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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

1. Bikram Chatterji,

Son of Sh. S.K. Chatterji, F-59, First Floor, South City-2,

Sector-49, Gurgaon, Haryana.

2. Chandra Shekhar Gupta,

S/o of Sh. Ram Keshwar Gupta, B-9, Gali No. 7, Sewak Park,

Uttam Nagar, New Delhi.

3. Mrs. Renu Gupta

W/o Sh. Chandra Shekhar Gupta, B-9, Gali No. 7, Sewak Park,

Uttam Nagar, New Delhi.

4. Vivek Kalra, S/o of Sh. A.K. Kalra,

101, Jor Bagh, New Delhi.

5. Ms. Sudesh Rani,

D/o of Late Sh. Attar Singh, B-161/1, UGF, Gautam Nagar,

Delhi

6. Anjani Kumar Shahi,

S/o of Late Sh. M.P. Shahi, House No.1262, First Floor,

Sector-19, Faridabad, Haryana,

7. Nilesh Dutta Roy,

S/o of Sh. A.K. Dutta Roy, D-47, Rajaji Puram,

Lucknow, (UP).

8. Mrs. Sushma George, W/o of Sh. George Joseph,

2728, Street No.13, Second Floor, Ranjit Nagar, New Delhi

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9. Ajay Mehndiratta, S/o Late Sh. D.N. Mehndiratta,

House No.25, Sector-15, HIG Duplex, Vasundhara, Ghaziabad,

Uttar Pradesh.

10. Kunal Vaid, S/o Sh. K.K. Vaid,

D-135, Ramprastha, P.O. Chander Nagar,

Ghaziabad, (UP)

11. Mrs. Ponnamma Lal, W/o Sh. Basant Lal,

2728, Second Floor,

Street No.13, Ranjit Nagar, New Delhi.

12. Siddharth Singh

S/o Sh. S.P. Singh House No.18, AIIMS Apartments,

Sector-21D, Faridabad, Harayana.

13. Mrs. Himanshi Anand

W/o Sh. Siddharth Singh House No.18, AIIMS Apartments,

Sector-21D, Faridabad, Harayana.

14. Gurpreet Singh S/o Sh. Satbir Singh

5C/63, First Floor, Vishnu Garden,

New Delhi.

15. Mrs. Jasbir Kaur

W/o Sh. Satbir Singh 5C/63, First Floor,

Vishnu Garden, New Delhi.

16. Arvind Kumar Misra,

S/o Sh. Ram Gopal Misra,

1931, Gaur Saundryam, Tech Zone-IV, Greater NOIDA West,

Uttar Pradesh.

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17. Mrs. Neelam Misra, W/o Sh. Arvind Kumar Misra,

1931, Gaur Saundryam, Tech Zone-IV, Greater NOIDA West,

Uttar Pradesh.

18. Pardeep Goyal, S/o Sh. Shiv Kumar Goyal,

D-1106, Prateek Laurel, Sector-120, NOIDA,

Uttar Pradesh.

19. Mrs. Monika Goyal W/o Sh. Pardeep Goyal,

D-1106, Prateek Laurel,

Sector-120, NOIDA, Uttar Pradesh.

20. Alok Puranik

S/o Late Sh. S. Puranik, F1/B39, Ramprastha Colony,

Ghaziabad (UP)

21. Mrs. Meenal Dhoble W/o Sh. Alok Puranik

S/o Late Sh. S. Puranik, F1/B39, Ramprastha Colony,

Ghaziabad (UP)

22. Hemant Kumar

S/o Sh. Inderjeet Singh, F3, Police Wireless Quarters,

TX Station, East Nizamuddin, New Delhi.

23. Mrs. Anjali Verma,

W/o Sh. Hemant Kumar F3, Police Wireless Quarters,

TX Station, East Nizamuddin, New Delhi.

24. Tarun Kumar

S/o Sh. Bijendra Pal, M-241, Sector-12,

Pratap Vihar, Ghaziabd,

Uttar Pradesh.

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25. Mrs. Shikha

W/o of Sh. Tarun Kumar M-241, Sector-12,

Pratap Vihar, Ghaziabd, Uttar Pradesh.

26. Sanjay Kumar Saxena, S/o Sh. Shiv Narayan Saxena,

House No.F-704, Corona Optus, Sector-37-C, Gurgaon,

Haryana.

27. Shantanu Goswami,

S/o Sh. Sajal Goswami, Flat No.5, FB/4A, Lajpat Nagar,

Sahibabad, Ghaziabad

Uttar Pradesh.

28. Mrs. Sarmistha Goswami,

W/o Sh. Shantanu Goswami, Flat No.5, FB/4A, Lajpat Nagar,

Sahibabad, Ghaziabad Uttar Pradesh.

29. Deepak Kumar S/o Sh. Ram Prakash,

C-750, Ground Floor, Vikas Puri, New Delhi.

