agreement shall prevail. The document forming part of
bidding process leading to this Agreement shall be relied
upon and interpreted in the following descending order of
priority;

(a) This-Agreement (Including any amendment / supplement
to this Agreement) and the Detailed Project Report]

(b) The Schedules & Annexures to this Agreement

(c) The Letter of Award issued to the preferred bidder

(d) Preferred bidders bid

(e) The RFP”

(iii) Under Article 3.1, APIIC undertook the obligation to transfer the land to the

developer free from all encumbrances, upon the developer’s payment of the

last installment of the total purchase price:

17
PART C

“3.1 APIIC shall, forthwith upon payment of the last
instalment of the Total Purchase Price by the Developer sell
and transfer the Land together with all rights, title, interest and
benefits belonging thereto/ connected therewith (but free of all
Encumbrances), by executing a Sale Deed in favour of the
Developer, which shall be registered with the concerned
Registrar / Sub Registrar of Assurances. The stamp duty and
registration fees payable, if any, on the Sale Deed (subject to
Article 8.6 below) to be executed in favour of the Developer
shall be borne by the Developer;”

(iv) APIIC acknowledged the payment of Rs 140 crores towards the total

purchase price and Rs 5 crores towards project development expenses in

Article 3.2.

(v) Under Article 4.1, the developer was to have exclusive promotion and

advertising rights in respect of the project and under Article 4.2, could enjoy

all rights, privileges and benefits as are generally available to an owner of

immovable property.

(vi) Simultaneously with the payment of the last installment of the total purchase

price, APIIC was required to handover to the developer:

           (a)       Ownership and title documents to the land;

           (b)       A certified copy of the government order evidencing its ownership

rights over the land together with a possession certificate issued by

the revenue department; and

(c) A declaration certifying that APIIC is the rightful owner of the land

which was in its possession.

(vii) Article 13.3 provided for the obligations of APIIC in the following terms:

18
PART C

“13.3 Obligations of APIIC:

For the purpose of this Agreement, each of the following
shall be the “Significant APIIC Obligations” of APIIC;

a) to execute the Sale Deed within’ the specified time frame,
any contracts / document as may be required in accordance
with the terms of this Agreement for raising of any finances
in relation to the Project, and other documents with the
mutual consent of the parties as may be required to be
executed for the Project;

(b) to handover the Land as specified in this Agreement
without any Encumbrances and with the right of way for the
purpose of Development by the Developer.

(c) to clear any Encumbrances in respect of any portion of
the Project Site (other than those created by the Developer)
at any point in time in accordance with the provisions of this
Agreement;

(d) to facilitate provisions of External infrastructure as
contemplated in this Agreement.”

(viii) The consequences of default by APIIC were stipulated in Article 14.3. Thy

were envisaged in the following terms:

“14.3.1 In the event APIIC/ GOAP is unable to execute Sale
Deed in favour of the Developer in respect of the Land, within
the time specified, APIIC shall, if so required by the
Developer, pay Compensatory to the Developers, subject to
stay /interim / injunctive / other orders issued by High Court of
Andhra Pradesh or any other competent court/ s.”

(ix) Article 14.3.4 stipulated that:

“14.3.4 Without prejudice to its rights and remedies the
Developer shall in no event be (a) liable for failure to meet
any of its obligations under this Agreement in the event such
failure could be attributed to (i) a default or delay on the part
of APIIC in fulfillment of any their respective obligations under
Article 13.3 of this Agreement and/ or (ii) Encumbrances or
Title Issues on any portion of the Land, which may have

19
PART C

Material Adverse Effect on the Project and/ or (iii) Occurrence
of Force Majeure Events, and (b) required to pay any interest
or make any payment (including Revenue Share) or provide
any performance / bank guarantee or other security to APIIC
during (i) the continuance of any default on delay on the part
of APIIC in fulfillment of their obligations under Article 13.3 of
this Agreement the Project Agreements, and/ or (ii) the period
when the development of Project is impacted due to Force
Majeure events & Title Issues on the Project Site.”

(x) Article 17 of the Development Agreement contains stipulations in regard to

force majeure events. Article 17.2(a) defined ‘political force majeure events’:

“17.2 (a) Political Force Majeure Events, comprising Acts of
War, invasions, armed conflicts, terrorism, riots, strikes,
lockouts, curfews, restraints, acts of Government (including
expropriation or compulsory acquisition of any Project
Assets), or Change in Law (such as change in policies of Gol
in relation to townships, foreign direct investment), which
event/s significantly impact the Project, direct litigation
related to APIIC’s / GoAP’s title to the Project Site),
stay/interim/ injunctive/other orders issued by the Court,
unlawful or un-authorised or without jurisdiction revocation of
or refusal to renew or grant without valid cause any consent
or approval required by the Developer or any of the other
Person to perform their respective obligations under the
Project Agreements (provided that such delay, modification,
denial, refusal or revocation did not result from the
Developer’s or any of its contractor’s inability or failure to
comply with any condition relating to grant, maintenance or
renewal of such consents or permits), or events of similar
nature, in each case which materially affect the
implementation of the Project.”
(emphasis supplied)

(xi) Article 17.6 stipulates that in the event of a political force majeure event

continuously impacting upon the project as a material adverse effect for over

nine months, the developer would be entitled to issue a notice of termination.

