bar & bench ( ) · pdf filecase of jaypee infrastructure only pertains to a financial...

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. OF 2017

[under Article 32 of the Constitution of India]

IN THE MATTER OF :

Chitra Sharma & Ors. … Petitioners

Versus

Union of India & Ors … Respondents

With

IA No. OF 2017

(APPLICATION FOR STAY )

PAPER BOOK

(FOR INDEX PLEASE SEE INSIDE)

ADVOCATE FOR THE PETITIONERS: ASHWARYA SINHA

Bar & Bench (www.barandbench.com)

I N D E X

S.N Particulars of document Page no. of part to which it belongs

Remarks

Part I

(contents of paper book)

Part II

(contents of file alone)

1 Court fee A

2 Listing Proforma A1-A2 A1-A2

3 Cover Page of Paper Book A3

4 Index of Record Proceedings A4

5 Limitation Report prepared by

the Registry

A5

6 Defect List A6

7 Note Sheet NS 1 to

8 Synopsis & List of Dates B – P

9 Writ Petition with Affidavit 1 – 38

10 Appendix

Art. 14,19,21,32 of COI

Sec. 2, 14 of CP Act 1986

Sec. 4,7,14, 36 of IBC 2016

39 -40

41-42

43-44

11 Annexure- P1

True copy of one of the provisional allotment letter dated 31.5.2010 with standard terms and agreement executed at the time of provisional allotment of apartment between the buyers and Respondent nos. 3 and 4

45-56

12 Annexure- P2 True copy of the order dated

57-66


23.1.2017 in CP No. (ISB)-03 (PB)/2017 passed by National Company Law Tribunal, New Delhi

13 Annexure- P3

True copy of order dated 20.2.2017 in CP No. (IB)-10 (PB)/2017 passed by National Company Law Tribunal, New Delhi

67-73

14 Annexure-P4 True copy of one such order dated 17.7.2017 of NCDRC, New Delhi in Consumer Case No. 166/ 2017

74-84

15 Annexure-P5 True copy of the order dated 9.8.2017 passed by the National Company Law Tribunal, Allahabad Bench in CP No. (IB)/77/ALD/2017

85-88

16 Annexure-P6

True copy of Form B dated nil issued by ICB for submission of proof of claim

89-91

17 Annexure-P7

True copy of Form C dated nil issued by ICB for submission of proof of claim

92-94

18 Annexure-P8

True copy of Form F dated nil issued by ICB for submission of proof of claim

95-96

19 Annexure-P9

True copy of the Frequently Asked Questions (FAQs) dated 17.8.2017

97-100


20 Annexure-P10

True copy of the News item of Business Standard dated 18.8.2017

101-102

21 Application for Stay 103-107

22 F/M

23 V/A


PROFORMA FOR FIRST LISTING

SECTION: X

The case pertains to (Please tick/ check the correct box):

� Central Act: (Title): COI

� Section: Sec. 14,19,21 & 32

� Central Rule : (Title) NA

� Rule No(s): NA

� State Act: (Title) NA

� Section: NA

� State Rule: (Title) NA

� Rule No(s): NA

� Impugned Interim Order: (Date) NA

� Impugned Final Order/ Decree: (Date) NA

� High Court : (Name) NA

� Names of Judges: NA

� Tribunal/ Authority: (Name) NA

1. Nature of matter: Civil Criminal

2. a) Petitioner/ appellant No. 1: Chitra Sharma & Ors

b) e-mail ID: [email protected]

c) Mobile phone number: 9818911510

3. a) Respondent No.1: UOI & Ors

b) e-mail ID: NA

c) Mobile phone number: NA

4. a) Main category classification: 08 PIL matters

b) Sub classification: 0812 Others

5. Not to be listed before: NA

6. Similar/ Pending matter: NA


7. Criminal Matters: NA

a) Whether accused/ convict has surrendered: Yes No

b) FIR No. NA c) Police Station: NA

d) Sentence Awarded: NA e) Sentence Undergone: NA

8. Land Acquisition Matters: NA

a) Date of Section 4 notification: b) Date of Section 6 notification: c) Date of Section 17 notification:

9. Tax Matters: State the tax effect: NA

10. Special Category (first petitioner/ appellant only): NA

� Senior Citizen ! 65 years

� SC/ST

� Woman/ Child

� Disabled

� Legal Aid case

� In Custody

11. Vehicle Number (in case of Motor Accident Claim matters): NA

12. Decided cases with citation: NA

Date: 21.8.2017

AOR for Appellant (s)/ Appellant (s)

Name: Ashwarya Sinha

Registration No.: 2084

Email: [email protected]

Mob: 9818911510


SYNOPSIS & LIST OF DATES

That the present Petition, in public interest, is being preferred

invoking the extraordinary power of this Hon’ble Court under Article

32 of the Constitution of India, seeking protection of the interests of

thousands of home buyers in the Country, who have invested their

hard earned life savings, to fulfil their dream of owning a house. It is

respectfully submitted that the regime brought about by the

Insolvency and Bankruptcy Code, 2016 and the order as have been

passed by the Allahabad Bench of the National Company Law

Tribunal in the Petition titled ‘IDBI Bank vs. Jaypee Infratech Limited’

in CP (IB) 77/ALD/2017, have left the flat buyers remediless. The

actions as have been taken under the code has led to a situation,

wherein the lifelong savings of the flat owners will go to waste with no

prospects of them recovering the same, if their interests are not

saved by this Hon’ble Court.

The gravity of the issue, the magnitude of issue involving nearly 30

thousand flat buyers living throughout the country and abroad has

compelled them to file the present PIL under Article 32 of the

Constitution as they are being non suited and rendered remediless. It

also be discriminatory as other flat buyers of other projects can still

invoke Consumer Protection Act in case of any deficiency of service.

The Ministry of Finance & Corporate Affairs i.e. Respondent No.1 & 2

action of introducing Section 14 of the Insolvency and Bankruptcy

Code, 2016 (IBC) is not only unjust, unfair and unreasonable but at


the same time is arbitrary and illegal and thus is in violation of Article

14 and 21 of the Constitution of India. The aforesaid Section 14

renders the PIL petitioners who have moved in a representative

capacity remediless which is impermissible in law as settled in

catena of decisions. The gravity of the matter is further reflected by

the fact the several pending litigation before the consumer forums

established under Consumer Protection Act, 1986 will do not proceed

in view of the moratorium declared by National Company Law

Tribunal (NCLT) dated 09.08.2017. The aforesaid provisions as well

as the order is on the face of it illegal, arbitrary and is in violation of

Article 14, 19 (1) (g), 21 and is also against the settled law. The

respondents have further under Regulation 9A of the Insolvency and

Bankruptcy Board of India.

Forms ‘B’ and ‘C’ on 10.08.2017 followed by Form ‘F’ on 14.08.2017

making it mandatory to be filled up and signed on affidavit by all the

flat owners/ buyers on or before 24.08.2017. The aforesaid forms are

in compliance with statutory time period of 14 days which expires on

24.08.2017.The statutory, legal and vested rights of a consumer

defined under Section 2 (d) of the Consumer Protection Act, 1986

which is a parliamentary enactment cannot be taken away by a

moratorium. It mandates a declaration and forces the aggrieved flat

buyers/owners as consumers to declare themselves as creditors so

that they can be subjected to the liquidation proceedingsw

undertaken by the Official Liquidator in compliance of the NCLT

order dated 09.08.2017. It is relevant to point that the liquidator


appointed by the NCLT himself in his answer to question nos 2 and

20 states as under:

2. Flat buyers may file their claim in form “F’

20. “All cases against JIL for enforcement or recovery come to a standstill. Please refer to Section 14 of IBC.”

It is pertinent to note that pursuant to the order as passed by the

NCLT, Allahabad Bench, initiating the proceedings against Jaypee

Infrastructure Limited, Forms B and C were issued by IRP which

expressly related to financial creditors and operational creditors.

Thereafter some clarifications were issued by the IRP stating that the

home owners can fill these forms. The said statement was made even

though the said forms do not include the flat buyers at all. The chaos

and ambiguity is further amplified by the fact that, another form i.e.

Form F was introduced wherein the Ministry of Corporate Affairs

made a statement that the flat buyers can fill the said forms.

It is submitted that the forms as have been issued by the IRP in the

case of Jaypee Infrastructure only pertains to a financial creditor or

an Operational Creditor. The case of the flat owners like the

Petitioners herein are not covered by any of the said forms, since

admittedly they are not financial creditors and they have been held

not to be operational creditors by the NCLAT.

It has been held by the NCLAT vide its order passed in Col. Vinod

Awasthy v. AMR Infrastructure Limited that the Flat Buyers are not

covered within the definition of an operational creditor. It also holds

that the remedy lies elsewhere. Thus a very conflicting situation has


arisen which can only be remedied and clarified by this Hon’ble

Court.

