Supreme Court: In a batch of petitions relating to disbursement of funds by banks to builders-cum-developers through subvention schemes for various housing development projects in Noida, Greater Noida, Gurugram, and other nearby areas, the Division Bench of Surya Kant and N. Kotiswar Singh, JJ. stated that there was blatant disregard and ignorance of the Court’s directions by the banks and builders, which hinted towards a possible collusion between the builders-cum-developers and the banks/financial institutions. Hence, the Court directed the Standing Counsel for the Central Bureau of Investigation (‘CBI’) to remain present before the Court on the next date of hearing to constitute a SIT and sought explanation as to why the CBI should not register a case and then proceed to investigate the nexus between the banks and the builders
Background
There are three parties to the subvention schemes — the aggrieved homebuyers, the builders-cum-developers, and the banks/financial institutions. The petitioners before the Court are aggrieved homebuyers. All the aggrieved homebuyers purchased units in some development projects launched by the builders-cum-developers. Through the subvention scheme, the builders-cum-developers advertised that they would pay the EMI/pre-EMI of the loans taken by the homebuyers to purchase the said units in their development projects, till the specified cut-off date or till the date of possession, depending on the terms of each tripartite agreement. Hence, homebuyers obtained loans from the respondent-banks.
In furtherance of these tripartite agreements, the banks disbursed majority of the loan amounts to the builders-cum-developers. In 2018 and 2019, when the builders-cum-developers defaulted on the required EMI/pre-EMI payments, the banks began to demand payments from the homebuyers. However, the homebuyers had not yet received possession of their purchased units. The development projects were still under construction, incomplete, or had not even begun construction till then. Many of these projects were incomplete and to this day, most homebuyers were not granted possession of their units. In 2020, Corporate Insolvency Resolution Process (‘CIRP’) proceedings commenced under the Insolvency and Bankruptcy Code, 2016 against the builders-cum-developers, before various National Company Law Tribunals.
Aggrieved homebuyers approached the Delhi High Court for a writ of mandamus, inter alia, directing, among others: (i) the banks to charge EMI/pre-EMI payments from the builders-cum-developers, not the homebuyers; (ii) to refund the already recovered amount to the homebuyers and recover it from the builders-cum-developers; and (iii) the RBI to take strict action against the banks. Parallelly, some homebuyers approached the Real Estate Regulatory Authorities (‘RERA’) and various consumer fora for relief. The High Court, vide a common judgment dated 14-03-2022, dismissed the writ petitions owing to the alternate remedy available before the RERA.
Hence, the present petitions. The homebuyers alleged that, since the subject matter of the writ petitions concerned public interest and thousands of homebuyers, the writ petitions ought not to have been dismissed by the High Court. The homebuyers’ case was that almost 70-80% of the loan amounts were disbursed by the banks to the builders-cum-developers as ‘first tranche,’ despite project milestones not being achieved. The banks and financial institutions violated several provisions of the 2013 RBI Guidelines when disbursing the amounts as the disbursal was done without any form of due diligence on behalf of the banks.
Court’s Order dated 05-11-2024
The Court directed the homebuyers, builders-cum-developers, and banks/financial institutions to furnish the following information by way of compliance affidavits:
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The status and details of the payments made by the builder-cum-developers to the financial institutions or such payments made by the home-buyers to the financial institutions/builder-cum-developers.
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The date of offering possession to the home-buyers, where the project is stated to have been completed.
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The current status of completion of the project, including the details of the Completion Certificate and other statutory certificates granted by the prescribed authorities, along with details of the possession given or offered to the home-buyers.
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The status of recovery from the home-buyers, namely, whether they have made EMI payments to the banks or not.
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The amenities advertised by the builder-cum developers at the time of launching the project and the status re: completion thereof.
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The status as to whether the builder-cum developers has undergone CIRP (under IBC) or any other coercive or non-coercive recovery procedure, and the stage of such proceedings.
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Whether the home-buyers have received any relief or remedial order from the statutory authorities like RERA. If so, the details of such orders.
However, the said order was not complied with, the Court granted another opportunity to the banks/financial institutions and builders-cum-developers to file their compliance affidavits within four weeks from 07-01-2025.
Decision
The Court noted that out of roughly 40 builders-cum-developers and roughly 30 banks/financial institutions, only 9 banks/financial institutions and 5 builders-cum-developers filed their compliance affidavits.
“This blatant disregard and ignorance of the Court’s directions, coupled with their reluctance in appropriately assisting the Court, hints towards a possible collusion between the builders-cum-developers and the banks/financial institutions.”
Hence, the considered it necessary to constitute a Special Investigation Team (‘SIT’) to uncover the nexus between the banks/financial institutions and the builders-cum-developers with respect to the development projects where the homebuyers have paid substantial amounts and where the development projects have not even been launched, have not completed construction, or have not begun construction.
The Court also directed the Standing Counsel for the CBI to remain present before the Court on the next date of hearing to constitute a SIT. The Court also sought explanation as to why the CBI should not register a case and then proceed to investigate the nexus between the banks and the builders.
Meanwhile, the Court clarified that the proceedings before the Debt Recovery Tribunals or any other Tribunal may continue. However, no recovery certificate shall be executed against the homebuyers.
The matter has been further listed for hearing on 18-03-2025.
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