20

PART D

Upon such termination, APIIC was required to pay the ‘compensatory

payment’ to the developer:

“17.6 Termination: Either party to this Agreement may issue a
notice of termination of this Agreement if a Non-Political
Force Majeure Event (or its direct impact) has resulted in
Material Adverse Effect on the Project and has continued for
more than Nine (9) months from the date of occurrence
thereof. On the other hand Developer shall be solely entitled
(but not obligated) to issue notice of Termination of this
Agreement if a Political Force Majeure Event (or its direct
impact) has resulted in Material Adverse Effect on the Project
and has continued for more than Nine (9) months from the
date of occurrence thereof. Upon any such termination of this
Agreement due to Political Force Majeure event, APIIC will
pay the Compensatory Payment (less any insurance
proceeds recovered by the Developer), to the Developer
simultaneously with the Developer handing back the Unsold
Property to APIIC.”

D. Submissions of the parties

24 Mr N Venkataraman, learned Additional Solicitor General, appearing on

behalf of the management of Unitech (appointed by the Union of India), emphasized

the following undisputed facts:

(i) Title was never conveyed by APIIC to Unitech In terms of the Development

Agreement;

(ii) By the judgment of this Court dated 9 October 2015, the dispute over the title

of the Government of Andhra Pradesh over the project land was conclusively

set at rest with a negative finding on title;

(iii) An amount of Rs 165 crores has been deposited by Unitech since September

2007 with the Government of Andhra Pradesh; and

21
PART D

(iv) The project cannot be implemented in the absence of title to the lands in the

State Government.

25 Relying on a line of precedent of this Court, the ASG submitted that:

(a) The entire project was premised on the conveyance of title to the land, free

from all encumbrances by APIIC to Unitech;

(b) A solemn representation was held out in the Development Agreement that

APIIC was in a position to convey title and possession to Unitech following

the award of the contract to it as a developer;

(c) Unitech fulfilled the peremptory obligation to deposit an amount of Rs 165

crores upfront;

(d) ‘Political force majeure events’ included litigation relating to the title of APIIC

or the Government of Andhra Pradesh. On the coming into being of a political

force majeure event which caused a material adverse impact on the project

for over nine months, Unitech was entitled to compensatory payment from

APIIC;

(e) Upon the failure of title of the Government of Andhra Pradesh resulting from

the judgment of this Court dated 9 October 2015, the developer became

entitled to a refund of the amounts paid together with interest compounded

annually at the SBI-PLR;

(f) The existence of an arbitration clause would not divest the High Court of its

jurisdiction under Article 226 of the Constitution to order refund with interest,

where a private developer who has entered into an agreement on a solemn
22
PART D

representation of the existence of title in the Government is unable to proceed

with the project due to a failure of title;

(g) The exercise of the writ jurisdiction under Article 226 in a contractual matter

is not ruled out particularly in the present case where there is absolutely no

dispute in regard to the basic facts;

(h) The Single Judge of the High Court had justifiably awarded interest from the

date of the first payment by Unitech in 2007. The Division Bench erred in

restricting the grant of interest from 14 October 2015;

(i) The litigation in regard to the title of the Government of Andhra Pradesh had

nothing to do with the moneys paid by Unitech. When the moneys were paid

in 2007, the refund of the amount must date back with reference to the date of

the initial payment. Therefore, the interest must be computed from the date on

which each of the installments were paid; and

(j) When the LoA was issued on 28 November 2007, the judgment dated 23

April 2007 held the field, which was in favour of the Government of Andhra

Pradesh. Its subsequent reversal would entitle the developer to a refund with

interest, as contracted from the date of the initial payment.

26 Mr C S Vaidyanathan, learned Senior Counsel appeared on behalf of the

State of Telangana and TSIIC. At the outset, he has submitted that TSIIC and the

State of Telangana do not dispute:

(i) The maintainability of a writ petition under Article 226 before the High Court;

and

23
PART D

(ii) The fact that the land comprised within the project site is not available for

utilization for the project.

The two areas on which the submissions of Mr C S Vaidyanathan, learned Senior

Counsel have been confined are: firstly, whether interest at the SBI-PLR and the

date from which interest has been awarded by the Division Bench of the High Court

are justified; and secondly, whether the High Court was justified in imposing the

entire liability to effect the refund on TSIIC.

27 On the award of interest, the submission is that:

(i) The LoA dated 28 November 2017 furnished notice to Unitech of the

pendency of the litigation;

(ii) Unitech and its SPV were conscious of the pendency of the appeal before the

High Court arising out of the judgment dated 30 April 2007, which had ruled in

favour of the title of the Government of Andhra Pradesh;

(iii) Unitech continued to pursue the project and did not claim political force

majeure, until after the decision of this court on 09 October 2015;

(iv) In any event, the High Court has brought about a just balancing of equities by

granting interest from the date of the decision of this Court namely 14 October

2015; and

(v) The rate of interest should be suitably scaled down from the SBI- PLR.

24
PART D

The above submissions in regard to the payment of interest; the date from which

interest should be payable and the appropriate rate of interest, were postulated on

the liability to refund the principal amount to Unitech. As a matter of fact, it has been

expressly stated during the course of the submissions that the liability to refund is

not being contested.