It is submitted that the aforesaid facts clearly establish, that the

provisions of the Code and the actions taken therein, have left the

petitioners herein and similarly situated persons, in a very helpless

situation and also without any remedy.

It is respectfully submitted that the IBC, 2016, is not only forcing the

home buyers to submit themselves to the jurisdiction of the IBC, even

though the same in its current form does not take care of their

interests, it further has deprived them of the remedy as was available

to them under the Consumer Protection Act.

It is submitted that it is common knowledge that the Housing Sector of

the country is blighted with inordinate delays in completion of the

projects, owing to the large scale mismanagement of the funds as

received by the construction companies from the flat buyers. It is

respectfully submitted that this Hon’ble Court on various occasions

have taken note of the plight of the “home buyers” and have directed

strict actions to be taken against some of constructions companies,

along with order of refund of the amount as received from the buyers.

It is submitted that till date the interests of the flat buyers have been

protected by this Court and the forums across the country, in

exercise of the powers conferred on them under the Consumer

Protection Act, 1986. It is respectfully submitted that the Consumer

Protect Act, 1986 provides an efficacious remedy to the Flat Buyers in


case of a default by a Company which is responsible for the

construction of the flats bought by the said buyer. It is submitted that

this Hon’ble Court has time and again held that the Consumer

Protection Act, 1986 is a benevolent piece of legislation and the same

is required to be interpreted as broadly as possible, in order to

further the object of the Act.

However the effect of the provisions of the Insolvency and

Bankruptcy Code, 2016 are that the said remedy has been made

subject to the provisions of the Code, and only upon the proceedings

under the Code reaching its logical end, can the remedy provided

under the Consumer Protection be availed.

It is respectfully submitted that Section 14 of the Act provides as

follows :-

“14. (1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely:—

(a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator.


(4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process: Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be.”

Furthermore Section 238 of the Code states that the provisions of the

Code will have an overriding effect on any law which is in effect in

India. It is respectfully submitted that the said provisions abridges

the rights of the flay buyers, as have been provided under the

Consumer Protection Act. It is respectfully submitted that the ill

effects of the Code, as has been enacted by the Legislature, have

already been felt by the Consumers in light of the initiation of the

insolvency resolution against one of the Leading Housing Sector

companies, i.e. Jaypee Infrastructure Limited, which is a subsidiary of

Jaiprakash Associates.

It is submitted that Jaiprakash Infrastructure Limited since it’s

inception in 2007 has announced major real estate development

projects and therein proposed 3 elaborate residential townships

namely in NCR Region namely Jaypee Greens Noida, Jaypee Greens

Greater Noida, Jaypee Greens Sports City. All three residential

townships combined account for a massive 6500 acres. Jaypee

Greens Noida ‘Wishtown’ alone boasts of about 1063 acres with 24

projects along with residential and commercial plots and additional

facilities like hospital, shopping arcade, schools, golf course, gym

etc. The Respondent no 2 had proposed to build 32,000 flats

excluding some plot properties across various projects in the Wish


Town city spread across 5 sectors in Noida along the Yamuna

Expressway. Flats, penthouses, villas and plots were all part of these

projects. However so far only about 6500 flats have been made ready

for possession and out of the proposed 305 towers only 55 towers are

complete. The said apartments were to be ready by the year 2013,

however the Respondent no 2 has since then been unilaterally

extending the time for completion.

It is respectfully submitted that upon initiation of the Insolvency

Resolution Process, an order has been passed by the NCLT under

Section 14 of the Code, vide which all the proceedings have been

stayed. The effect of the same is that not only the flat buyers are

prohibited from initiating any proceedings against Jaypee

Infrastructure before the Consumer Forums, however even the

proceedings which have already been initiated will be stayed. It is

pertinent to note that the order as passed by the Ld. NCLT will also

affect those persons who already have a final order in their favour

and are in the process of getting the said order executed. However

even the said buyers, who have been held to be exploited by the

Construction Company, have been pre-empted from receiving their

claims, which have been held to be legitimate by a Court of Law.

It is furthermore submitted that the legitimate apprehension of the

thousands of home buyers is that if the Insolvency Resolution Process

will not be successful, then in the said case the process of liquidation

of the Company will be initiated. If the interests of the Flat Buyers will

not be protected by this Hon’ble Court, then the flat buyers will be


the biggest sufferers of the whole process. The said apprehension of

the buyers further stems from the provisions as have been

incorporated under the Code.

It is submitted that the conjoint reading of the provisions of the Code,

i.e. Section 33, 36 and 53, make the followings facts clear, that if the

no resolution plan is arrived at during the proceedings then the

Construction Company will go into liquidation. Thereafter all the

assets of the Company will form the liquidation estate which will be

sold off to clear the dues of the creditors in the order as provided

under Section 53. The said provision gives preference to the interests

of the Secured Creditor over the “unsecured creditors” like the

petitioners and similarly situated persons.

It is submitted that the interests of the Petitioners herein and

thousands of similarly situated persons are affected since, the flats for

which they have already paid nearly 90 to 95% of the Value will be

counted as an Asset of the Company, since the title over the said flats

have not yet been transferred in their name.

It is respectfully submitted that upon initiation of the Liquidation

process, the distribution of the money will only be made to the

persons who have filed a claim form before the IRP.

The home buyers have been left with only two options, i.e. either to

fill the form as an unsecured creditor and in the eventuality of

liquidation, receive whatever amount is left after clearing the dues of

the operational and financial creditor or do not subject itself to


jurisdiction of the IBC and wait for the outcome of the Insolvency

Proceedings. It is pertinent to note that in case the Home Buyers do

not fill the claim form and the company goes into liquidation, all their

hard earned money, will literally go into the pockets of the financial

and corporate liquidator, since the remedy as available under the

Consumer Protection Act, 1986 has been made subject to the

proceedings under the Insolvency and Bankruptcy Code, 2016.

It is submitted that the primary point for consideration before this

Hon’ble Court is that can the consumers be forced to subject

themselves to the ambit of IBC, 2016, which does not even recognize

them as a “secured creditor” and merely reduces them to the

category of unsecured creditors who will receive peanuts on their

investments, in the eventuality of liquidation.

It is submitted that the fact that the consumers have paid 95% of the

price as demanded by JIL as early as 2011-12, does not make the

petitioners and similarly situated persons any less of an owner of the

flats. It is submitted that the remaining payment was to be made upon

handing over of the possession and the same has been delayed by

JIL. It is pertinent to note that the IRP appointed by the NCLT,

released a statement that the registered owners of the flats will be

outside the purview of the IBC.

It is submitted that therefore it is clear, that as per current

implementation of the provisions of the code, the homeowners who

have paid 100% of the price of the flat are owners, will be outside the


purview of the IBC, however those persons who have not been able

to take possession due to the default and delay on the part of the

construction company, will be strangely relegated to the class of an

“unsecured creditor”.

It is submitted that it is admitted fact that 95% of the payments have

been received by the construction companies, and in effect a charge

has been created on the flats in question. It is therefore submitted

that Third Party Rights have been created in favour of the Petitioner

and similarly situated individuals. Therefore the flats in which charge

has been created in favour of a buyer cannot be made subject to the

liquidation process.

It is submitted that even though the insolvency proceedings as

initiated against JIL has not led to liquidation, however there is a

legitimate apprehension in the minds of the petitioners and similarly

situated persons, that the insolvency code, in its present form does

not secure their interests.

It is submitted that this Hon’ble Court in the case of Adi Saiva

Sivachariyargal Nala Sangam v. State of T.N., reported in (2016) 2

SCC 725 has held as follows :-

“12. It is difficult for us to accept the contentions advanced on behalf of the respondents with regard to the maintainability of writ petitions on two counts. Firstly, it is difficult to appreciate as to why the petitioners should be non-suited at the threshold merely because G.O. dated 23-5-2006 has not been given effect to by actual orders of the State Government. The institution of a writ proceeding need not await actual prejudice and adverse effect and consequence. An apprehension of such harm, if the same is well founded, can furnish a cause of action for moving the Court. The argument that the present writ petition is founded on a cause relating to appointment in a public office and hence not entertainable as a public interest litigation would be too simplistic a solution to adopt to answer the


issues that have been highlighted which concerns the religious faith and practice of a large number of citizens of the country and raises claims of century-old traditions and usage having the force of law. The above is the second ground, namely, the gravity of the issues that arise, that impel us to make an attempt to answer the issues raised and arising in the writ petitions for determination on the merits thereof.”

It is submitted that provisions of the IBC and its implementation

therefore has led to violation of the Fundamental Rights of the

Petitioners herein and similarly situated persons, and therefore the

present proceedings under Article 32 of the Constitution of India are

maintainable.