30. Mrs. Shashi Kiran,

W/o Sh. Deepak Kumar S/o Sh. Ram Prakash,

C-750, Ground Floor, Vikas Puri, New Delhi.

31. Nitin Kumar,

S/o Sh. Kamlesh Kumar 171, Swami Colony,

Akar Nagar, Katol Road, Nagpur, Maharashtra.

32. Kamlesh Kumar

S/o Sh. Ram Prasad 171, Swami Colony,

Akar Nagar, Katol Road, Nagpur, Maharashtra.

33. Brijesh Choudhary, S/o Sh. Jashor Choudhary,

N-15, Hari Nagar Extension, Jaitpur, Badarpur,

Delhi.

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34. Ashish Singh,

S/o Sh. V.B. Singh, Tower-3, House No.701,

Lotus Boulevard, Sector-100, NOIDA (UP).

35. Vishal Kumar,

S/o Sh. J.N. Sharma, H-1101, Prateek Laural,

Sector-120, NOIDA, Uttar Pradesh.

36. Mrs. Shikha Chaudhary,

W/o Sh. Rahul Choudhary B-2/402, Saviour Park,

Mohan Nagar, Ghaziabad,

Uttar Pradesh.

37. Rahul Choudhary S/o Sh. Rajendra Singh

B-2/402, Saviour Park, Mohan Nagar, Ghaziabad,

Uttar Pradesh.

38. Chandan Singh, S/o Sh. Santosh Kumar Singh,

9B, Una Enclave, Mayur Vihar, Phase-I, Delhi.

39. Santosh Kumar Singh,

9B, Una Enclave, Mayur Vihar,

Phase-I, Delhi

40. Saket Puri,

S/o Sh. Rajender Puri, Pocket A-4/247, Kalkaji Extn.,

New Delhi.

41. Mrs. Nindiya Saket, W/o of Sh. Saket Puri,

Pocket A-4/247, Kalkaji Extn., New Delhi

42. Sajjan Kumar Mishra, S/o Sh. Mathura Mishra,

258, Pocket-3, Paschimpuri,

Delhi.

43. Mrs. Veena Mishra, W/o Sh. Sajjan Kumar Mishra,

258, Pocket-3, Paschimpuri, Delhi.

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44. Sanjiv Kumar S/o Sh. R.K. Singh,

E-98, First Floor, Sector-52, NOIDA,

Uttar Pradesh.

45. Mrs. Nisha Singh, W/o Sh. Sanjiv Kumar

E-98, First Floor, Sector-52, NOIDA,

Uttar Pradesh.

46. Vivek Kumar Vipul, S/o Sh. Virendra Kumar Singh,

S-8/114 B-2A, Plot No.7,

D.I.G. Colony, Khajuri, Maqbool Alam Road,

Varanasi (UP)

47. Nitin Kant Srivastava,

S/o Sh. Satya Prakash, B-85, Sector-15,

NOIDA (UP)

48. Mrs. Arpita Srivastava W/o Sh. Nitin Kant Srivastava,

B-85, Sector-15, NOIDA (UP).

49. Abdul Kamal,

S/o Sh. Sabir Ali, D-17A, Second Floor,

Ganesh Nagar, Delhi.

50. Mrs. Khushnuma

W/o Sh. Abdul Kamal, D-17A, Second Floor,

Ganesh Nagar, Delhi.

51. Kunal

S/o Sh. Satish Kumar, 26/116, West Patel Nagar,

Delhi.

52. Vikram Sinha, S/o Sh. I.P. Sinha,

Pocket G-5, House No.45, Sector-11, Rohini,

Delhi.

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53. Mrs. Ankita Priya, W/o Sh. Vikram Sinha,

Pocket G-5, House No.45, Sector-11, Rohini,

Delhi.

54. Sandeep Kumar Dubey, S/o Sh. Onkar Nath Dubey,

B-1380, Shastri Nagar, Delhi.

55. Mrs. Aradhna

W/o Sh. Sandeep Kumar Dubey, B-1380, Shastri Nagar,

Delhi.

56. Arpit Khandelwal

S/o Sh. Dinesh Khandelwal, C/o Khandelwal Motors,

NH-11, Jaipur Road, Mahwa, Distt. Dausa,

Rajasthan.

57. Sanjeev Gupta, S/o Sh. Ram Niwas Gupta,

C-7/55-A, 1st Floor, Near Peepal Wala Mandir,

Keshav Puram, New Delhi.

58. Mrs. Anjali Gupta, W/o Sh. Sanjeev Gupta,

C-7/55-A, 1st Floor, Near Peepal Wala Mandir,

Keshav Puram, New Delhi.

59. Rajesh Sharma S/o Sh. S.G. Sharma

Flat No.2103, E Block, Supertech Livingston

Crossing Republic, Ghaziabad (UP).