28 The second limb of submissions is that the liability to refund the principal

amount together with interest cannot be imposed on TSIIC alone. TSIIC argues that

the liability to refund the principal sum together with interest to Unitech has to be

apportioned between TSIIC and APIIC in terms of the provisions contained in the

Andhra Pradesh Reorganization Act 2014. The submission is elaborated along the

following lines:

(i) TSIIC has deposited an amount of Rs.127.53 crores before this Court in

pursuance of the interim order dated 5 March 2020, out of which Rs.69.30

crores represents the principal and Rs.58.23 crores is towards interest;

(ii) Section 68 of the Reorganization Act stipulates that the companies specified

in the IXth Schedule (including APSIIC) constituted for the erstwhile State of

Andhra Pradesh would continue to function in those areas in respect of which

they were functioning immediately before the date of re-organization. Under

sub-section(2) of Section 68, the assets, rights and liabilities of the companies

forming a part of the IXth Schedule are required to be apportioned between

the successor states, in the manner indicated in Section 53;

25
PART D

(iii) Under Section 71, the Central Government is empowered to issue directions

in respect of the companies specified in the IXth Schedule inter alia for dividing

the interest and shares of the existing State of Andhra Pradesh between the

successor States;

(iv) Section 65 allows for an apportionment of assets and liabilities by agreement,

while Section 66 confers power on the Central government to order an

allocation or adjustment in certain cases;

(v) Though the Central government constituted a Committee for the distribution

of assets, it has not issued any directions, despite the committee submitting

its recommendations, in view of the pendency of a petition under Article 32 of

the Constitution before this Court; and

(vi) Section 2(h) of the Re-organization Act provides for a population ratio of

58.32 : 41.68 in relation to the States of Andhra Pradesh and Telangana,

based on the 2011 census. On the basis of a population ratio of

approximately of 58:42, TSIIC has borne 42 per cent of the liability towards

the refund due to Unitech and the balance should be directed to be shared by

APIIC representing the successor State of Andhra Pradesh based on the

“normal sharing as per the population ratio”.

29 During the course of these proceedings, APIIC was directed to be impleaded.

APIIC has entered appearance and filed its own counter affidavit. Mr Anuroop

Chakravarti, learned Counsel appearing on behalf of the APIIC, has opposed the

submissions urged on behalf of the State of Telangana and TSIIC that the liability to

26
PART D

refund the principal and interest must be apportioned between TSIIC and APIIC.

APIIC has submitted that:

(i) Before the appointed date of 2 June 2014, determined under the Re-

organization Act, a final audit was completed on 1 June 2014 and a joint

certificate was issued by the Managing Directors of TSIIC/APIIC;

(ii) The certificate issued on behalf of TSIIC and APIIC by its Managing Directors

records that all the assets and liabilities having a bearing in the balance sheet

as on 1 June 2014 have been audited and included in the demerger scheme

and that all assets and liabilities were duly apportioned between Andhra

Pradesh and Telangana under the Re-organization Act; and

(iii) Under the scheme of demerger/apportionment, the liability in respect of the

dues payable to Unitech has to be borne by TSIIC. This would be evident

from the terms and conditions which have been spelt out in Part II of the third

Schedule. The Schedule elucidates that the project site which forms the

subject matter of the Development Agreement was a part of the area which

falls within the jurisdiction of TSIIC. The liability by the terms of the demerger

scheme is that of TSIIC.

30 The Special Leave Petition6 which was filed before this Court by TSIIC raised

several objections to the correctness of the order passed by the High Court. Among

the grounds which were urged in support of the Special Leave Petition were the

following:

6

SLP (C) No. 10135 of 2019

27
PART D

(i) The High Court ought not to have entertained a writ petition under Article 226

of the Constitution “in a pure contractual dispute”;

(ii) The Development Agreement contains an arbitration agreement in Article

23.1;

(iii) TSIIC can provide the land to Unitech and hence a direction for refund with

interest ought not to have been given;

(iv) There was a violation by Unitech of the terms of the bid document and the

LoA and the Development Agreement deviated from the bid and the LoA;

(v) Unitech bid for the project and accepted the LoA with full knowledge of the

pending litigation over title to the land forming a part of the agreement, and

agreed to await the outcome of the litigation; and

(vi) APIIC entered into the agreement with Unitech and ought to share the

liabilities in the population ratio of approximately 58:42, as provided under the

Andhra Pradesh Re-organization Act 2014.

31 The State of Telangana, in its submissions before this Court in the Special

Leave Petition had similarly assailed the judgment of the High Court on several

grounds including the following :

(i) The claim for refund is based on an unregistered Development Agreement

which is invalid;

28
PART E

(ii) The land which is comprised in the project site can be made available for the

project as the land owners have agreed to transfer the land to the

Government of Telangana;

(iii) The terms and conditions of the LoA were not complied with by Unitech;

(iv) In view of the arbitration agreement, a writ petition under Article 226 could not

be maintained; and

(v) The liability, if any, has to be shared between the successor states of Andhra

Pradesh and Telangana in the ratio of 58:42.

E. Analysis

E.1. Maintainability of the writ petition under Article 226

32 Much of the ground which was sought to be canvassed in the course of the

pleadings is now subsumed in the submissions which have been urged before this

Court on behalf of the State of Telangana and TSIIC. As we have noted earlier,

during the course of the hearing, learned Senior Counsel appearing on behalf of the

State of Telangana and TSIIC informed the Court that the entitlement of Unitech to

seek a refund is not questioned nor is the availability of the land for carrying out the

project being placed in issue. Learned Senior Counsel also did not agitate the

ground that a remedy for the recovery of moneys arising out a contractual matter

cannot be availed of under Article 226 of the Constitution. However, to clear the

ground, it is necessary to postulate that recourse to the jurisdiction under Article 226

29
PART E

of the Constitution is not excluded altogether in a contractual matter. A public law

remedy is available for enforcing legal rights subject to well-settled parameters.