LIST OF DATES

1986 The Consumer Protection Act, 1986 was enacted with a

view to provide for better protection of the interests of

consumers and for the purpose, to make provision for

the establishment of consumer councils and other

authorities for the settlement of consumer disputes and

for the matter connected therewith. Among the many

objects and reasons for the enactment of the act, the

most essential object was to promote the right of the

consumers to be heard and to be assured that

consumer interests will receive due consideration at

appropriate forums; and the right of consumers to seek

redressal against unfair trade practices or

unscrupulous exploitation of consumers.

1986 The Respondent No. 4 company formed by

amalgamation of Jaiprakash Associates Pvt. Ltd. with

Jaypee Rewa Cement Ltd.


5.4.2007 The Respondent No. 3 was incorporated as a Special

Purpose Vehicle for the development of Yamuna

Expressway and related real estate projects by the

Respondent No. 4 ‘Jaiprakash Associate Limited’.

2010 Various residential hi-tech townships proposed by the

Respondent Nos. 3 and 4 in the NCR region consisting

of 2 bhk/3 bhk apartment units with added luxurious

facilities of golf course, sports complex, gym etc. The

proposed townships were to be ready for possession

with 30-36 months of booking by the prospective

buyer. Numerous prospective buyers believing the

guarantee of the Respondent Nos. 3 and 4, invested

their hard earned money and made timely payments in

order to receive their homes within the stipulated time

frame.

- The Respondent No. 3 inspite of subsequent time lapse

failed to deliver the proposed apartments to the buyers

and unilaterally extended the time period for delivery.

It is pertinent to mention that apartments to be

delivered as early as 2013 are still not delivered and

the construction is still at a nascent stage.

- Subsequent to the rampant delay in handing over the

possession of the flats numerous flat owners like the

present Petitioners filed consumer complaints against

defaulting builder corporations such as the Respondent


Nos. 3 and 4 herein before various State consumer

dispute commissions and National consumer dispute

redressal commission seeking refund of their money or

speedy possession of their allotted apartments. The

aforesaid consumer complaints were filed by the flat

owners either in their individual capacity or as part of

resident welfare associations.

2016 The Insolvency and Bankruptcy Code enacted. The said

act was enacted in order to consolidate and amend the

laws relating to reorganisation and insolvency

resolution of corporate persons, partnership firms and

individuals in a time bound manner.

23.01.2017 The NCLT principal bench at New Delhi in Nikhil Mehra

vs. AMR Infrastructure Limited C.P. No. (ISB)-

03(PB)/2017 held that flat buyers awaiting possession

cannot be construed as Financial Creditors under

S.5(7) of the IBC, 2016.

20.2.2017 The NCLT Principal bench at New Delhi in Col. Vinod

Awasthy v. AMR Infrastructure Limited C.P. No. (IB)10

(PB)/2017 held that the flat buyers awaiting possession

cannot be construed as Operational Creditors within

the meaning of S. 9 read with S.5(7) and S.5(8) of the

IBC, 2016.

June,2017 The Reserve Bank of India published a list of top 12

defaulters of the country, including Respondent No. 3


which is a subsidiary of Respondent No. 4. The

Respondent No.3 was declared to be in default of

approximately Rs. 8000 crore to it’s lenders.

July, 2017 An application for initiation of Corporate Insolvency

Resolution Process filed against the Respondent No. 3

under section 7 of the Insolvency and Bankruptcy

Code, 2016 and rule 4 of the Insolvency and

Bankruptcy Rules before NCLT Allahabad Bench for

default of a total sum of Rs. 526,11,40,827 by IDBI Bank

being the financial creditor.

9.8.2017 The Allahabad Bench of NCLT allowed the application

against Respondent No 3 thereby initiating the

Corporate Insolvency Resolution Process. As a

consequence of the aforesaid order the Hon’ble

tribunal issued a moratorium under Section 14 of the

IBC whereby institution of suits or continuation of

pending suit or proceedings against the corporate

debtor including execution of any judgement, decree

or order in any court of law, tribunal, arbitration panel

or other authority is prohibited till the completion of the

corporate insolvency resolution process or until the

Bench approves the resolution plan under Section 31(1)

or passes an order for liquidation of corporate debtor

under Section 33. Subsequently the bench appointed

Mr. Anuj Jain as Interim Resolution Process to carry the

functions under the insolvency resolution process.


14.08.2017 Pursuant to the order dated 9.8.2017 The Respondent

No 3 called for submissions of claim by the creditors by

way of forms on their website. It is pertinent to note that

the aforesaid call for submission of claims was only for

financial creditors under form C, operational creditors

under for B, workmen/ employees under form E and

creditors apart from financial and operational creditors

under form F.

16.08.2017 Statement issued by minister of finance Hon’ble Shri

Arun Jaitley expressing his sympathy for the flat buyers

ensuring that the home owners will not be deprives of

their rights.

17.08.2017 The interim resolution professional released FAQ

whereby flat buyers are given no clear indication with

regard to their classfication as creditors further adding

to the ambiguity regarding the status of the flat buyers.

18.08.2017 The insolvency and bankruptcy board released press

information clarifying that home buyers may fill form F

as they cannot be treated on par with financial and

operational creditors.

21.08.2017 Hence, this Writ Petition.





[under Article 32 of the Constitution of India]

IN THE MATTER OF:

1. Chitra Sharma and others

Vrs.

1. Union of India, through its Secretary,

Ministry of Finance, 3rd Floor, Jeevan

Deep Building, Sansad Marg

New Delhi-110001

2. Union of India, through its Secretary,

Ministry of Corporate Affairs,

5th floor, Shastri Bhawan, Dr. R P Road,

New Delhi-110001

3. Jaypee Infratech Ltd, Through Its

Managing Director, Registered office at

Sector-128, Noida – 201304, U.P

4. Jaiprakash Associates Limited, “JA House”

63, Basant Lok, Vasant Vihar

New Delhi -110 057, Through Its Managing

Director

5. IDBI Bank Ltd. through its Managing

Director, Regional Office at IDBI Tower,

WTC Complex, Cuffe Parade, Colaba,

Mumbai 400005


6. Reserve Bank of India, through CGM,

16th floor, Central Office Building

Shahid Bhagat Singh Marg,

Mumbai - 400 001

7. NOIDA Authority, Administrative Complex

Sector 6, Noida - 201301 District. Gautam

Budh Nagar, UP through its CEO

8 State of Uttar Pradesh, Through Chief

Secretary, Urban Development

Department, Room No. 824, Bapu Bhawan,

Lucknow, UP

9 Sri Anuj Jain, C/o. BSRR & Co. Chartered

Accountants , 8th floor, Building No. 10,

DLF Cyber City, Gurgaon 122002, Haryana

.... .... Respondents

WRIT PETITION UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDIA

To

The Hon'ble Chief Justice of India and His Lordship's Companion Justices of the Supreme Court of India.

The Humble Petition of the Petitioners above named MOST RESPECTFULLY SHOWETH :

1. That the present Petition, in public interest, is being

preferred invoking the extraordinary power of this Hon’ble

Court under Article 32 of the Constitution of India, seeking

protection of the interests of thousands of home buyers in the

Country, who have invested their hard earned life savings, to


fulfil their dream of owning a house. It is respectfully

submitted that the regime brought about by the Insolvency

and Bankruptcy Code, 2016 and the order as have been


Tribunal in the Petition titled ‘IDBI Bank vs. Jaypee Infratech

Limited’ in CP (IB) 77/ALD/2017, have left the flat buyers

remediless. The actions as have been taken under the code

has led to a situation, wherein the lifelong savings of the flat

owners will go to waste with no prospects of them recovering

the same, if their interests are not saved by this Hon’ble

Court.

2. The challenge is being made particularly against Section 14,

53 and 238 of the Code in light of the recent order of the

NCLT Allahabad Bench dated 9.8.2017 whereby the Hon’ble

Tribunal was pleased to initiate Corporate Insolvency

Resolution Process under Section 7 of the Insolvency and

Bankuptcy Code(IBC), 2016 and Rule 4 of the Insolvency and

Bankruptcy Rules, 2016, against Jaypee Infratech in the

Petition titled ‘IDBI Bank vs. Jaypee Infratech Limited’ in CP

(IB) 77/ALD/2017, by virtue of which the present

Petitioners/consumers and thousands of other flat buyers

have been rendered remediless.