60. Shrish Kumar Pandey,

S/o Late Sh. Prakash Chand Pandey,

C-54, Senior Citizen Home Complex, Pocket-P4, Greater NOIDA,

Gautam Budh Nagar, Uttar Pradesh.

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61. Mrs. Rekha Pandey

W/o Sh. Shrish Kumar Pandey, C-54, Senior Citizen Home Complex,

Pocket-P4, Greater NOIDA, Gautam Budh Nagar,

Uttar Pradesh.

62. Ajay Ram, S/o Sh. Ramchandra Ram,

24-C, Pocket-12, Near Apollo Hospital,

Jasola Vihar, New Delhi.

63. Mrs. Jyotsana Rao,

W/o Sh. Ajay Ram,

24-C, Pocket-12, Near Apollo Hospital,

Jasola Vihar, New Delhi.

64. Varun Sharma

S/o Sh. N.K. Sharma, A-56, Shastri Nagar,

Delhi.

65. Mrs. Ritika Khandelwal W/o Sh. Jitendra Gupta,

510, First Floor, Sector-15, Part-1, Gurgaon,

Haryana.

66. Jitendra Gupta,

S/o Ramesh Gupta, 510, First Floor, Sector-15,

Part-1, Gurgaon, Haryana.

67. Mrs. Jyoti Raisinghani,

W/o Sh. Parkash Raisinghani, House No.7/8, Fruit Garden,

N.H.-5, Opp. Nayyar Nursing Home, NIT Railway Road, Faridabad,

Haryana.

68. Venkatrao Jagarlamudi

S/o Sh. Ramaiah, A-24, Gali No.3, Acharya Niketan,

Mayur Vihar Phase-I, Delhi.

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69. Mrs. Battula Sireesha,

W/o Venkatrao Jagarlamudi A-24, Gali No.3, Acharya Niketan,

Mayur Vihar Phase-I, Delhi.

70. Mrs. Rachna Chattoraj,

D/o Sh. Jagdish Kumar, 160/9, Kishangarh,

New Delhi.

71. Gaurav Shah S/o Sh. Jagdish Chand Shah

B-301, Jeevan Ashray Apartment, Sector-62, NOIDA,

Uttar Pradesh.

72. Mrs. Neha Malviya,

W/o Sh. Gaurav Shah B-301, Jeevan Ashray Apartment,

Sector-62, NOIDA, Uttar Pradesh

73. Prasenjit Sarkar,

S/o Sh. Ranjit Kumar Sarkar, L-46A, Malviya Nagar, 1st Floor,

New Delhi.

74. Jayant Singh S/o Late Prof. Ram Bujhawan Singh,

C/o Anil Kumar Sinha,

House No.64, Road No.6, East Patel Nagar, P.O. Shastri Nagar,

Patna (Bihar).

75. Mrs. Pushpa Sinha W/o Jayant Singh

C/o Anil Kumar Sinha, House No.64, Road No.6,

East Patel Nagar, P.O. Shastri Nagar, Patna (Bihar)

76. Manoj Kumar Shukla

S/o Sh. Shriram Shukla Vill. Rupi Ka Pura,

P.O. Ramgarh, Lambhua,

Distt. Sultanpur, Uttar Pradesh.

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77. Pankaj Kumar

S/o Sh. Raj Kumar, Flat No.1203, Tower No.A1,

Supertech Livingston, Crossing Republic, Ghaziabad,

Uttar Pradesh.

78. Kumar Gaurav Sinha, S/o Sh. Surendra Kishore Sinha,

Flat No.102-B, Block B, Rajat Vihar, Sector-62,

NOIDA (UP)

79. Narian Singh, S/o Sh. Mohar Singh,

VPO Pipal Tha,

Tehshil Narwana, Distt. Jind, Haryana.

80. Mrs. Neetu Singh

W/o Sh. Sandeep Singh 16/15, Ashok Road,

Shipra Sun City, Indirapuram, Ghaziabad,

Uttar Pradesh.

81. Sandeep Singh S/o Sh. Rajendra Singh

16/15, Ashok Road, Shipra Sun City,

Indirapuram, Ghaziabad,

Uttar Pradesh.

82. Deepanshu Pathak, S/o Sh. G.P. Pathak,

KD-6B, Phase-1, Ashok Vihar, Delhi.

83. Mrs. Rachna Deepanshu,

W/o Sh. Deepanshu Pathak, KD-6B, Phase-1, Ashok Vihar,

Delhi

84. Mrs. Manju Singh, W/o Sh. S.N. Singh,

Flat No.203, Ram Bilas Enclave,

Lohanipur East, Kadam Kuan, Patna,

Bihar.

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85. Venu Vedant,

S/o Sh. S.N. Singh, Flat No.203, Ram Bilas Enclave,

Lohanipur East, Kadam Kuan, Patna,

Bihar.