33 A two judge Bench of this Court in ABL International Ltd. v. Export Credit

Guarantee Corporation of India7 [ABL International] analyzed a long line of

precedent of this Court8 to conclude that writs under Article 226 are maintainable for

asserting contractual rights against the state, or its instrumentalities, as defined

under Article 12 of the Indian Constitution. Speaking through Justice N Santosh

Hegde, the Court held:

“27. …the following legal principles emerge as to the
maintainability of a writ petition:

(a) In an appropriate case, a writ petition as against a State or
an instrumentality of a State arising out of a contractual
obligation is maintainable.

(b) Merely because some disputed questions of fact arise for
consideration, same cannot be a ground to refuse to entertain
a writ petition in all cases as a matter of rule.

(c) A writ petition involving a consequential relief of monetary
claim is also maintainable.”

This exposition has been followed by this Court, and has been adopted by three-

judge Bench decisions of this Court in State of UP v. Sudhir Kumar9 and Popatrao

Vynkatrao Patil v. State of Maharashtra10. The decision in ABL International,

cautions that the plenary power under Article 226 must be used with circumspection

when other remedies have been provided by the contract. But as a statement of

principle, the jurisdiction under Article 226 is not excluded in contractual matters.

7
(2004) 3 SCC 553
8
K.N. Guruswamy v. State of Mysore, AIR 1954 SC 592; Gujarat State Financial Corporation. v. Lotus Hotels
(P) Ltd, (1983) 3 SCC 379; Gunwant Kaur v. Municipal Committee, Bhatinda, (1969) 3 SCC 769
9
2020 Scconline SC 847
10
Civil Appeal 1600 of 2000 (Supreme Court of India)

30
PART E

Article 23.1 of the Development Agreement in the present case mandates the

parties to resolve their disputes through an arbitration. However, the presence of an

arbitration clause within a contract between a state instrumentality and a private

party has not acted as an absolute bar to availing remedies under Article 226.11 If

the state instrumentality violates its constitutional mandate under Article 14 to act

fairly and reasonably, relief under the plenary powers of the Article 226 of the

Constitution would lie. This principle was recognized in ABL International:

“28. However, while entertaining an objection as to the
maintainability of a writ petition under Article 226 of the
Constitution of India, the court should bear in mind the fact
that the power to issue prerogative writs under Article 226 of
the Constitution is plenary in nature and is not limited by any
other provisions of the Constitution. The High Court having
regard to the facts of the case, has a discretion to entertain or
not to entertain a writ petition. The Court has imposed upon
itself certain restrictions in the exercise of this power.

(See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8
SCC 1] .) And this plenary right of the High Court to issue
a prerogative writ will not normally be exercised by the
Court to the exclusion of other available remedies unless
such action of the State or its instrumentality is arbitrary
and unreasonable so as to violate the constitutional
mandate of Article 14 or for other valid and legitimate
reasons, for which the Court thinks it necessary to
exercise the said jurisdiction.”
(emphasis supplied)

Therefore, while exercising its jurisdiction under Article 226, the Court is entitled to

enquire into whether the action of the State or its instrumentalities is arbitrary or

unfair and in consequence, in violation of Article 14. The jurisdiction under Article

226 is a valuable constitutional safeguard against an arbitrary exercise of state

11
Harbanslal Sahnia v. Indian Oil Corporation Ltd., (2003) 2 SCC 107; Ram Barai Singh & Co. v. State of Bihar
& Ors
., (2015) 13 SCC 592

31
PART E

power or a misuse of authority. In determining as to whether the jurisdiction should

be exercised in a contractual dispute, the Court must, undoubtedly eschew, disputed

questions of fact which would depend upon an evidentiary determination requiring a

trial. But equally, it is well-settled that the jurisdiction under Article 226 cannot be

ousted only on the basis that the dispute pertains to the contractual arena. This is for

the simple reason that the State and its instrumentalities are not exempt from the

duty to act fairly merely because in their business dealings they have entered into

the realm of contract. Similarly, the presence of an arbitration clause does oust the

jurisdiction under Article 226 in all cases though, it still needs to be decided from

case to case as to whether recourse to a public law remedy can justifiably be

invoked. The jurisdiction under Article 226 was rightly invoked by the Single Judge

and the Division Bench of the Andhra Pradesh in this case, when the foundational

representation of the contract has failed. TSIIC, a state instrumentality, has not just

reneged on its contractual obligation, but hoarded the refund of the principal and

interest on the consideration that was paid by Unitech over a decade ago. It does

not dispute the entitlement of Unitech to the refund of its principal.

E.2 Contractual right to compensatory payment

34 In the present case, the basic postulate underlying the contract between the

parties was the availability of the land which comprised the project site. The LoA

dated 28 November 2007, stated that the allotment of land was subject to the

outcome of the pending appeal before the High Court of Andhra Pradesh. The

dispute over the title of the Government of Andhra Pradesh was the subject of the
32
PART E

pending litigation. At the same time, the LoA mandated that Unitech must pay the

amount stipulated – including the purchase price of Rs.145 crores for the land as

well as the project development expenses. A failure to do so would constitute a

significant event of default resulting in a forfeiture of the earnest money deposit.