3. That the Petitioners herein are the common consumers, who

have invested their hard earned life time savings in the


housing projects being undertaken by the Respondent

Builders. It is a common knowledge that the Housing Sector

of the country is blighted with inordinate delays in

completion of the projects, owing to the large scale

mismanagement of the funds as received by the construction

companies from the flat buyers. It is respectfully submitted

that this Hon’ble Court on various occasions has taken note of

the plight of the “home buyers” and have directed strict

actions to be taken against some of the constructions

companies, along with order of refund of the amount as

received from the buyers. The said orders have been passed

by this Hon’ble Court under the Consumer Protection Act,

1986. As a result of this the petitioners and other similarly

situated flat buyers have moved various state dispute

redressal commissions as well as National consumer disputes

redressal commission to seek possession of their apartments

or in the alternate seeking refund of the total payment made

by them.

4. That Respondent No. 1 & 2 are the Union of India, Ministry of

Finance and Corporate Affairs which are the concerned

Ministers for the purposes of the present PIL.

5. That the Respondent 3 ‘Jaypee Infratech Ltd.’ is a defaulting

builder corporation who is also the primary corporate debtor


in the order of the NCLT Allahabad Bench dated 9.8.2017

whereby the Hon’ble Tribunal was pleased to initiate

Corporate Insolvency Resolution Process under Section 7 of

the Insolvency and Bankuptcy Code(IBC), 2016 and Rule 4 of

the Insolvency and Bankruptcy Rules, 2016, against

Respondent no 3 for having a total default amount of Rs.

526,11,40,827, in the Petition titled ‘IDBI Bank vs. Jaypee

Infratech Limited’ in CP (IB) 77/ALD/2017.

6. The Respondent no. 3 was incorporated on April 5, 2007 as a

Special Purpose Vehicle for the development of Yamuna

Expressway and related real estate projects by the

Respondent no. 4 ‘Jaiprakash Associate Limited’. The

Respondent no. 4 herein is a diversified infrastructure

conglomerate with business interests in Engineering &

Construction, Cement, Power, Real Estate, Expressways,

Fertilizer, Hospitality, Healthcare, Sports, Information

Technology and Education. The Respondent no 4 operates

through its various 19 subsidiaries which are engaged in

different business segments, the Respondent no 3 being one

of them. The Respondent no 4 herein is the biggest stake

holder of the Respondent no 3 company amounting to

approximately 72% of it’s total stake.


7. The Respondent no 3 since it’s inception in 2007 has announced

major real estate development projects and therein proposed 3

elaborate residential townships namely in NCR Region namely

Jaypee Greens Noida, Jaypee Greens Greater Noida, Jaypee

Greens Sports City. All three residential townships combined

account for a massive 6500 acres. Jaypee Greens Noida

‘Wishtown’ alone boasts of about 1063 acres with 24 projects

along with residential and commercial plots and additional

facilities like hospital, shopping arcade, schools, golf course, gym

etc. The Respondent no 3 had proposed to build 32,000 flats

excluding some plot properties across various projects in the

Wish Town city spread across 5 sectors in Noida along the

Yamuna Expressway. Flats, penthouses, villas and plots were

all part of these projects. However so far only about 6500 flats

have been made ready for possession and out of the

proposed 305 towers only 55 towers are complete. The said

apartments were to be ready by the year 2013, however the

Respondent no 3 has since then been unilaterally extending

the time for completion.

8. It is respectfully submitted that the provisions of the code are

violative of the Fundamental rights of the common citizens of

this Country. As a consequence of the aforesaid order the

Hon’ble tribunal issued a moratorium under Section 14 of the

IBC whereby insitution of suits or continuation of pending suit


or proceedings against the corporate debtor including

execution of any judgement, decree or order in any court of

law, tribunal, arbitration panel or other authority is

prohibited till the completion of the corporate insolvency

resolution process or until the Bench approves the resolution

plan under Section 31(1) or passes an order for liquidation of

corporate debtor under Section 33. Due to the issuance of

this moratorium the present Petitioner as well as other

Petitioners/ flat buyers who have invested their hard earned

money with the Respondent 2 are left without any remedy to

approach any Court to compel the defaulting Respondent 2

to deliver them the flats as guaranteed or refund of their

money with interest. It is relevant to mention here that the

aforesaid provision of the IBC, 2016 even bars the Supreme

Court from hearing any petition or appeal against the

Respondent 2 inspite of being the highest court of appeal

and having extra-ordinary powers under Article 141 and 142

of the Constitution of India.

9. It is submitted in light of the provisions as have been brought

into effect by the IBC, 2016, and the Petitioners and similarly

placed citizens of this Country have been left remediless. It is

apposite to mention that the Section 14 of the IBC not only

bars initiation of suits against the corporate debtor but also

stays execution of decree against the corporate debtor. As a


result of this, flat buyers who have already been granted

refund by courts such as this court or the National Consumer

Disputes Redressal Commissions or the various State

Consumer Dispute Commissions cannot obtain their refund

due to the stay on execution.

10. The grievances of the Petitioners/ flat buyers is further

aggravated as the NCLT as well as NCLAT in judgements

such as Col. Vinod Awasthy v. AMR Infrastructure Limited C.P.No

.(IB)10 (PB)/2017 and Nikhil Mehra vs. AMR Infrastructure

Limited C.P. No. (ISB)-03(PB)/2017 have held that the

Petitioners/ flat buyers are neither financial creditors nor

operational creditors under the IBC.

11. It is further submitted that subsequent to the insolvency

resolution procedure, if the corporate debtor company is

directed to be liquidated, Section 53(1) of the IBC states the

proceeds from the sale of the liquidation assets shall be

distributed in the following order of priority and within such

period and in such manner as may be specified, namely :

(a) The insolvency resolution process costs and the liquidation

costs paid in full,

(b) The following debts which shall rank equally between and

among the following :—

(i) Workmen’s dues for the period of twenty-four months

preceding the liquidation commencement date; and

(ii) Debts owed to a secured creditor in the event such


secured creditor has relinquished security in the manner

set out in section 52;

(c) Wages and any unpaid dues owed to employees other than

workmen for the period of twelve months preceding the

liquidation commencement date;

(d) Financial debts owed to unsecured creditors;

(e) the following dues shall rank equally between and among

the following:—

(i) Any amount due to the Central Government and the

State Government including the amount to be received on

account of the Consolidated Fund of India and the

Consolidated Fund of a State, if any, in respect of the

whole or any part of the period of two years preceding

the liquidation commencement date;

(ii) Debts owed to a secured creditor for any amount

unpaid following the enforcement of security interest;

(f) Any remaining debts and dues;

(g) preference shareholders, if any; and

(h) equity shareholders or partners, as the case may be.

12. It is humbly brought to the attention of this Hon’ble Court that

the Petitioners/ flat buyers not being covered under the

category of a Secured Creditor and therefore even upon

liquidation of assets of the Company, they do not have first

right over the funds generated and would possibly receive a

meagre amount due to not falling under the category of a

secured creditor. The cumulative effect of the provisions of

the IBC, 2016 is that the common citizens of the country who

have invested there hard earned money have been left

remediless and the interests of the big financial institutions

have been given primacy over the interests of the public at

large.


13. The facts in brief are narrated as under:

i. That subsequent to the independence and during the

“licence-raaj” the consumers of the Country were

blighted by unfair trade practices and exploitation by

the goods and service providers in the Country. The

statutory mechanism as available at the said point of

time, was inadequate to meet the grievances and

interests of the Consumers. The Union Legislature in its

wisdom and keeping in mind the interests of the

Consumers at Large, enacted the Consumer Protection

Act, 1986. The preamble of the Consumer Protection

Act states as follows :-

“An act to provide for better protection of the interest of

consumers and for that purpose to make provision for

the establishment of consumer councils and other

authorities for the settlement of consumer’s disputes

and for matters connected therewith.”

ii. That this Hon’ble Court in Ludhiana Improvement Trust

v. Shakti Coop. House Building Society Ltd. Reported in

(2009) 12 SCC 369 has held that the Consumer

Protection Act, is a benevolent piece of Legislation

intended to protect the consumers from exploitation

and the provisions of the Act are required to be

interpreted broadly


iii. That with the advent of liberalisation a host of services

have been included within the ambit of Consumer

Protection Act, 1986. One of the sectors which was

covered by judicial pronouncement by the Consumer

Protection Act, was the housing Sector. The Hon’ble

National Consumer Dispute Redressal Commission and

this Hon’ble Court in a catena of judgments has held

that inordinate delay in handing over possessions of the

flats will amount to deficiency in service and thereby

directed payment of refund with interest or expedient

delivery of flats to the consumers.

iv. The judgements of various courts awarding relief in

form of refund or possession of flats was directed in

light of numerous builder corporations, like the present

Respondent no 3, failing to hand over the possession of

the flats inspite of the Petitioners/ flat buyers making

90% of the payments and in spite of lapse of the

stipulated time frame for delivery of the flats as

guaranteed by the builders like the present

Respondent no 3.

v. In the present matter The Respondent no.3 since it’s

inception in 2007 announced residential projects under

the brand name of ‘Jaypee Greens’ such as ‘Jaypee


Greens Wishtown’, ‘Jaypee Sports City, ‘Jaypee Greens

Greater Noida,’.

vi. In the year 2010, the Respondent no.3 allured

purchasers into investing in their property with

promises of a high tech residential township consisting

of 2/3bhk apartment units with luxurious facilities such

as golf course, gym, sports complex etc which would

be delivered within 30-36 months. The projects was

heavily marketed by the Respondent no 3 and the initial

sale agreement was to be executed between the

prospective buyer and the Respondent nos. 3 and 4.