86. Ritesh Rohatgi, S/o Sh. Dinesh Rohatgi,

B-10, 167-A, Udaigiri-2, Sector-34, NOIDA,

Uttar Pradesh.

87. Mrs. Ragini Rohatgi, W/o Sh. Ritesh Rohatgi,

B-10, 167-A, Udaigiri-2, Sector-34, NOIDA,

Uttar Pradesh.

88. Mrs. Mamta Pandey, D/o Sh. Santosh Kumar Pandey,

127/1077, First Floor, W1 Block, Saket Nagar,

Kanpur (UP).

89. Rahul Gaurang, S/o Sh. R.N. Sahai,

RQ-408, My Home Jewel, Mainaguda, Miyapur,

Hyderabad (AP)

90. Mrs. Pratibha Khanna W/o Sh. Rajinder Kumar Khanna,

E-2/1/21, Sector 15, MIG Flats, Shree Apartments, Rohini,

Delhi

91. Rajinder Kumar Khanna,

S/o Late Sh. H.L. Khanna, E-2/1/21, Sector 15, MIG Flats,

Shree Apartments, Rohini, Delhi.

92. Manoj Kumar S/o Sh. Ram Pravesh Sharma

41, BN-BSF, Maheshpur, P.O. Merul, Raigang,

Distt. Uttar Dinajpur, West Bengal.

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93. Raj Kumar Poddar S/o Late Badri Prasad Poddar,

E-603, Halwasiya Utsav Enclave, Opp. Hal, Faziabad Road,

Lucknow, UP.

94. Abhinav Prakash S/o Sh. H.L. Srivastava,

House No.423, Lane No.3, First Floor, Sector-12,

Prem Nagar, Gurgaon, Haryana.

95. Mrs. Khursheed

W/o Sh. Mirza Imtiyaz,

House No.4/60L, Badam Nagar, Jamalpur, Aligarh,

Uttar Pradesh

96. Mirza Ishaan, S/o Sh. Mirza Imtiyaz,

House No.4/60L, Badam Nagar, Jamalpur, Aligarh,

Uttar Pradesh.

97. Imran Khan S/o Md. Ali Khan,

House No.SS-81, Moti Jheel Colony, Aaish Bagh, Lucknow,

Uttar Pradesh.

98. Mrs. Arshi

W/o Sh. Imran Khan House No.SS-81, Moti Jheel Colony,

Aaish Bagh, Lucknow, Uttar Pradesh.

99. Vicky Jaswal,

S/o Sh. Hem Raj Jaswal, House No.J1-413, Second Floor,

Alaknanda, New Delhi.

100. Sanjay Goswami,

S/o Sh. S.K. Goswami,

House No.15, Vinayak Vihar, Shamshabad Road,

Near St. Mary’s Convent School, Agra, Uttar Pradesh.

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101. Jaiveer Singh,

S/o Sh. L.R. Bansiwal, House No.F5, Konark Oasis,

Alwar Bypass Road, Bhiwadi, Rajasthan.

102. Mrs. Bhawna Bansiwal,

W/o Sh. Jaiveer Singh, House No.F5, Konark Oasis,

Alwar Bypass Road, Bhiwadi, Rajasthan

103. Shikhar Gupta,

S/o Sh. Sanjay Gupta, House No.111,

Abhinav Apartments,

Vasundhara Enclave, New Delhi.

104. Sh. Sanjay Gupta,

S/o Sh. Bharat Bhushan Gupta, House No.111,

Abhinav Apartments, Vasundhara Enclave,

New Delhi.

105. Santosh Prasad, S/o Sh. Nand Gopal Prasad,

M3-510, Ashiana Aangan, Alwar Bypass Road,

Bhiwadi, Rajasthan.

106. Mrs. Juhi Gupta,

W/o Sh. Santosh Prasad, M3-510, Ashiana Aangan,

Alwar Bypass Road, Bhiwadi, Rajasthan

107. Ravi Kumar

S/o Sh. Anil Kumar Pandey, House No.235, Road No.4,

Near Neelkanth Apartment, Hatia Station Road,

Birsa Nagar, Doranda, Ranchi, Jharkhand.

…..Petitioners

Versus

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1. Union of India

through its Secretary, Ministry of Finance,

Government of India, 3rd Floor Jeevan Deep Building,

Sansad Marg, New Delhi-110001.

2. Ministry of Corporate Affairs,

through its Secretary, Government of India,

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

New Delhi-110001.

3. Amrapali Silicon City Pvt. Ltd.,

through its Director, 307, 3rd Floor, Nipun Towers,

Community Centre, Karkardooma,

Delhi-110092.

4. Amrapali Centurian Park Pvt. Ltd., through its Director,

307, 3rd Floor, Nipun Towers, Community Centre,

Karkardooma, Delhi-110092.