Acting on the LoA, Unitech did in fact comply with its obligation to pay, having paid a

total amount of Rs.165 crores towards the purchase price, besides the earnest

money deposit and project development expenses. The Development Agreement

which was executed between APIIC and Unitech contains specific representations to

the effect that APIIC was authorized to transfer and deliver the project site

admeasuring 350 acres on an outright sale basis. Under the Development

Agreement, APIIC was to sell and transfer the land absolutely together with its right,

title and interest, free from all encumbrances by executing a sale agreement. The

terms of the agreement were to prevail in the event of any conflict with any other

document which formed a part of the bidding process. The terms of the agreement

were placed on the pedestal of the highest priority for interpretation, as compared to

other documents, including the LoA. Under the terms of the Development

Agreement, APIIC was obligated to sell and transfer the land together with its right,

title and interest free from all encumbrances “forthwith upon payment of the last

installment of the total purchase price by the developer”. That Unitech paid the total

purchase price is not in dispute. The obligation assumed by APIIC to handover

possession together with title upon the payment of the last installment of the

purchase price unequivocally emerges from Article 3.1 and Article 4.1 of the

Development Agreement. The fulfillment of the terms of the agreement was
33
PART E

postulated on the availability of the land. Apart from the terms of the agreement

which have already been emphasized, representations in regard to the title to the

land are expressly contained in Annexure 1C of the Development Agreement which

reads as follows:

“APIIC hereby represents and warrants to the Developer and
Unitech that:

1. APIIC is absolutely seized and possessed of and is otherwise
well and sufficiently entitled to the Project site. GOAP has
free clear and marketable titled to the Project site, and that no
Encumbrance of any nature whatsoever exists in respect of
the Project site. APIIC was in possession and occupation of
the Project site until the date of execution of the Development
Agreement and that peaceful physical vacant possession and
occupation of the Project site has been handed over to the
Developer in terms of the Development Agreement. APIIC
has been duly authorized to enter into the Development
Agreement and perform all of its obligations there under….”

34
PART E

Annexure-2 to the Development Agreement sets out a list of ownership documents

which are tabulated in the following terms:

35 The consequences of default are expressly stipulated in the agreement.

Article 17 stipulates force majeure events. Article 17.2 provides for political force

majeure events comprising inter alia “direct litigation related to APIIC’s/GoAP’s title

to the project site, stay/interim/injunctive/ other orders issued by the Court…”

36 Article 14.3.4 expressly stipulates that the developer shall not be liable for the

failure to meet any of its obligations under the agreement, in the event, that it could

be attributed to a default or delay on the part of APIIC in fulfilling its

obligations. Similarly, the developer would not be held liable as a result of
35
PART E

encumbrances or title issues on any portion of the land which may have a material

adverse effect on the project or as a consequence of force majeure events.

Article14.3.1 stipulates that in the event that APIIC/Government of Andhra Pradesh

were unable to execute the sale deed in favour of the developer in respect of the

land within the time specified, APIIC shall, if so required for the developer, make

compensatory payment subject to court orders. In the event of a political force

majeure event, Unitech was, in terms of Article 17.6, solely entitled to issue a notice

of termination, if it resulted in a material adverse effect on the project, continuing for

more than nine months. In that event, APIIC was obligated to make the

compensatory payment to the developer. Compensatory payment liable to be paid in

terms of the agreement is expressly defined, including for the purposes of Article

14.3.1, to mean an amount which is the aggregate of (i) the total purchase price; and

(ii) interest calculated at the SBI-PLR on the total purchase price “from the date on

which the first payment of purchase price in respect of compensated land is

paid”. The applicable rate was also defined12 to mean the Prime Lending Rate of the

SBI, compounded annually.

37 The failure of title in the erstwhile APIIC and the Government of Andhra

Pradesh attained finality upon the decision of this Court in State of Andhra

Pradesh Through Principal Secretary v. Pratap Karan13. The basic postulate on

which the entire contract was founded stood nullified as a consequence of the failure

12
“Article 1(h)- ‘Applicable Rate’ means the prime lending rate of the State Bank of India, compounded-
annually.”
13
(2016) 2 SCC 82

36
PART E

of title. The agreement clearly provides that the ability of the Government of Andhra

Pradesh/TSIIC to convey full title to the developer forms the basis of the

contract. The failure of title entitles Unitech to claim a full refund together with

compensatory payment, as contractually defined. The claim does not raise a

disputed question of fact requiring an evidentiary determination. Both the learned

Single Judge and the Division Bench of the High Court have elaborately considered

the precedents of this Court and correctly concluded that Unitech is entitled to a

refund. The finding in regard to the entitlement of Unitech to a refund is

unexceptionable and has correctly not been called into question at the stage of the

hearing, despite the grounds which were raised in the pleadings in the proceedings

initiated under Article 136 of the Constitution by TSIIC and the State of Telangana.

APIIC, as an instrumentality of the erstwhile Government of Andhra Pradesh, invited

bids for a public project. Having invited private entrepreneurs to submit bids on

stipulated terms and conditions, it must be held down to make good its

representations. The State and its instrumentalities are duty bound to act fairly under

Article 14 of the Constitution. They cannot, even in the domain of contract, claim an

exemption from the public law duty to act fairly.14 The State and its instrumentalities

do not shed either their character or their obligation to act fairly in their dealings with

private parties in the realm of contract. Investors who respond to the representations

held out by the State while investing in public projects are legitimately entitled to

14
Indsil Hydropower v. State of Kerala, Civil Appeal Nos. 5943-5945 of 2019 (Supreme Court of India), para
33; ABL International Ltd. v. Export Credit Guarantee Corporation of India, (2004) 3 SCC 553, para 23; Central
Bank of India v. Devi Ispat Ltd
., (2010) 11 SCC 186, para 28

37
PART E

assert that the representations must be fulfilled and to enforce compliance with

duties which have been contractually assumed.