Numerous purchasers in the country as well as abroad

relying on the goodwill of the Respondent nos. 3 and 4

invested their hard earned money into the proposed

apartments as early as in 2010. True copy of one of the

provisional allotment letter dated 31.5.2010 with

standard terms and agreement executed at the time of

provisional allotment of apartment between the buyers

and Respondent nos. 3 and 4 is marked herewith and

annexed as ANNEXURE- P1 (page

vii. The Respondent no 3 after obtaining almost 90% of the

payment amount towards the apartment units, failed to

deliver the possession of the apartment units within the


stipulated time and unilaterally extended the time of

possession on some pretext or the other. Despite of the

relentless follow up and the efforts made by all the buyers,

to contact the Respondent no. 3 in order to enquire about

the progress of the project and the handing over of the

possession, Respondent no.3 in the most defiant manner

either did not reply or constantly gave false assurances of a

possible delivery or/and given false reports of the alleged

progress of construction.

viii. That it is submitted that most buyers are citizens belonging

to the middle income group who had to opt for home loans

with considerable interest in order to secure a home for

their families.

ix. That due to the rampant delay in delivery of possession by

various builders including the Respondent no 3, the flat

buyers like the present Petitioners approached various

State consumer dispute redressal commissions as well as

the National Consumer Disputes Redressal Commission in

order to get their refund along with interest or possession of

the apartment units.

x. That approximately 30,000 purchasers have invested their

hard earned money based on the assurances of Respondent

nos. 3 and 4 that they would receive their flats within the


stipulated time frame. The Respondent no 3 has collected

huge sums from the hopeful buyers and diverted the funds

towards other activities, leaving the consumers with no

choice but to initiate consumer complaints against the

Respondent nos 3 and 4 in order to get their refund or

possession of flats. However due to the recent order of the

NCLT, Allahabad dated 9.8.2017 the prospects of the

Petitioners/ flat buyers getting any relief by approaching

various consumer disputes commissions is diminished.

xi. That in the meanwhile the Legislation with an intention

to consolidate the insolvency and restructuring laws

enacted the Insolvency and Bankruptcy Code, 2016.

The preamble of the Act states as follows :-

“An Act to consolidate and amend the laws relating to

reorganisation and insolvency resolution of corporate

persons, partnership firms and individuals in a time

bound manner for maximisation of value of assets of

such persons, to promote entrepreneurship, availability

of credit and balance the interests of all the

stakeholders including alteration in the order of priority

of payment of Government dues and to establish an

Insolvency and Bankruptcy Board of India, and for

matters connected therewith or incidental thereto.”

xii. That the object and reasons of the Act makes it clear

that it is aimed at maximisation of value of the assets of

the corporate persons and to balance the interests of all


the stakeholders. The acts is therefore a special

enactment with a specific purpose. The same cannot be

held to be for the benefit for the citizens in general.

xiii. However certain provisions of the Act, as drafted are in

direct conflict with the Consumer Protection Act, and is

also in conflict with the interests of the Consumer in

General.

xiv. That Section 14 of the Act provides as follows :-

“14. (1) Subject to provisions of sub-sections (2) and (3), on

the insolvency commencement date, the Adjudicating

Authority shall by order declare moratorium for prohibiting

all of the following, namely:—

(a) the institution of suits or continuation of pending

suits or proceedings against the corporate debtor

including execution of any judgment, decree or order

in any court of law, tribunal, arbitration panel or other

authority;

(b) transferring, encumbering, alienating or disposing

of by the corporate debtor any of its assets or any legal

right or beneficial interest therein;

(c) any action to foreclose, recover or enforce any

security interest created by the corporate debtor in

respect of its property including any action under the

Securitisation and Reconstruction of Financial Assets

and Enforcement of Security Interest Act, 2002;

(d) the recovery of any property by an owner or lessor

where such property is occupied by or in the

possession of the corporate debtor.


(2) The supply of essential goods or services to the corporate

debtor as may be specified shall not be terminated or

suspended or interrupted during moratorium period.

(3) The provisions of sub-section (1) shall not apply to such

transactions as may be notified by the Central Government in

consultation with any financial sector regulator.

(4) The order of moratorium shall have effect from the date of

such order till the completion of the corporate insolvency

resolution process:

Provided that where at any time during the corporate

insolvency resolution process period, if the Adjudicating

Authority approves the resolution plan under sub-section (1)

of section 31 or passes an order for liquidation of corporate

debtor under section 33, the moratorium shall cease to have

effect from the date of such approval or liquidation order, as

the case may be.”

xv. That the effect of Section 14 of the Code is that once an

order of moratorium is passed and till the time the same

is in effect, no proceeding can be initiated against the

“Corporate Debtor”. The said Section further stays

continuation of any proceeding which has already been

issued prior to the order of Moratarium.

xvi. That since the said provisions has not carved out any

exception even the proceedings under the Consumer

Protection Act, 1986 are covered within the definition of

legal proceeding and therefore no new proceedings

before the Consumer Forums can be instituted. As an


effect of the provisions of the Act, even the complaints

which have already been instated will also be stayed.

xvii. That in addition to Section 14, Section 53 (1) of the IBC

states that, “notwithstanding anything to the contrary

contained in any law enacted by the Parliament or any State

Legislature for the time being in force, the proceeds from the

sale of the liquidation assets shall be distributed in the

following order of priority and within such period and in such

manner as may be specified, namely :—

(a) The insolvency resolution process costs and the

liquidation costs paid in full,

(b) The following debts which shall rank equally between

and among the following :—

(i) Workmen’s dues for the period of twenty-fourmonths

preceding the liquidation commencement date; and

(ii) Debts owed to a secured creditor in the event such

secured creditor has relinquished security inthe

manner set out in section 52;

(c) Wages and any unpaid dues owed to employees other

than workmen for the period of twelve months preceding


(d) Financial debts owed to unsecured creditors;

(e) the following dues shall rank equally between and

among the following:—

(i) Any amount due to the Central Government and the

State Government including the amount to be received

on account of the Consolidated Fund of India and the

Consolidated Fund of a State, if any, in respect of the

whole or any part of the period of two years preceding



(ii) Debts owed to a secured creditor for any amount

unpaid following the enforcement of security interest;

(f) Any remaining debts and dues;

(g) preference shareholders, if any; and

(h) equity shareholders or partners, as the case may be.

xviii. The order of distribution of assets in the eventuality of

liquidation of the assets of the Company, does not carve

out the classes of companies and has painted all the

different types of Companies with the same brush. The

said provision has not taken into consideration the

operational realities of various sectors and therefore

has failed to take into consideration the interests of the

general consumer. Section 53 of the Code gives

primacy of the interests of the Secured Creditors for

example the Financial Institutions ,without carving out

any exception for the interests of consumers, who in

case of a Construction Company are at the equal

pedestal with the Financial Institution.

xix. That to further aggravate the misery of the Consumers

Section 238 of the Code states that the provisions of this

Code shall have effect, notwithstanding anything

inconsistent therewith contained in any other law for

the time being in force or any instrument having effect

by virtue of any such law.


xx. It is respectfully submitted that this court in numerous

judgements has highlighted the welfare nature of the

Consumer Protections Act, 1986 being in addition to all

existing laws. In Fair Air Engineers vs. NK Modi (1996)

6 SCC 385 this court held that provisions of the

Consumer Protection Act, 1986 are to be construed

widely to give effect to the Act, as the provisions of the

Act are in addition to and not in derogation to any other

law in force. Hence the Act being an additional remedy

the right of the consumer to secure justice under the

Consumer Protection Act, 1986 should not be barred by

the moratorium under S. 14 of the IBC.

xxi. It is respectfully submitted that most buyers of these

construction companies are citizens belonging to the

middle income group who had to opt for home loans with

considerable interest in order to secure a home for their

families.

xxii. That the effect of the provisions of the Code is already

visible with the hosts of orders passed under the IBC, 2016,

which have had a direct impact on the interests of the

Consumers.