5. Bank of Baroda,

through Managing Director,

Corporate Financial Services Branch, 1st Floor, Bank of Baroda Building,

16, Parliament Street, New Delhi

6. Reserve Bank of India, through CGM,

16th Floor, Central Office Building, Shahid Bhagat Singh Marg,

Mumbai-400001.

7. Greater NOIDA Industrial Development Authority, Plot No.1, Knowledge Park 04,

Greater NOIDA

Gautam Budh Nagar, Uttar Pradesh.

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8. State of Uttar Pradesh,

through Chief Secretary, Ministry of Urban Development,

Government of Uttar Pradesh, Room No.824, Bapu Bhawan,

Lucknow, UP.

9. Sh. Rajesh Samson Interim Resolution Professional

Deloctle Touche Tanmatsue India LLP 7th Floor, Building 10, Tower B,

DLF Cyber City Complex, DLF City Phase-2,

Gurgaon, Haryana. ….RESPONDENTS

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

To,

The Hon’ble Chief Justice of India

and Hon’ble Companion Judges of

the Supreme Court of India.

The humble petition of the Petitioners abovenamed;

MOST RESPECTFULLY SHOWETH :

1. The Petitioners are filing the present Writ Petition under

Article 32 of the Constitution of India seeking enforcement of

their fundamental rights, more particularly, the rights flowing

from Articles 14 and 21 of the Constitution of India inasmuch as

these rights have been seriously abrogated by the provisions of

the Insolvency and Bankruptcy Code, 2016 (Code) which

completely takes away the constitutionally guaranteed equal

protection/treatment and the right to live with dignity and self-

respect in the course of resolution process of an indebted

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builder, like Amrapali Silicon City Pvt. Ltd (Respondent No.3),

which is the 98.84% shareholder of Amrapali Centurian Park Pvt.

Ltd. (Respondent No.4). The Petitioners are praying for

issuance of the writ of mandamus thereby striking down Sections

14, 33, 53 and 238 of the Code as ultra vires Article 14 and 21

of the Constitution of India. The Petitioners, in the alternative,

are also seeking writ in the nature of mandamus directing the

Respondents to treat the debts owed to the home buyers to rank

equally with creditors specified under Section 53 (1) (b) of the

Code. The Petitioners are seeking further writ, orders, directions

including the writ in the nature of certiorari quashing the Order

dated 04.09.2017 passed by the National Company Law

Tribunal, New Delhi Principal Bench [NCLT] in the Case No.CP

No.(IB)-121(PB)/2017 since the moratorium imposed by it under

Section 14 is violative of Article 14 of the Constitution.

2. The facts leading to the filing of the present Writ Petition

are as under :

3. On 17.02.2011, the Respondent No.4, M/s. Amrapali

Centurion Park Pvt. Ltd, (subsidiary of Respondent No.3) had

acquired right, title and interest in Group Housing Plot No.GH-

05, Tech Zone, IV, Greater NOIDA, District Gautam Budh Nagar,

Uttar Pradesh admeasuring 272916 sq. meters from Greater

NOIDA Industrial Development Authority (GNIDA) and thereafter

announced a residential project “Amrapali Centurion Park”

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consisting of more than 5000 flats in approximately 40 Towers in

phase manner in the names of “Amrapali Centurion Park-Low

Rise”, “Amrapali Centurion Park-Terrace Homes” and “Amrapali

Centurion Park-Tropical Garden”.

4. To allure the home buyers, glitzy Brochure and

advisements were published by the Respondent No.3 and 4

thereby apart from 36 months delivery period, other world class

facilities and amenities were promised by the builder.

5. Believing the representations by the Respondent Nos.3 and

4, thousands of unassuming buyers have booked their

apartments during 2010- 14 by paying the booking amount

running into several crores. Thereafter, the home buyers were

made to sign on dotted lines the Standard Form of Allotment

cum Flat Buyer Agreements after payment of almost 30% - 40%

of the total consideration faced with the threat of forfeiture of

huge booking amount. The terms and conditions contained in

the Allotment cum Flat Buyer Agreement were oppressive,

unreasonable, unfair and unconscionable leaning heavily in

favour of the builder. As per Clause 11, the timely payment,

not the timely completion of the project, was made the essence

of the contract stipulating that if there was a failure to pay any

of the installment by the buyer, the interest would be levied @

18% per annum for one month and 24% per annum upto next

two months. It further stated that, “If the allottee defaults in

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making payment of the outstanding amount for three

consecutive months, the allotment shall automatically stand

cancelled without any prior notice to the allottee and the allottee

thereafter shall have no charge, lien, interest, right or any other

claim on the flat and the developer shall refund the amount paid

over and above the earnest money, if any, without any interest

after reducing there from the amount of interest on delayed

payment within 30 days of the cancellation.” Under Clause 12,

10% of the basic sale price constituted the earnest money.