38 The Single Judge of the Andhra Pradesh High Court, in the course of the

judgment dated 23 October 2018 computed as on 30 September 2018, an amount

of Rs.660.55 crores as due and payable. Interest on the basis of the SBI-PLR was

compounded annually in terms of the provisions of the Development Agreement.

The Single Judge noted that the respondents to the writ proceedings had not

disputed (i) the dates of payment or (ii) interest at the rate of the SBI-PLR and no

material to contradict the computation was submitted. In appeal, the Division Bench

however directed that the claim for interest should be computed from 14 October

2015. This was the date on which Unitech addressed a communication seeking a

refund of the ‘compensatory payment’ following the decision of this Court on 9

October 2015 on the absence of title to the land in the Government of Andhra

Pradesh. The Division Bench has proceeded on the rationale that

(i) Unitech was placed on notice that the award of the contract was subject to the

outcome of the appeal in the High Court; and

(ii) Unitech was aware of the outcome of the first appeal yet, as a developer, it

wanted to continue with the project.

The above circumstances have no bearing on whether Unitech is entitled to a refund

of moneys from the date of initial payment. The entitlement of Unitech to a refund of

the amounts paid is embodied in the terms of the contract which envisage that a

38
PART E

default on the part of APIIC in conveying the land or the existence of political force

majeure events would furnish a valid basis for the “compensatory

payment”. Moreover, the date from which compensatory payment has to be made is

specifically provided : the Development Agreement provides that it will be “from the

date on which the first payment of project price” is made. The Division Bench was in

error in curtailing the right of Unitech to claim a refund with effect from the dates on

which the respective payments were made. Obviously, Unitech had entered into the

project since it wished to pursue it. Unitech cannot be penalized for wanting to

continue with the agreement, as APIIC navigated disputes over its claim to the land.

While Unitech was put to notice of the existence of a litigation, the Development

Agreement which stipulated an encumbrance-free handover also specified that its

covenants would supersede all other understandings and that its terms would rank

as the first, in order of interpretive priority. The judgment of the Division Bench

suffers from a clear and patent error in restricting the liability of paying interest with

effect from 14 October 2015. The liability must date back, in terms of the

Development Agreement, from the date on which the respective payments were

made by Unitech. Interest at the contractual SBI-PLR rate has to be paid to Unitech.

However, considering the facts and circumstances of this case, the conscionability

of Article 14.3.1 read with Article 1(h) of the Development Agreement stipulating

compensatory payment at the SBI-PLR, compounded annually, becomes suspect.

Clause 17 of the LoA expressly mentioned that the title of the land is lis pendens

and subject to the outcome of the proceedings pending before the Andhra Pradesh

High Court. Unitech considered this circumstance and consciously entered into the
39
PART E

Development Agreement. It continued to liaise with APIIC after an unfavorable

judgement of the Andhra Pradesh High Court and did not issue a termination notice,

until the title was conclusively denied by a judgement of this Court. A Constitution

Bench of this Court, in the case of Central Bank of India v. Ravindra15, when

considering the question of penal interest rates, had observed:

“39….. Pre-suit interest is referable to substantive law and
can be subdivided into two sub-heads: (i) where there is a
stipulation for the payment of interest at a fixed rate; and (ii)
where there is no such stipulation. If there is a stipulation for
the rate of interest, the court must allow that rate up to the
date of the suit subject to three exceptions: (i) any provision
of law applicable to moneylending transactions, or usury laws
or any other debt law governing the parties and having an
overriding effect on any stipulation for payment of interest
voluntarily entered into between the parties; (ii) if the rate is
penal, the court must award at such rate as it deems
reasonable; (iii) even if the rate is not penal the court may
reduce it if the interest is excessive and the transaction
was substantially unfair.”
(emphasis supplied)

In a similar vein, in interpreting Section 74 of the Indian Contract Act, 1872, this

Court has held that a contractually-stipulated interest rate, if found to be penal,

excessive or in terrorem can be reduced to a reasonable rate of compensation.16 In

upholding the reasoning of the Kerala High Court in full, a two judge Bench of this

Court in K P Subbarama Sastri v. KS Raghavan17 held:

15

(2002) 1 SCC 367
16
Oriental Kuries Ltd. v. Lissa, (2019) 19 SCC 732; Bhubaneshwar Development Authority v. Susanta Kumar
Mishra
, (2009) 4 SCC 684
17
(1987) 2 SCC 424

40
PART E

“5…“The question whether a particular stipulation in a
contractual agreement is in the nature of a penalty has to be
determined by the court against the background of various
relevant factors, such as the character of the transaction and
its special nature, if any, the relative situation of the parties,
the rights and obligations accruing from such a transaction
under the general law and the intention of the parties in
incorporating in the contract the particular stipulation which is
contended to be penal in nature. If on such a comprehensive
consideration, the court finds that the real purpose for which
the stipulation was incorporated in the contract was that by
reason of its burdensome or oppressive character it may
operate in terrorem over the promiser so as to drive him to
fulfil the contract,, then the provision will be held to be one by
way of penalty.”