xxiii. That the Hon'ble National Company Law Tribunal in the case

of the Col. Vinod Awasthy v. AMR Infrastructure Limited

C.P.No.(IB)10 (PB)/2017while dismissing the Petition


instituted under Section 9 of the Insolvency and Bankruptcy

Code, 2016 (IBC) at the admission stage itself, decided the

issue of whether a flat purchaser would fall within the

definition of an 'Operational Creditor' as defined under

Section 5(20) of the IBC to whom an 'Operational Debt' as

defined under Section 5(21) of the IBC is owed. The Hon'ble

Tribunal observed that the framers of the IBC had not

intended to include within the expression of an 'operation

debt' a debt other than a financial debt. Therefore, an

operational debt would be confined only to four categories as

specified in Section 5(21) of the IBC like goods, services,

employment and Government dues. The Tribunal held that

the debt owed to the Petitioner (a flat purchaser in this case)

had not arisen from any goods, services, employment or dues

which were payable under any statute to the Centre / State

Government or local bodies. Rather, the refund sought to be

recovered by the Petitioner was associated with the

possession of immovable property. The Hon'ble Tribunal

while deciding the question of whether a flat purchaser could

be considered an operation creditor considered the

observations of the Bankruptcy Law Reforms Committee in

paragraph no. 5.2.1 of the Final Report:"Operational

Creditors are those whose liability from the entity comes from

a transaction on operations. Thus, the wholesale vendor of

spare parts whose spark plugs are kept in inventory by car

mechanics and who gets paid only after the spark plugs are


sold is an operational creditor. Similarly, the lessor that the

entity rents out space from is an operational creditor to whom

the entity owes monthly rent on a three-year lease."The

Hon'ble Tribunal held that the Petitioner had neither

supplied goods nor had rendered any services to acquire

the status of an 'Operational Creditor'.It was further held that

it was not possible to construe Section 9 read with Section

5(20) and Section 5(21) of the IBC so widely to include

within its scope, cases where dues were on account of

advance made to purchase a flat or a commercial site from a

construction company like the Respondent especially when

the Petitioner had other remedies available under the

Consumer Protection Act and the General Law of the land.

True copy of the order dated 23.1.2017 in CP No. (ISB)-03

(PB)/2017 is annexed as Annexure-P2 (page and

true copy of order dated 20.2.2017 in CP No. (IB)-10

(PB)/2017 is annexed as Annexure-P3 (page

xxiv. It is respectfully submitted that the provisions of the

code are violative of the Fundamental rights of the

common citizens of this Country. As a consequence of

the aforesaid order the Hon’ble Tribunal issued a

moratorium under Section 14 of the IBC whereby

institution of suits or continuation of pending suit or

proceedings against the corporate debtor including

execution of any judgement, decree or order in any


court of law, tribunal, arbitration panel or other

authority is prohibited till the completion of the

corporate insolvency resolution process or until the

Bench approves the resolution plan under Section 31(1)

or passes an order for liquidation of corporate debtor

under Section 33. Due to the issuance of this

moratorium the present Petitioner as well as other

Petitioners/ flat buyers who have invested their hard

earned money with the Respondent no 3 are left without

any remedy to approach any Court to compel the

defaulting Respondent no 3 to deliver them the flats as

guaranteed or refund of their money with interest. True

copy of one such order dated 17.7.2017 of NCDRC

wherein the Learned Commission found the respondent

builders guilty of defining of service and passed a

judgment in favour of the consumers is annexed as

Annexure-P4 (page

xxv. That inspite of the observing that a flat- buyer has an

alternative remedy available under the Consumer

Protection Act, 1986, as a consequence of an order in

one of the Insolvency Proceedings filed by a

Construction Company Jaypee Infrastructures, the

National Company Law Tribunal, Allahabad Bench vide

its order dated 9.8.2017 was pleased to initiate


Corporate Insolvency Resolution process under

Section 7 of the Insolvency and Bankuptcy Code(IBC),

2016 and Rule 4 of the Insolvency and Bankruptcy

Rules, 2016, against Jaypee Infratech in the Petition

titled ‘IDBI Bank vs. Jaypee Infratech Limited’ in CP (IB)

77/ALD/2017. The Hon’ble Tribunal has further passed

an order of moratorium thereby staying any

proceedings which have initiated against the said

company. True copy of the order dated 9.8.2017 passed

by the National Company Law Tribunal, Allahabad

Bench in CP No. (IB)/77/ALD/2017 is annexed as

ANNEXURE-P5 (page

xxvi. That the reference to the order as passed by the

Hon’ble Tribunal has been made to demonstrate the ill

effects of the provisions of the IBC 2016, which have

been enacted without carving out any safeguards for

interests of the public at large.

xxvii. It is humbly submitted that the order of the NCLT dated

9.8.2017 and the various press releases by the

Insolvency and Bankruptcy Board thereafter have been

used to the disadvantage of the Petitioners. The

insolvency and bankruptcy board has been

circumventing the questions relating to the rights of the


home buyers and putting the interests of the flat buyers

below that of private banks.

xxviii. That the provisions of the IBC 2016 giving effect to the

NCLT order dated 9.8.2017 are depriving the flat

buyering their right to equality and right to life as

enshrined in Article 14 and 21 of the Constitution of

India.

xxix. It is submitted that once the Insolvency Resolution

Process was initiated claims were invited only from the

Financial Creditors, Operational Creditors, Workmen

and Employees to be submitted to the Insolvency

Resolution Professional and Forms B & C were

introduced. Subsequently, a Form F was released to be

filled by creditors other than Financial Creditor or

operation creditor, which was not specific to flat buyers

and does not address their specific situation. True copy

of Form B, C & F dated nil are annexed as Annexure

P6 (page ) , Annexure P7 (page and

Annexure P8 (page respectively.

xxx. It is submitted that the consumers inspite of the huge

financial burden made all the payments to the

Respondent no 3 in a timely fashion even by procuring

home loans, expecting to receive a home for


themselves. However the act of the insolvency board

recognizing private banks as bigger creditors than

homebuyers is unjust and violative of the buyer’s right

to equality. It is submitted that the Insolvency board has

itself reiterated that the home buyers cannot be treated

on par with financial and operational creditors and

therefore cannot be part of the committee of creditors

and stake a claim equivalent to the amount paid by

them to the Respondent no 3. True copy of the

Frequently Asked Questions (FAQs) dated 17.8.2017

and the News item of Business Standard dated

18.8.2017 are respectively annexed as Annexure P9

(page & Annexure P10 (page

14. The Petitioner has preferred this Writ Petition on the

following amongst other grounds:

GROUNDS

A. Because Section 14(a) of the Insolvency and Bankruptcy

Code declares moratorium for prohibiting ‘the institution of

suits or continuation of any judgment, decree or order in any

court of law, tribunal, arbitration panel or other authority.

This provision would consequently stay all proceedings

against the company being liquidated. This would inevitably


affect the consumers who have approached the National

Consumer Dispute Redressal Commission and various State

Commissions to obtain refund of their money against

defaulting builders.

B. Because the consumers have invested their hard earned

money after being lured in by the Construction Companies

with promises of hi-tech residential apartments delivered to

them anywhere between 30 to 36 months. Most consumers

belong to middle income groups that have obtained loans on

interest in order to make timely payment to the builders,

however the builder corporations have defaulted in

delivering possession of the apartment units to buyers by

several years inspite of the buyers complying with all the

terms and obligations and the payment schedule of the

builder corporations.

C. Because the consumers are being pushed below private

banks by recognizing private banks as bigger creditors

inspite of the flat buyers making timely payments and

fulfilling their obligations towards Respondent no 3.

D. Because the Flat Buyers are being exploited both ways. The

Construction companies have already pocketed around 90%

of the Value of the Flat. In addition to the same inspite of the

possession not being handed over to them the Consumers


keep on paying EMI to the Banks from whom they have taken

financial institutions.

E. Because the provisions of the IBC, 2016 are further aiding the

exploitation of the General Consumer and therefore the same

are violative of their fundamental right.

F. Because the cumulative effect of Section 14 and 53 of the

Code, is that the Banks are the real beneficiary from the

Housing Sector. The banks continue to get EMI along with

interest and at the same time they have preferential rights

over the assets of the Company in liquidation, in light of them

falling within the category of a Secured Creditor. It is not out

place to mention that in most of the cases the Bank which

provides “financial help” to the Petitioners/ flat buyers are

also the Banks which finance the Housing Project.

G. Because the provisions of the IBC 2016, are in direct conflict

with the provisions of the Consumer Protection Act, 1986,

which safeguard the interests of the Consumers. The effect of

Section 14 of the IBC 2016 is that the same suspends the right

of the Consumer to seek redressal from the Consumer

Forum. The Code has not carved out any provision for special

cases like the Construction Companies, wherein huge

investments have been made by the Common Citizens of this

Country.


