2024 (3) TMI 1465 - HC - Indian Laws

Scope of further redevelopment of society where moratorium under Section 14 of the IBC is in operation - entire argument of the RP is predicated on a false assumption that there are vested rights in the free sale component which can be delinked from obligations under the DA - HELD THAT - While AA Estates grinds its way through a CIRP the result of which may be entirely uncertain and might well result in an order of liquidation rather than of a successful resolution plan these society members cannot hope to see their redeveloped homes. They can receive no transit rent. They must remain where they are. The IBC and the corporate fortunes or misfortunes of AA Estates must prevail over the basic and fundamental rights of society members. Because AA Estate is trying to revive itself society members must be without shelter and forced either into penury or at the very least to pay from their own pockets that which AA Estates was bound to pay and failed to pay. There is a sufficient prima facie case that the balance of convenience favours the Petitioners and that irretrievable prejudice will undoubtedly be caused to the members of the society if relief is not immediately granted to grant interim relief - there is no prohibition on a Court and especially not on a Writ Court in fashioning an appropriate interim relief where the surrounding circumstances urgently demand it. Rule is returnable in the normal course.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court include:

• Whether the moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016 (IBC) prevents redevelopment activities by a new developer after termination of the Development Agreement (DA) with the original developer undergoing Corporate Insolvency Resolution Process (CIRP).
• Whether the original developer, who is in CIRP, holds any vested rights or proprietary interest in the redevelopment project or the free sale component under the DA, especially when it has defaulted on key obligations such as payment of transit rent and timely construction.
• The legal effect of termination of the DA by the society on the rights of the original developer and the consequent ability of the society to engage a new developer for redevelopment.
• The balance between the objectives of the IBC to revive corporate entities and the fundamental rights and interests of society members awaiting redevelopment, including their right to transit rent and shelter.
• The scope of interim relief and the Court's power to grant such relief even when not specifically prayed for, in circumstances where irreparable harm to society members is imminent.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Effect of Moratorium under Section 14 of the IBC on Redevelopment by a New Developer

Relevant Legal Framework and Precedents: Section 14 of the IBC imposes a moratorium on proceedings against the corporate debtor and bars any action to foreclose, recover or enforce any security interest or transfer, alienate or dispose of any assets of the debtor during CIRP. The purpose is to provide a breathing space for revival or resolution.

Court's Interpretation and Reasoning: The Court observed that the moratorium cannot be extended to prevent redevelopment activities by a new developer after the DA with the original developer has been terminated. The moratorium protects the corporate debtor's assets but does not grant the debtor vested proprietary rights when contractual obligations have been breached and the DA terminated.

Application of Law to Facts: In this case, the original developer, AA Estates, was in default of transit rent payments and construction deadlines. The society terminated the DA and engaged a new developer, Truearth. The RP of AA Estates claimed that redevelopment could not proceed due to the moratorium, but the Court found this argument legally incorrect, as AA Estates never had ownership of the property and its rights were contingent on fulfilling DA obligations.

Treatment of Competing Arguments: The RP's contention that the redevelopment project was an "asset" of AA Estates protected by the moratorium was rejected. The Court emphasized that such rights are not vested and cannot be separated from the developer's performance of contractual obligations.

Conclusion: The moratorium under Section 14 of the IBC does not bar redevelopment by a new developer once the original developer's DA is terminated for defaults.

Issue 2: Nature of Rights of the Original Developer under the Development Agreement

Relevant Legal Framework and Precedents: Contractual principles govern the rights and obligations under the DA. Rights to free sale components and other benefits are conditional upon the developer's performance, including payment of transit rent and completion of construction on schedule.

Court's Interpretation and Reasoning: The Court held that AA Estates had only contingent or conditional rights under the DA, dependent on fulfilling its obligations. Failure to pay transit rent and meet construction timelines amounted to a complete failure of consideration, resulting in no vesting of rights.

Key Evidence and Findings: The society terminated the DA due to defaults by AA Estates. MHADA had found the structure dangerous, necessitating evacuation. Society members vacated and were being provided transit rent by the new developer.

Application of Law to Facts: Since AA Estates failed to meet its DA obligations, it could not claim any vested rights or proprietary interest in the redevelopment project or free sale component.

Treatment of Competing Arguments: The RP's assumption that free sale rights were independent and vested was rejected as "an inconceivable position in law."

Conclusion: The original developer's rights under the DA are conditional and extinguished upon failure to perform; no vested proprietary rights survive termination.

Issue 3: Balancing Corporate Insolvency Objectives with Rights of Society Members

Relevant Legal Framework and Precedents: The IBC aims to revive corporate entities but must be balanced against equity and fundamental rights of individuals affected by corporate defaults. Previous judgments, including those addressing similar redevelopment disputes, have recognized the need to protect residents' rights.

Court's Interpretation and Reasoning: The Court condemned the inequity of allowing corporate revival at the cost of society members' rights to shelter and transit rent. It emphasized that residents cannot be left homeless or forced to pay out of pocket due to the corporate debtor's insolvency.

Key Evidence and Findings: Society members were vacated from dangerous premises and reliant on transit rent from the new developer. The RP's stance threatened to leave them without shelter or financial support.

Application of Law to Facts: The Court prioritized the fundamental rights and equitable interests of society members over the uncertain outcome of the CIRP of AA Estates.

Treatment of Competing Arguments: The RP's argument that IBC protections should prevail over residents' rights was rejected as "a widespread perversion of every concept of justice, equity and law."

Conclusion: Corporate insolvency processes cannot override the basic rights of society members to housing and transit rent.

Issue 4: Court's Power to Grant Interim Relief Not Specifically Prayed For

Relevant Legal Framework and Precedents: Courts have discretion to grant interim relief that substantially replicates final relief where circumstances demand urgent intervention to prevent irreparable harm.

Court's Interpretation and Reasoning: Although the Petition did not specifically pray for interim relief, the Court found a prima facie case and balance of convenience favoring the society members. It recognized that irretrievable prejudice would result if relief was denied.

Application of Law to Facts: The Court granted ad interim relief directing relevant authorities to grant necessary permissions and revalidate the NOC for redevelopment, subject to the new developer not claiming equities against the original developer.

Conclusion: The Court exercised its inherent power to fashion appropriate interim relief in the interest of justice and equity.

3. SIGNIFICANT HOLDINGS

"The Resolution Professional ('RP') of the company in CIRP is in no position to pay transit rent to those who are affected. He is no position to carry on the re-development."

"The entire argument of the RP is predicated on a false assumption that there are vested rights in the free sale component which can be delinked from obligations under the DA. This is an inconceivable position in law."

"Corporate resuscitation will not be permitted at the cost of individual city residents' rights to have a redeveloped home and to receive transit rent."

"There is no prohibition on a Court and especially not on a Writ Court in fashioning an appropriate interim relief where the surrounding circumstances urgently demand it."

The Court established that the moratorium under Section 14 of the IBC does not prevent redevelopment by a new developer once the original developer's DA is terminated for defaults. It emphasized that rights under the DA are conditional and extinguished upon non-performance. The Court underscored the primacy of equity and fundamental rights of society members over the uncertain fortunes of a corporate debtor in CIRP. Finally, it affirmed the Court's discretion to grant interim relief even if not specifically prayed for, where urgent circumstances require it.