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2020 DIGILAW 225 (SC)

Bhupinder Singh v. Unitech Ltd.

2020-02-10

D.Y.CHANDRACHUD, M.R.SHAH

body2020
ORDER : 1. Mr. P.S. Patwalia and Mr. Pinaki Mishra, learned senior counsel submitted before this Court that they have been authorized to appear on behalf of the newly constituted Board of Directors of Unitech Limited. The Board of Directors has been constituted by the Union Government as already noted in the previous order of this Court. Subsequently, on further reflection, both Mr. P.S. Patwalia and Mr. Pinaki Mishra, learned senior counsel have requested the Court that they may be permitted to desist from appearing for the newly constituted Board. Having regard to the wider issues of public interest involved and since the Board has been constituted pursuant to the intervention of the Union Government in the public interest more specifically of the home buyers, we have requested Mr. Tushar Mehta, learned Solicitor General to assist the Court on behalf of the newly constituted Board of Directors. 2. The learned Attorney General for India has been assisting the Court on behalf of the Union of India. Ms. Madhavi Divan, learned Additional Solicitor General has submitted before the Court that the learned Attorney General is engaged elsewhere today and she would be assisting him. 3. We clarify that all the decisions which are to be taken in respect of the management of the business and projects of Unitech Limited shall be taken collectively by the Board of Directors in meetings convened for that purpose. In other words, decisions will not be taken by any individual member of the Board of Directors, without the approval of the Board, in a meeting convened for that purpose. This will also apply to the Chairman and Managing Director who is directed to convene a meeting of the Board of Directors expeditiously, if he has not already done so. The Union of India shall formerly notify the constitution of the Board of Directors as approved in the previous order of this Court within one week, if not already done. 4. A status report dated 10 February 2020 has been submitted by the Amicus Curiae. Having considered the report, we issue the following directions: (i) Refund of FD Holders: On 12 December 2019, this Court allowed the refunds to FD holders who are senior citizens aged 60 years and above to be proceeded with. Ten per cent of the amount deposited with the Registry at that time (Rs. 17.4 crores) was allocated for that purpose. Having considered the report, we issue the following directions: (i) Refund of FD Holders: On 12 December 2019, this Court allowed the refunds to FD holders who are senior citizens aged 60 years and above to be proceeded with. Ten per cent of the amount deposited with the Registry at that time (Rs. 17.4 crores) was allocated for that purpose. Having regard to the number of FD holders who have registered themselves on the web portal, we accede to the request made in the status report and direct that a further sum of Rs. 30 crores be allocated for distribution among the FD holders. This would represent ten per cent of Rs. 300 crores which has been deposited in the meantime. The additional amount of Rs. 30 crores shall also be disbursed to FD holders of the age group of 60 years and above in terms of the earlier directions of this Court. (ii) Ex-employees: The Amicus Curiae has apprised the Court of the fact that the entire amount towards (i) salary; (ii) gratuity; (iii) pension and (iv) superannuation payments, is being disbursed on a pro rata basis. Provident Fund payments are being refunded in entirety. (iii) IL&FS (Crl. M.P. Nos. 106596 and 106597 of 2019: The status report of the Amicus Curiae indicates that all the properties which were mortgaged to IL&FS are part of the project Uniworld City in Sectors 97, 106 and 107 of Greater Mohali, Punjab. Learned counsel appearing on behalf of IL&FS has submitted that there is no allottee as such of the above lands. At this stage, since the newly constituted Board of Directors is preparing a resolution plan, we are only inclined to observe that IL&FS will continue to exercise the lien as a mortgagee, but this shall be subject to the final orders that may be passed by this Court after considering the resolution plan to be submitted by the Board of Directors. (iv) Bangalore Land Sale: The Bangalore land sale has been dealt with in the previous order of this Court where a notice was issued to M/s Devas Global LLP to deposit the balance amount of Rs. 52 crores representing the share of Unitech Limited, together with interest at the rate of twelve per cent per annum within four weeks. (iv) Bangalore Land Sale: The Bangalore land sale has been dealt with in the previous order of this Court where a notice was issued to M/s Devas Global LLP to deposit the balance amount of Rs. 52 crores representing the share of Unitech Limited, together with interest at the rate of twelve per cent per annum within four weeks. In the meantime, M/s Devas Global LLP was restrained from creating third party rights on the lands already registered from Unitech Limited and two acres of access land from Mr. Naresh Kumar Kempanna. 5. Mr. Sajan Poovayya, learned senior counsel appears on behalf of the M/s Devas Global LLP while Mr. Huzefa A Ahmadi, learned senior counsel is appearing on behalf of Mr. Naresh Kumar Kempanna. 6. Justice Dhingra Committee has submitted a status report indicating the following position: “26 acres of unencumbered land was held by Unitech Limited in Bangalore and the same was directed to be monetized under the purview of this Committee. A MOU dated 02.01.2018 was signed between M/s Devas Global LLP and Col. Kheira (Mr. Naresh and Unitech being the confirming parties) for sale of the said 26 acres. The same MOU was placed before the Hon’ble Supreme Court and approved on 05.07.2018. As per the MOU, M/s Devas Global LLP has to pay Rs. 7.80 crores per acre in totality wherein Unitech’s share was Rs. 4.00 crores per acre. Upon conversion of 12 acres land from agricultural to residential, M/s Devas executed conveyance deed on 25.07.2018 and paid the equivalent amount of INR 48 crore as per the MOU to the Registry of the Hon’ble Supreme Court. As on date out of the balance 14 acres, 10.5 acres have already been converted and is ready for registration. After a joint meeting between Unitech, Devas, Col. Kheira, Naresh and the undersigned held at Bangalore on 04.10.2019, Devas made an offer to pay Rs. 4 crore per acre (which was the amount due to Unitech) against agreed price of Rs. 7.80 crore per acre. The 12 acres of land already purchased by M/s. Devas’s, the balance land parcel will not be of any interest to anyone. Kheira, Naresh and the undersigned held at Bangalore on 04.10.2019, Devas made an offer to pay Rs. 4 crore per acre (which was the amount due to Unitech) against agreed price of Rs. 7.80 crore per acre. The 12 acres of land already purchased by M/s. Devas’s, the balance land parcel will not be of any interest to anyone. Under these circumstances, the Committee had no choice but to direct M/s. Devas Global LLP, the purchaser of the front portion along with access land, to deposit INR 52 crores with the Registry of the Hon’ble Supreme Court as their share of purchase under the MOU. If Devas fails to deposit the payment within the stipulated time then the Committee be permitted to re-auction remaining part of 26 acres and Devas be directed to give right of way to the new purchaser.” 