H. Because the case of an Infrastructure Company cannot be

equated with that of a normal Company since the rights of the

Consumers of an Infrastructure Company are protected by a

beneficial legislation, namely the Consumer Protection Act.

This Hon’ble Court in Ludhiana Improvement Trust v. Shakti

Coop. House Building Society Ltd. Reported in (2009) 12 SCC

369 has held that the Consumer Protection Act, is a

benevolent piece of Legislation intended to protect the

consumers from exploitation and the provisions of the Act are

required to be interpreted broadly.

I. Because even if the Petitioners/ flat buyers do not own any

shares of the Companies, however in addition to the finance

as provided by the Financial Institutions it is the investment

of the Flat Buyers that facilitates the construction of the

Project. Therefore since the IBC, 2016 does not equate the

Flat Buyers with the Financial Institutions the same is violative

of Article 14 of the Constitution of India, as equals have been

treated unequally.

J. Because it is trite position of law that an individual’s rights is

always superceded by the right of the public at large.

However the provisions of the IBC prioritises the right of the

Financial Institution over the Right of the public at large and

therefore he same are liable to be held ultra vires.


K. Because Section 238 of the Code give an overriding effect to

the provisions of the Code over all the existing statutes. As a

result of the same a beneficial legislation like the Consumer

Protection Act has been made subject to a financial/ special

enactment whose primary aim is maximisation of value of the

assets of the corporate persons and to balance the interests

of all the stakeholders.

L. Because Section 3 of the Consumer Protection Act states that

the provisions of the Act are in addition to and not in

derogation of any other law for the time being in force.

M. Because this Hon’ble Court in the Case of KSL Industries Ltd

v. Arihant Threads Ltd. Reported in (2015) 1 SCC 166, has

held that the meaning of the phrase “in addition to and not in

derogation” is that the provisions will not derogate the

existing laws and therefore the provisions of the act will be

subject to provisions of a Special Act.

N. Because issuing a moratorium against institution of a new suit

or continuation of pending suits or proceedings against the

corporate debtor including execution of any judgment,

decree or order in any court of law, tribunal, arbitration

panel or other authority is contrary to the law laid down by

this court.


O. Because even the forms as are issued inviting the claims from

all the interest persons under the Insolvency Proceedings are

not consumer specific are general in nature.

P. Because in one of the proceedings under the IBC Code i.e.

IDBI Bank vs. Jaypee Infratech Limited’ in CP (IB)

77/ALD/2017 claims of creditors were invited to be filed

before the NCLT under Section 15 of the IBC, however only

three categories of creditors have been invited to submit

their claim namely; Financial Creditors/Secure Creditors,

Operational Creditors and Employees/Workmen, leaving the

buyers no avenue to seek their claim.

Q. Because the Hon'ble National Company Law Tribunal in the

case of the Col. Vinod Awasthy v. AMR Infrastructure Limited

C.P.No.(IB)10 (PB)/2017while dismissing the Petition

instituted under Section 9 of the Insolvency and Bankruptcy

Code, 2016 (IBC) at the admission stage itself, decided the

issue of whether a flat purchaser would fall within the

definition of an 'Operational Creditor' as defined under

Section 5(20) of the IBC to whom an 'Operational Debt' as

defined under Section 5(21) of the IBC is owed. The Hon'ble

Tribunal observed that the framers of the IBC had not intended

to include within the expression of an 'operation debt' a debt

other than a financial debt. Therefore, an operational debt

would be confined only to four categories as specified in


Section 5(21) of the IBC like goods, services, employment and

Government dues. The Tribunal held that the debt owed to the

Petitioner (a flat purchaser in this case) had not arisen from any

goods, services, employment or dues which were payable

under any statute to the Centre / State Government or local

bodies. Rather, the refund sought to be recovered by the

Petitioner was associated with the possession of immovable

property. The Hon'ble Tribunal while deciding the question of

whether a flat purchaser could be considered an operation

creditor considered the observations of the Bankruptcy Law

Reforms Committee in paragraph no. 5.2.1 of the Final

Report:"Operational Creditors are those whose liability from

the entity comes from a transaction on operations. Thus, the

wholesale vendor of spare parts whose spark plugs are kept in

inventory by car mechanics and who gets paid only after the

spark plugs are sold is an operational creditor. Similarly, the

lessor that the entity rents out space from is an operational

creditor to whom the entity owes monthly rent on a three-year

lease." The Hon'ble Tribunal held that the Petitioner had

neither supplied goods nor had rendered any services to

acquire the status of an 'Operational Creditor'. It was further

held that it was not possible to construe Section 9 read with

Section 5(20) and Section 5(21) of the IBC so widely to

include within its scope, cases where dues were on account

of advance made to purchase a flat or a commercial site from


a construction company like the Respondent especially when

the Petitioner had other remedies available under the

Consumer Protection Act and the General Law of the land.

R. Because in order to safeguard the interests of the Consumer

at large it is essential that an exception be carved out under

Section 14 which permits continuation of a proceeding under

the Consumer Protection Act, 1986, and to recognise a

Decree Holder as a Secured Creditor. It is respectfully

submitted that the effect of the said provision will secure the

interest of the consumers at large and will also not be in

conflict with the restructuring or insolvency proceedings.

S. That under Section 38 of the Insolvency and Bankruptcy Code,

2016 the liquidator shall receive or collect the claims of creditors

within a period of thirty days from the date of the commencement

of the liquidation process only from a Financial Creditor, an

Operational Creditor and a Creditor who is partly a financial

creditor and partly an operational creditor.

15. The petitioners submits that the present writ petition is being

filed bonafide and in the interest of justice.

16. The petitioners state that they have no other alternative,

equally efficacious remedy except by means of the present

petition.


17. The petitioners submit that this Hon’ble Court has the

requisite jurisdiction to entertain the present writ petition

and adjudicate upon the issues arising there from.

18. The Petitioners has not filed any other Writ Petition before

this Hon’ble Court or any other Court dealing with the

subject matter of this petition.

19. The petitioners would rely upon documents a list whereof is

hereto annexed.

PRAYER

In the aforesaid facts and circumstances, the petitioner most

humbly prays for the following amongst other prayers:

a) Issue a writ of mandamus or any other direction directing

the Respondents that Section 14 of Insolvency and

Bankruptcy Code, 2016 shall not curtail the legal statutory

and vested rights of the flat owners/buyers as consumers

defined under Section 2(d) of the Consumer Protection

Act, 1986; OR

b) In the alternative Issue a writ of mandamus or any other

direction directing the Respondents to declare the flat

owners/buyers to be notified by the Central Government

as a secured creditor in accordance with power provided

under Section 36 (4)(a) (v) of the IBC.


c) Appoint an independent Auditor to conduct a Forensic

Audit of Respondent No. 3 & 4.

d) pass such other or further order as this Hon’ble Court

may deem fit in the proper circumstances of the case.

Drawn & Filed by

Drawn On: 19. 8.2017 (Ashwarya Sinha) Filed On: 21 .8.2017 Advocate for the Petitioners





IN THE MATTER OF :


Versus


A F F I D A V I T

I, Chitra Sharma, D/o Shri R C Sharma, aged about 44 years Resident

of D-404, Residency, Ardee City, Gate No. 2, Sector 52, Gurgaon,

Haryana, presently at New Delhi, do hereby solemnly affirm and

state as under:

1. That I am the petitioner No. 1 in the aforesaid matter and

being fully conversant with the facts and circumstances of the

case, I am competent to swear this affidavit. I have also been

authorized to affirm this affidavit on behalf of other

petitioners.

2. I say that the contents of the accompanying Synopsis & List of

Dates from page B to P, Writ Petition from para 1 to 19, page

1 to 36 are true to the best of my knowledge and belief.

3. I say that the contents of IAs are true to the best of my

knowledge and belief.


Appendix

The Constitution Of India 1949

14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

19. Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) omitted

(g) to practise any profession, or to carry on any occupation, trade or business

(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence

(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause

(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause

(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe

(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,


https://indiankanoon.org/doc/1142233/













(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise

21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law

32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution

True copy








The Consumer Protection Act, 1986

2(d) “consumer” means any person who,—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) 12 [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 12 [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person 13 [but does not include a person who avails of such services for any commercial purpose];

14. Finding of the District Forum.—

(1) If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to 1[do] one or more of the following things, namely:—

(a) to remove the defect pointed out by the appropriate laboratory from the goods in question;

(b) to replace the goods with new goods of similar description which shall be free from any defect;

(c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant;

(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party: 56 [Provided that the District Forum shall have the power to grant punitive damages in such circumstances as it deems fit;]

57 [(e) to 58 [remove the defects in goods] or deficiencies in the services in question;

(f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them;

(g) not to offer the hazardous goods for sale;

(h) to withdraw the hazardous goods from being offered for sale;

56 [(ha) to cease manufacture of hazardous goods and to desist from offering services which are hazardous in nature;















(hb) to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently: Provided that the minimum amount of sum so payable shall not be less than five per cent. of the value of such defective goods sold or services provided, as the case may be, to such consumers: Provided further that the amount so obtained shall be credited in favour of such person and utilized in such manner as may be prescribed;

(hc) to issue corrective advertisement to neutralize the effect of misleading advertisement at the cost of the opposite party responsible for issuing such misleading advertisement;]

(i) to provide for adequate costs to parties.]