Therefore, considering the position of Unitech-which knowingly entered into the

Development Agreement with full knowledge of the pending litigation and with an

intention to continue with the project after a delay of over seven years, up until a

decision by this Court, we find that the interest rate is payable to Unitech, without

compounding.

E.3 Apportionment of the liabilities between the instrumentalities of the

state of Andhra Pradesh and Telangana

39 This leaves the court with the last facet which pertains to the dispute inter se

between TSIIC and APIIC. The Single Judge has imposed the liability to refund on

TSIIC clarifying however, that it is “entitled to recover it from the State of Andhra

Pradesh and the APIIC, if under law they are entitled to do so”. The Division Bench

has not interfered with the above direction.

41
PART E

40 Section 68 of the Re-organization Act is comprised in Part VII which enunciates

“Provisions as to Certain Corporations”. Section 68 of the Re-organization Act

provides as follows:

“68. (1) The companies and corporations specified in the
Ninth Schedule constituted for the existing State of Andhra
Pradesh shall, on and from the appointed day, continue to
function in those areas in respect of which they were
functioning immediately before that day, subject to the
provision of this section.

(2) The assets, rights and liabilities of the companies and
corporations referred to in sub-section (1) shall be
apportioned between the successor States in the manner
provided in section 53.”

The corporations which are listed out in the IXth Schedule include APIIC which

appears at Serial No.17. Section 68(2) states that the assets, rights and liabilities of

the companies and corporations referred to in sub-Section (1) shall be re-

apportioned between the successor states in the manner provided in Section 53.

Section 53 is in the following terms:

“53. (1) The assets and liabilities relating to any commercial
or industrial undertaking of the existing State of Andhra
Pradesh, where such undertaking or part thereof is
exclusively located in, or its operations are confined to, a local
area, shall pass to the State in which that area is included on
the appointed day, irrespective of the location of its
headquarters:

Provided that where the operation of such undertaking
becomes inter-State by virtue of the provisions of Part II, the
assets and liabilities of––

(a) the operational units of the undertaking shall
be apportioned between the two successor States
on location basis; and

(b) the headquarters of such undertaking shall be
apportioned between the two successor States on
the basis of population ratio.

42

PART E

(2) Upon apportionment of the assets and liabilities, such
assets and liabilities shall be transferred in physical form on
mutual agreement or by making payment or adjustment
through any other mode as may be agreed to by the
successor States.”

41 Section 6518 allows for the successor states of Telangana and Andhra

Pradesh to agree on the manner in which the benefit or burden of any particular

asset or liability can be apportioned. Section 6619 empowers the Central

Government on a reference made, within three years from the appointed date, by

either of the successor states to order an adjustment or allocation of the liability.

Finally, to complete the narration of the statutory scheme, Section 71 is in the

following terms:

“71. Notwithstanding anything in this Part, the Central
Government may, for each of the companies specified in the
Ninth Schedule to this Act, issue directions-

(a) Regarding the division of the interests and shares of the
existing State of Andhra Pradesh in the Company between
the successor states;

(b) Requiring the reconstitution of the Board of Directors of the
Company so as to give adequate representations is the
successor States.”

18
“65. Where the successor States of Andhra Pradesh and Telangana agree that the benefit or burden of any
particular asset or liability should be apportioned between them in a manner other than that provided for in the
foregoing provisions of this Part, notwithstanding anything contained therein, the benefit or burden of that asset
or liability shall be apportioned in the manner agreed upon.”
19
“66. Where, by virtue of any of the provisions of this Part, either of the successor States of Andhra Pradesh
and Telangana becomes entitled to any property or obtains any benefits or becomes subject to any liability, and
the Central Government is of opinion, on a reference made within a period of three years from the appointed
day by either of the States, that it is just and equitable that such property or those benefits should be
transferred to, or shared with, the other successor State, or that a contribution towards that liability should be
made by the other successor State, the said property or benefits shall be allocated in such manner between the
two States, or the other State shall make to the State subject to the liability such contribution in respect thereof,
as the Central Government may, after consultation with the two State Governments, by order, determine.”

43
PART E

Section 71(a) speaks of the interests and shares of the existing State of Andhra

Pradesh in the companies specified in the IXth Schedule between the successor

States. APIIC has brought on record the certificate issued by the Managing Directors

of TSIIC and APIIC recording the auditing of assets and liabilities as on 1 June

2014. The certificate is in the following terms:

“CERTIFICATE

“This is to certify that Andhra Pradesh Industrial
Infrastructure Corporation Limited (APIIC LTD.,), Hyderabad
have got its Books of Accounts audited upto 1st June, 2014 by
M/s Jawahar and Associates, Hyderabad (Statutory Auditors)
and accordingly a) All the Assets and Liabilities as appearing
in the Balance Sheet as on 01.06.2014 have been brought on
record and have been audited and included in the Demerger
Scheme and Demerger Balance Sheet and b) the instructions
of the Special Chief Secretary (Industries and Commerce),
Government of Andhra Pradesh vide Circular No.3685/INF
(SRC)/2014 dated 29.05.2014 have been followed.

All the Assets and Liabilities were duly apportioned between
Andhra Pradesh and Telangana States as per the provisions
of Andhra Pradesh Reorganisation Act, 2014.

Further to certify that all the suggestions and advices given by
Expert Committee with respect to Demerger of Assets and
Liabilities have been complied with in formulating the final
Demerger Scheme.