6. In brazen demonstration of abusive conduct, under clause

14, the builder authorized itself ‘to raise finance/loan from any

financial institution/bank by way of mortgage/charge/

securitization of receivable of the land and the flats and the

Allottee will have no objection in this regard’. The one-sidedness

of the contract further found expression in Clause 15

whereunder till execution of the sub-lease deed, the builder

would keep full authority over the flat depriving the Allottee of

any lien or interest despite paying the entire amount thereof.

7. Under Clause 19 (a), the builder was obliged to complete

the flat within 30 months from the date of commencing the

excavation/signing of agreement which may be vary for

plus/minus 6 months. Under Clause 19 (c), in case of delay in

construction of flat, the builder very conveniently sought to

stand released by paying a paltry sum of Rs.5/- per sq. ft. of

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super area per month for the delay period, which would include

any/all damages, compensation, claims for delayed possession.

The exploitative content of the Agreement comes unfolding when

the default penalties of 18% per annum and Rs.5/- per sq. ft.

respectively foist on the buyer and the builder are set in

comparison.

Relevant Clauses of the Buyer’s Agreement dated

30.01.2012is annexed herewith as ANNEXURE-1.

8. However, acting in reliance on the assurances made by the

Respondent Nos.3 and 4, more particularly, that they would

deliver the flats well within time, the Petitioners and other

similarly situated flat buyers running into more than 3,000

buyers made payments totaling to several hundreds crores of

rupees to the extent of 50% - 100% abiding by the payment

schedule.

9. Giving serious jolt to the home buyers who have paid their

hard earned money and life savings into funding the purchase of

their dream homes, the Respondent Nos.3 and 4 were found in

serious breach of their obligation to deliver the flats within 36

months, i.e. by 2013 in some cases it is 2016. The default of

the Respondent Nos.3 and 4 continued unabated despite several

revised dates of possession unilaterally extended by the

Respondents. No compensation for this abject failure of the

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Respondent Nos.3 and 4 to deliver the flats had been paid to the

buyers.

10. It is submitted that some of home buyers entered into

Memorandum of Understanding with the Respondent No.4

whereby it was agreed that the Respondent No.4 had agreed to

allot the flat to the home buyer in the said Project, under “No

Pre-EMI till 36 months or till the date of intimation of possession

whichever is earlier”. The tenure of the said subvention scheme

has approved by the concerned bank/financial institution is 36

months. It was also undertaken by the builder that if due to any

reason, the possession offer of the booked unit gets delayed, the

builder undertakes to pay the EMI only to the buyer even after

36 months. It is submitted that the Respondent No.4 has not

complied with the said subvention scheme as the buyer is

making the payment of EMIs to the banks thereby causing a

double loss of EMI, rent and non-delivery of said flats.

11. It is submitted that since the handover of possession to

the home buyers by the Respondent Nos.3 and 4 non-happening

event, the beleaguered home buyers, who had been reeling

under the dual burden of high interest EMI and house rents,

knocked the door of National Consumer Disputes Redressal

Commission, New Delhi [NCDRC] by filing Consumer Complaints

No.213 of 2017 under Section 12 (1) (c) of the Consumer

Protection Act, 1986 inter-alia seeking an immediate 100%

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refund of the total principal amount paid by all the

consumers/buyers in the “Amrapali Centurian Park” alongwith a

penal interest @ 18% per annum from the date of receipt of

payments made to the builder.

12. In the meanwhile, the Bank of Baroda filed C.P. No.(IB)-

121(PB)/2017 before NCLT under Section 7 of the Code for

triggering the Corporate Insolvency Resolution Process in the

matter of Amrapali Silicon City Pvt. Ltd. (Respondent No.3).

13. On 04.09.2017, the NCLT admitted the Company Petition

and appointed the Interim Resolution Professional. Moratorium

in terms of Section 14 of the Code was also declared imposing

the following restriction:

“(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 debtor any of its assets or any legal

right or beneficial interest therein;

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(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.”

Copy of the Order dated 04.09.2017 passed in C.P.

No.(IB)-121(PB)/2017 by NCLT is annexed herewith as

ANNEXURE-2.

14. It is submitted that the Order passed by NCLT has direct

bearing on the home buyers of Amrapali Centurian Park Pvt. Ltd.

(Respondent No.4), which is virtually owned by Amrapali Silicon

City Pvt. Ltd. (Respondent No.3) with 98.84% shareholdings.

The moratorium imposed by the NCLT prohibiting institution or

continuation of any suit or proceeding against the Respondent

No.3 also affects the home buyers of Respondent No.4, which is

subsidiary of the Respondent No.3. Both the Companies,

holding and subsidiary, are run by almost same set of Directors

including Mr. Anil Kumar Sharma and Mr. Shiv Priya. Therefore,

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the resolution process triggered in respect of the Respondent

No.3 cannot be viewed in isolation and divorced from the

Respondent No.4 since its 98.84% shareholding is held by the

Respondent No.3. With 98.84% of its equity holding falling into

the liquidation pool of the Respondent No.3, the Respondent

No.4 also faces the prospect of liquidation as its net assets have

been devaluated to the extent of disinvestment of its 98.84%

shareholding. The Order passed by NCLT has by default

triggered the liquidation of the Respondent No.4 as well since its

networth has substantially eroded.