59 [(2) Every proceeding referred to in sub-section (1) shall be conducted by the President of the District Forum and at least one member thereof sitting together: 60[Provided that where a member, for any reason, is unable to conduct a proceeding till it is completed, the President and the other member shall continue the proceeding from the stage at which it was last heard by the previous member.]

(2A) Every order made by the District Forum under sub-section (1) shall be signed by its President and the member or members who conducted the proceeding: Provided that where the proceeding is conducted by the President and one member and they differ on any point or points, they shall state the point or points on which they differ and refer the same to the other member for hearing on such point or points and the opinion of the majority shall be the order of the District Forum.]

(3) Subject to the foregoing provisions, the procedure relating to the conduct of the meetings of the District Forum, its sittings and other matters shall be such as may be prescribed by the State Government.

TRUE COPY








THE INSOLVENCY AND BANKRUPTCY CODE, 2016

4. (1) This Part shall apply to matters relating to the insolvency and liquidation of corporate debtors where the minimum amount of the default is one lakh rupees: Provided that the Central Government may, by notification, specify the minimum amount of default of higher value which shall not be more than one crore rupees. 14. (1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely:— (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgement, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtorany of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process: Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. 36. (1) For the purposes of liquidation, the liquidator shall form an estate of the assets mentioned in sub-section (3), which will be called the liquidation estate in relation to the corporate debtor. (2) The liquidator shall hold the liquidation estate as a fiduciary for the benefit of all the creditors. (3) Subject to sub-section (4), the liquidation estate shall comprise all liquidation estate assets which shall include the following :— (a) any assets over which the corporate debtor has ownership rights, including all rights and interests therein as evidenced in the balance sheet of the corporate debtor or an information utility or records in the registry or any depository recording securities of the corporate debtor or by any other means as may be specified by the Board, including shares held in any subsidiary of the corporate debtor;


(b) assets that may or may not be in possession of the corporate debtor including but not limited to encumbered assets; (c) tangible assets, whether movable or immovable; (d) intangible assets including but not limited to intellectual property, securities (including shares held in a subsidiary of the corporate debtor) and financial instruments, insurance policies, contractual rights; (e) assets subject to the determination of ownership by the court or authority; (f) any assets or their value recovered through proceedings for avoidance of transactions in accordance with this Chapter; (g) any asset of the corporate debtor in respect of which a secured creditor has relinquished security interest; (h) any other property belonging to or vested in the corporate debtor at the insolvency commencement date; and (i) all proceeds of liquidation as and when they are realised. (4) The following shall not be included in the liquidation estate assets and shall not be used for recovery in the liquidation:— (a) assets owned by a third party which are in possession of the corporate debtor, including — (i) assets held in trust for any third party; (ii) bailment contracts; (iii) all sums due to any workman or employee from the provident fund, the pension fund and the gratuity fund; (iv) other contractual arrangements which do not stipulate transfer of title but only use of the assets; and (v) such other assets as may be notified by the Central Government in consultation with any financial sector regulator; (b) assets in security collateral held by financial services providers and are subject to netting and set-off in multi-lateral trading or clearing transactions; (c) personal assets of any shareholder or partner of a corporate debtor as the case may be provided such assets are not held on account of avoidance transactions that may be avoided under this Chapter; (d) assets of any Indian or foreign subsidiary of the corporate debtor; or (e) any other assets as may be specified by the Board, including assets which could be subject to set-off on account of mutual dealings between the corporate debtor and any creditor.

True copy



CIVIL ORIGINAL JURISDICTION IA No. / 2017

in


IN THE MATTER OF :


Versus


APPLICATION FOR STAY

To

The Hon'ble Chief Justice of India and His Lordship's Companion Justices of the Supreme Court of India.

MOST RESPECTFULLY SHOWETH :

1. That the present Petition, in public interest, is being

preferred invoking the extraordinary power of this Hon’ble

Court under Article 32 of the Constitution of India, seeking

protection of the interests of thousands of home buyers in the

Country, who have invested their hard earned life savings, to

fulfil their dream of owning a house. It is respectfully

submitted that the regime brought about by the Insolvency

and Bankruptcy Code, 2016 and the order as have been


Tribunal in the Petition titled ‘IDBI Bank vs. Jaypee Infratech

Limited’ in CP (IB) 77/ALD/2017, have left the flat buyers

remediless. The actions as have been taken under the code


has led to a situation, wherein the lifelong savings of the flat

owners will go to waste with no prospects of them recovering

the same, if their interests are not saved by this Hon’ble

Court.

2. The Petitioners craves leave of this Hon'ble Court to refer to and

rely upon the facts stated therein and the same is not being

reiterated for the sake of brevity.

3. The challenge is being made particularly against Section 14,

53 and 238 of the Code in light of the recent order of the

NCLT Allahabad Bench dated 9.8.2017 whereby the Hon’ble

Tribunal was pleased to initiate Corporate Insolvency

Resolution Process under Section 7 of the Insolvency and

Bankuptcy Code(IBC), 2016 and Rule 4 of the Insolvency and

Bankruptcy Rules, 2016, against Jaypee Infratech in the

Petition titled ‘IDBI Bank vs. Jaypee Infratech Limited’ in CP

(IB) 77/ALD/2017, by virtue of which the present

Petitioners/consumers and thousands of other flat buyers

have been rendered remediless.

4. In pursuant to the order as passed by the NCLT, Allahabad

Bench, initiating the proceedings against Jaypee

Infrastructure Limited, Forms B and C were issued by IRP

which expressly related to financial creditors and operational

creditors. Thereafter some clarifications were issued by the

IRP stating that the home owners can fill these forms. The said


statement was made even though the said forms do not

include the flat buyers at all. The chaos and ambiguity is

further amplified by the fact that, another form i.e. Form F

was introduced wherein the Ministry of Corporate Affairs

made a statement that the flat buyers can fill the said forms.

5. That the Petitioners herein are the common consumers, who

have invested their hard earned life time savings in the

housing projects being undertaken by the Respondent

Builders. It is a common knowledge that the Housing Sector

of the country is blighted with inordinate delays in

completion of the projects, owing to the large scale

mismanagement of the funds as received by the construction

companies from the flat buyers.

6. It is respectfully submitted that this Hon’ble Court on various

occasions has taken note of the plight of the “home buyers”

and have directed strict actions to be taken against some of

the constructions companies, along with order of refund of

the amount as received from the buyers. The said orders

have been passed by this Hon’ble Court under the Consumer

Protection Act, 1986. As a result of this the petitioners and

other similarly situated flat buyers have moved various state

dispute redressal commissions as well as National consumer

disputes redressal commission to seek possession of their


apartments or in the alternate seeking refund of the total

payment made by them.

7. Forms ‘B’ and ‘C’ issued on 10.08.2017 followed by Form ‘F’

on 14.08.2017 by the Respondents making it mandatory to be

filled up and signed by all the flat owners/ buyers on or

before 24.08.2017. The aforesaid forms are in compliance

with statutory time period of 14 days and which expires on

24.08.2017.

8. That under Section 38 of the Insolvency and Bankruptcy Code,

2016 the liquidator shall receive or collect the claims of creditors

within a period of thirty days from the date of the commencement

of the liquidation process only from a Financial Creditor, an

Operational Creditor and a Creditor who is partly a financial

creditor and partly an operational creditor.

9. This application is being moved bonafidely and in the interest of

justice.

10. The Petitioners will suffer irreparable loss and injury if this

application is not allowed.

PRAYER

It is thus most respectfully prayed that this Hon'ble Court may

graciously be pleased to:


i) Stay the order dated 9.8.2017 passed by the Hon’ble

National Company Law Tribunal, Allahabad Bench in

CP No. (IB)/77/ALD/2017;

ii) Extend the date of filling up the forms till the

pendency of the Writ petition;

iii) pass any other Order or Orders as this Hon'ble Court

may deem fit in the facts and circumstances of the

case.

Filed by

New Delhi (Ashwarya Sinha)

+91 9818911510 Filed On: 21 .8.2017 Advocate for the Petitioners


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