             E.V. Narasimha Reddy           K.V. Satyanarayana, IAS
             Vice Chairman &                Vice Chairman &
             Managing Director (FAC)         Managing Director
             TSIIC Ltd..                     APIIC Ltd.,”




                                               44
                                                                               PART E


42     The Scheme for apportionment/demerger has also been produced by APIIC

in the course of the pleadings. Para 1 of Section 1 Part II of the Scheme is in the

following terms:

“1. Upon the coming into effect of the Scheme and with effect
from the Appointed Date and subject to this Scheme, all the
operational Units of the Demerged Undertaking (including all
the estate, assets, rights, title, interest and authorities
including accretions and appurtenances of the Demerged
Undertaking namely Cyberabad Zone, Jeedimetla Zone,
Karimnagar Zone, Patancheru Zone, Shamshabad and Moula
Ali Zone, Warangal Zone vest with the Transferee Company
and shall, subject to the provisions of the scheme in relation
to the mode of vesting and pursuant to Section 53 of the Act
and without any further act or deed, or be deemed to have
been apportioned and transferred to and vested in the
Transferee Company as a going concern so as to become as
and from the Appointed Date, the estate, assets, rights, title,
interest and authorities of the Transferee Company as
detailed in the Schedule-I”

Clause 3 provides thus:

“3(a) In respect of such of the assets and liabilities
located/held at the Headquarters of the Transferor Company
shall be apportioned between the Transferee Company and
Transferor Company on the basis of population ratio.

(b) In respect of the investments in public, private or
commercial undertaking companies held by APIIC before the
appointed date are apportioned on location basis where the
projects are located in a specific region.

(c) In respect of investments in projects having multiple units
falling within the territories of State of Andhra Pradesh and
Telangana shall be apportioned on the basis of population.”

Schedule I provides for the Zonal offices pertaining to Telangana region. Serial no.3

refers to the Shamshabad and Mauli Ali region which includes the area covered by

the project site. The land which is comprised in the project site falls exclusively

within the Telangana region as specified in the demerger scheme.

45

PART E

43 We clarify that following the course of action which has been adopted by the

learned Single Judge, we are not adjudicating finally upon the rights inter se

between TSIIC and APIIC. TSIIC shall refund the amounts due and payable to

Unitech in terms of the present judgment. TSIIC would be at liberty to pursue its

rights and remedies in accordance with law over its claim for apportionment on

which, we express no final opinion.




                                        46
                                                                                      PART F


F.         Summation



44         TSIIC and the State of Telangana have brought to our notice that the

Development Agreement, on the basis of which Unitech has sought to avail its

contractual remedy has not been registered or assessed to stamp duty. Under

Article 3.1 of the Development Agreement, the obligation of paying registration fees

and stamp duty is on Unitech. It is well-settled law that the Stamp Act is a fiscal

measure enacted to secure the revenue for the State, and not to arm the opponent

with a weapon of technicality.20 Unitech’s claim to compensatory payment cannot be

defeated on the sole ground of the payment of stamp duty. The Development

Agreement shall have to be impounded and be presented to the Chief Controlling

Revenue Authority in the State of Telangana for assessment of stamp duty and to

the competent authority for registration. The assessment shall be completed within

thirty days. The appropriate stamp duty and registration charges liable to be paid in

terms of the determination shall be paid by TSIIC and be deducted from the refund

due and payable to Unitech under the terms of this order.

45 For the above reasons, the appeals shall stand disposed of in the following

terms:

(i) The Development Agreement stands impounded and shall be forwarded by

TSIIC within two weeks to the competent authority for registration and for

assessment of stamp duty. The assessment to stamp duty and formalities for

registration shall be completed within one month. The amount payable
20
Hindustan Steel Limited v. Dilip Construction Company, (1969) 1 SCC 597 para 7

47
PART F

towards stamp duty, penalty (if any) and registration charges shall be paid

initially by TSIIC into the account of the competent authority within two weeks

of the determination and shall be adjusted against the refund payable by

TSIIC to Unitech;

(ii) The appeal filed by Unitech, arising out of SLP(C) No 9019 of 2019 is

allowed in part by setting aside the direction of the Division Bench of the High

Court which confined the liability to pay interest only with effect from 14

October 2015;

(iii) Unitech shall be entitled to a refund of an amount of Rs.165 crores together

with interest at the SBI-PLR commencing from the respective dates of

payment, computed in accordance with the provisions of the Development

Agreement (except for compounding);

(iv) The amount which has been deposited in the Registry of this Court in

pursuance of the interim order shall be disbursed to Unitech together with

accrued interest. The balance due and payable under the terms of this

judgment shall be refunded by TSIIC to Unitech within two months from the

receipt of a certified copy of this judgment; and

(v) In terms of the directions of the Single Judge of the High Court, TSIIC will be

at liberty to pursue its remedies for apportionment in relation to APIIC in

accordance with law. No opinion is expressed on the merits or tenability of the

claim for apportionment asserted by TSIIC.

48
PART F

46 The appeals arising out of the Special Leave Petitions filed by the State of

Telangana and TSIIC shall also stand disposed of in terms of the present judgment.

There shall be no order as to costs.

47 Pending application(s), if any, shall stand disposed of.

…….………….…………………………………………J.
[Dr Dhananjaya Y Chandrachud]

…….…………………………………………………….J.
[MR Shah]
New Delhi;

February 17, 2021.

49



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