15. It is submitted that in similar circumstances, this Hon’ble

Court on 11.09.2017 by passing an order in Writ Petition (Civil)

No.744 of 2017 has directed the Interim Resolution Professional

to formulate and submit Interim Resolution Plan within 45 days.

It has been further directed that the Plan shall make all

necessary provisions to protect the interest of the home buyers.

Copy of the Order dated 11.09.2017 passed in Writ

Petition (Civil) No.744 of 2017 by this Hon’ble Court is annexed

herewith as ANNEXURE-3.

16. The present Writ Petition is being filed on the following

amongst other grounds :

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GROUNDS

A. BECAUSE the Code strikes at the very foundation of

equality Clause 14, enshrined in Part III of the Constitution

of India, in its introductory note by primarily confining it to

reorganization and insolvency resolution of corporate

persons in a time bound manner for maximization of its

value of assets. The declaration to balance the interest of

all stakeholders is only in letter and not in spirit as several

provisions of the Code lends preference to secured

creditors and the interest of stakeholders such as the

home buyers has been relegated to the backburner

although the home buyers cannot be treated differently

from the secured creditors so far as the distribution of the

proceeds from the sale of liquidated asset is concerned.

B. BECAUSE the different categorization made in Section 53

of the Code is irrational and cannot be called reasonable

classification founded on intelligible differentia having

nexus to any object sought to be achieved by the Code.

C. BECAUSE the Section 53 of the Code is not meting out

equal treatment to the home buyers and the secured

creditors fall foul of Article 14 of the Constitution. It is

submitted that the home buyers have put their lives at

stake by paying their savings and hard earned money into

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the purchase of flats. As such they cannot be categorized

as ordinary financial creditors to rank pretty low in order of

priority under Section 53. Going by the normal dynamics a

corporate builder heavily counts upon the home buyers as

stakeholders to sustain in the market. It is highly

inconceivable unless it happens at the sacrifice of Article

14, that home buyers who lent their shoulder to build the

edifice of a corporate debtor be pushed way down the

order of preference during distribution of its proceeds in

the event of liquidation.

D. BECAUSE apart from operating unequally between the

equally footed stakeholders Section 53 also seriously

violates the right to life of the homebuyers guaranteed by

Article 21 of the Constitution as by subjecting the home

buyers to the liquidation proceedings of discriminatory

nature, the very survival of the home buyers has been

seriously jeopardized as share of proceeds they get would

be exceedingly disproportionate to the amount paid by

them. Not only do the home buyers lose the entire

money with accrued interest but they also became

financially crippled for all time to come even close to

dream of a new home, let alone purchase it.

E. BECAUSE the Code is further vitiated by inherent flaws of

Sections 7, 8 and 9 which leaves much room for

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manipulation at the hands of corporate debtor who can get

the insolvency process initiated by a favoured financial or

operational creditor. The resolution process may be

maneuvered in such a manner that the resolution plan falls

through culminating into the liquidation of the corporate

debtor. The home buyers, who are identically footed to,

financial creditors and operational creditors are, therefore,

deprived of equality before and equal protections of the

law as Sections 7, 8 and 9 of the Code do not envisage

grant of hearing to non-applicant creditors at the threshold

stage.

F. BECAUSE Section 14 of the Code also functions unequally

amongst the equals as the moratorium imposed by it on

ongoing suits/proceedings directly affects the home buyers

of Amrapali Centurion Park while similarly situated lacs of

buyers across the country do not face any legal restraint to

prosecute their remedies against the builders.

G. BECAUSE Section 238 of the Code which gives overriding

effect to the provisions of the Code is ultra vires Article 21

of the Constitution as it directly infringes upon right to

survive of the home buyers who have been pursuing

proceedings before the NCDRC to enforce their paramount

claim to possession of the flats or refund of their sale

consideration running into several hundreds of crores of

rupees. It is submitted that the Consumer Protection Act,

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1986 is a welfare legislation and legislature in its wisdom

to keep its functions untrammeled has conferred exclusive

jurisdiction on it under Section 3 of the Consumer

Protection Act. The Act, therefore, continues to retain its

paramountcy which cannot be subordinated to the Code.

H. BECAUSE Section 33 of the Code is wholly arbitrary and

unreasonable failing the test of Articles 14 and 21 of the

Constitution of India since on failure of the resolution plan,

the Adjudicating Authority would straightway order

liquidation of the corporate debtor. Since the very

liquidation process faces constitutional issues of violations

of Article 14 of the Constitution, Section 33 of the Code

also calls for its examination on the touchstone of

fundamental rights.