7. The status report of Justice Dhingra Committee indicates that upon conversion of 12 acres of land from agricultural to residential, M/s Devas Global LLP executed a deed of conveyance on 25 July 2018 and paid the equivalent amount of Rs. 48 crores in accordance with its MOU as a part of the share of Unitech Limited. 8. As on date, out of the balance of 14 acres, 10.5 acres of land has been converted with change of land use and land conversion having been approved. We accordingly order and direct that the registration formalities for transfer of 10.5 acres of land shall be completed within a period of four weeks from today. M/s Devas Global LLP undertakes to hand over a demand draft representing the share of Unitech Limited for the area ad-measuring 10.5 acres to the Justice Dhingra Committee. The demand draft shall be drawn in the name of the Registrar, Supreme Court of India and upon receipt, Justice Dhingra Committee shall transmit it over to the Amicus Curiae for being deposited in the Registry of this Court. M/s Devas Global LLP has also undertaken that together with the payment of the share of Unitech Limited, it shall make due payment of the respective shares to the other parties in terms of the MOU. 9. Insofar as the balance of the land is concerned, Mr. Huzefa A Ahmadi, learned senior counsel has, on instructions, stated that necessary permissions that have already been applied for and that Mr. 9. Insofar as the balance of the land is concerned, Mr. Huzefa A Ahmadi, learned senior counsel has, on instructions, stated that necessary permissions that have already been applied for and that Mr. Naresh Kumar Kempanna undertakes to follow up with the Government of Karnataka so that the permissions are issued expeditiously. The Government of Karnataka shall process the application which has been submitted by Mr. Naresh Kumar Kempanna for the grant of approvals expeditiously. 10. Mr. Sajan Poovayya, learned senior counsel has submitted that M/s Devas Global LLP undertakes to deposit the respective shares in respect of the balance amounts in terms of the MOU within a period of four weeks of all necessary permissions being intimated by Mr. Naresh Kumar Kempanna to M/s Devas Global LLP. The payment would be made at the time of registration of the deed of conveyance. The payment including the share of Unitech Limited shall be effected in the same manner as previously within a period of six weeks. 11. The status report submitted by Justice Dhingra Committee has indicated the position in respect of (i) projects completed in Phase I and (ii) projects which are being undertaken in Phase II. In respect of Phase II projects which are under construction, the progress of the work has been indicated in a tabular chart. The Committee has requested the Court to release an amount of Rs. 6.75 crores which is towards bills payable for the work done to the vendors. In the absence of payment, it has been stated that the balance work has come to a standstill, though many towers are on the verge of completion. 12. The Amicus Curiae has submitted that a three stage verification is carried out by the Committee of the bills of vendors: verification is done by Architect which is followed by an actual verification, both by the Architect and the Committee at site. In this backdrop, we deem it appropriate and proper to grant permission to the Registry of this Court for release of an amount of Rs. 6.75 crores to Justice Dhingra Committee in terms of its prayer for meeting the outstanding payments of the concerned vendors in respect of the construction which is being carried out in Phase II projects. 13. In this backdrop, we deem it appropriate and proper to grant permission to the Registry of this Court for release of an amount of Rs. 6.75 crores to Justice Dhingra Committee in terms of its prayer for meeting the outstanding payments of the concerned vendors in respect of the construction which is being carried out in Phase II projects. 13. We also request Justice Dhingra Committee to consider completion of those projects in the tabular chart where the work is completed to the extent of ninety per cent and above on priority so that possession can be handed over to the allottees expeditiously. The Committee has also suggested that some allottees have approached it for handing over possession on ‘as is and where is basis’ so that the allottees may get the balance work completed on their own subject to adjustment of costs against the dues. Permission to do so is granted to the Committee. 14. The Amicus Curiae is requested to upload the status reports as well as the reports which are being submitted by Justice Dhingra Committee on the web portal for information of all the concerned home buyers and the other stake holders. 15. During the course of hearing, a number of suggestions have come from the home buyers including from those who have invested in projects which have been completely stalled and where the home buyers are senior citizens. A suggestion has come before the Court to the effect as in the case of FD holders where a priority was carved out by the Court for senior citizens, a similar dispensation may be implemented in the case of home buyers of stalled projects or senior citizens as the case may be. 16. Mr. Pawanshree Agarwal, learned Amicus Curiae has stated that he has been engaging with the new Board of Directors so as to apprise them in the entirety about the status of the projects and the present litigation. We permit the Amicus Curiae to fully apprise the Board of Directors on all aspects so that the Board can form a holistic prospective approach in preparing the resolution plan. 17. List the matter after four weeks. 18. The Delhi Development Authority is granted two weeks’ time to submit its affidavit in the meantime.