I. BECAUSE apart from being discriminatory, Section 53 of

the Code by creating division between secured and

unsecured financial creditors contradicts Section 3 (1)) of

the Code which while defining creditor does not make

distinction between secured and unsecured creditors.

J. BECAUSE the home buyers have invested their hard

earned money assured by the promise made by the

Respondent Nos. 3 and 4 to deliver the residential flats

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within between 30 to 36 months. Bulk of the home buyers

constitutes low to middle income category and large

number of them having obtained loans on interest to

ensure the timely payment to the Respondent Nos.3 and 4.

Some of the home buyers have also opted for subvention

scheme promoted by the Respondents. However, the

builder defaulted in delivering possession of the flats to the

home buyers by several years in spite of the home buyers

complying with all the terms and obligations and payment

schedule of the builder. In fact, the home buyers have

suffer double whammy. On one hand, the Respondents

who have extracted around 50% - 100% of the total sale

consideration, while on the other, Flat Buyers continue to

pay the high interest-ridden EMI even as the delivery of

possession is highly unlikely in near future.

17. The Petitioners state that they have no other alternative

equally efficacious remedy except by means of the present

petition.

18. The Petitioners submit that this Hon’ble Court has the

requisite jurisdiction to entertain the present writ petition and

adjudicate upon the issues arising therefrom.

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19. The Petitioners have not filed any other Writ Petition

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

subject matter of this petition.

20. The present writ petition is moved bonafide and in the

interest of justice.

PRAYER

In the facts and circumstances, it is respectfully prayed

that this Hon’ble Court may graciously be pleased to;

(a) pass writ, order or direction including 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

buyers as consumers defined under Section 2 (d) of the

Consumer Protection Act, 1986; in the alternative,

(b) pass writ, order or direction including writ in the nature of

mandamus striking down Sections 14, 33, 53 and 238 of

the Insolvency and Bankruptcy Code, 2016 as ultra vires

Article 14 and 21 of the Constitution of India;

(c) in the alternative, pass writ, order or direction including

the writ in the nature of mandamus directing the

Respondents to treat the debts owed to the home buyers

like the Petitioners herein to rank “pari-passu” with the

creditors specified under Section 53 (1) (b) of the Code, or

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direct the Respondents to declare the flat 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 Code;

(d) pass writ, order or direction including the writ of certiorari

quashing the Order dated 04.09.2017 passed by the

National Company Law Tribunal, New Delhi Principal Bench

[NCLT] in the Case No. CP No.(IB)-121(PB)/2017 since the

moratorium imposed by it under the Section 14 is violative

of Article 14 of the Constitution of India;

(e) pass writ, order or direction restraining the Interim

Resolution Professional from creating any third party

interest in the subject project;

(f) pass appropriate Writ order or direction safeguarding the

interest of the Petitioners, particularly, the amount paid by

them to the Respondent No. 4; and

(g) pass such other or further order[s] as this Hon’ble Court

may deem fit and proper in the facts and circumstances of

the present case.

DRAWN BY :

M.L. LAHOTY

ADVOCATE Supreme Court of India

Drawn on : 20.09.2017

FILED BY :

HIMANSHU SHEKHAR

ADVOCATE ON RECORD FOR THE PETITIONERS

Filed on : 20.09.2017

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INDEX

Sl. No.

Particulars of Document Page Nos. of part to which it belongs

Remarks

Part-1

(contents of paper

books)

Part-2

(contents of paper

books)

(i) (ii) (iii) (iv) (v)

1 Office Report on

Limitation

A A

2 Listing Performa

A1 – A2

3 Cover page of paper

book

A3

4 Index of Record proceedings

A4

5 Limitation Report prepared by Registry

A5

6 Defect List

A6

7 Note Sheet

8 Synopsis & List of Dates

B – G

10 Writ Petition with

affidavits.

1 - 100

11 APPENDIX Articles 14 & 21 of COI

Sections 14, 33, 36, 53

and 238 of IB Code

101

102 - 108

12 ANNEXURE-A1 Relevant Clauses of the

Buyer’s Agreement dated 30.01.2012.

109 -117

13 ANNEXURE-A2 Copy of the Order dated

04.09.2017 passed in C.P. No.(IB)-121(PB)/

2017 by NCLT.

118 - 140

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14 ANNEXURE-A3

Copy of the Order dated 11.09.2017 passed in

Writ Petition (Civil) No.744 of 2017 by this

Hon’ble Court .

141 - 146

15 Filing Memo

16 Vakalatnama

17 Letter to Advocate

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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 :

Bikram Chatterji & Ors. ….Petitioners

Versus Union of India & Ors. ….Respondents

PAPER BOOK

[KINDLY SEE INSIDE FOR INDEX]

ADVOCATE FOR THE APPELLANT : MR. HIMANSHU SHEKHAR