But, in recent years it has been discovered that few FIRs have been lodged against the Unitech company for allegedly cheated homebuyers by not delivering them properties purchased from their firm’s housing projects at given time period. The complainants alleged that the company officials have stopped responding to their queries and did not update about the progress and hence, not completing their projects. On the basis of FIR lodged and after a detailed investigation by the police Sanjay Chandra and Ajay Chandra have been accused of offenses under sections 120B (criminal conspiracy), 420 (cheating) and 406 (criminal breach of trust) of the IPC. Thus, on the basis of the result of the investigation, they have been sent to jail in 2017 for an alleged cheating case as against their buyers relating to their housing projects.
The Apex Court has asked the company to file an affidavit mentioning the details of its unencumbered properties and its subsidiaries situated both in India and abroad. But the promoters have failed to provide the details for the same. The court has added that failure to provide true affidavit would initiate proceeding under Sec 304 of Cr. PC (the court can record a complaint on the veracity of the documents produced before it).
The court asked the Pioneer Urban Land and Infrastructure Ltd. which is a partner of Unitech to deposit Rs 40 crore-Rs 30 crores by 30th March and remaining by April 5, 2018.
The firm moved the court against the execution proceedings going on against the applicants before the National Consumer Disputes Redressal Commission where the Court has held that execution proceeding would stay if the applicants (Pioneer Urban Land and Infrastructure Ltd) deposit Rs.40 Crore before the Registry of the Court. The Court has added that the money will be distributed amongst the home buyers who have claimed a refund in respect of the concerned project before the National Commission.
The court had appointed amicus curiae Pawanshree Agarwal and asked the counsel Nikhil Nayyar who have appeared for those who have approached the National commission seeking relief, to submit their list to amicus curie so that he could tally them with the names in his portal.
Thus, the Supreme Court on 12th March 2018 ordered that it would auction the unencumbered properties of Unitech Ltd, including personal assets of Managing Director Sanjay Chandra, in order to pay back home buyers seeking a refund of their investment.
The Managing Director of JM Financial Asset Restructuring Company Ltd, along with a competent officer was present in the court to answer the questions that have been put by the court. The court has imposed a cost of Rs 25 lakh on J M Financial Asset Reconstruction Company, who has picked up the loan obligation of Unitech towards the HDFC bank and had taken over some loans advanced by HDFC Bank to the completion of 17 projects located in Chennai, Bangalore, Kolkata, and Gurugram.
An analysis of the order passed on 12th March 2018-
The Orders that have been passed against Unitech on 12th of March are of different implications i.e. one order has been passed for a refund of the money which is of civil in nature and one has been passed for auctioning off the assets of the company which is of the criminal in nature. Therefore, we can have the following effect of the order, they are-
Effect of the order passed for Civil Application-
· That the amount of 38 Crores (security deposit) will be disbursed on a pro rata basis among buyers who have obtained a favorable Final Order against Unitech from any Forum (NCLT, etc.).
· This will be done with the help of data available in this regard with the amicus curie Adv Pawanshree Agrawal.
· If the buyers have a favorable Order from NCDRC, they can claim benefit under the said Order of SC
· If they have not pursued any case so far, they need to file intervention application in any of the current ongoing cases in the SC; there are several Civil appeals going on against Unitech, all tagged together. Also, if the project is almost finished and they want possession, they can claim that as well. It is best to be a party in the case if possession has been delayed.
· The SC Order of 12th March is to facilitate payment and refund to the buyers who have filed affidavits in Court and are already parties to the case, and to those who have a favorable Order from the NCDRC etc.
Effect of the order passed for Criminal Application-
· The Criminal Special Leave Application (SLP) Order has given time to the promoters of Unitech to give a list of their unencumbered assets, and the same may be auctioned in future to refund the buyers. The Court has also asked for details of the unencumbered assets of the promoters, as the personal assets may also be auctioned if need be.
· Unencumbered assets mean only those assets of the Company on which no third party has any claim or lien. That is, any flats for which people have paid any amount are ENCUMBERED assets, on which third party (buyers) has a claim; and these will not be auctioned. Only those assets of the company which is entirely free of any third-party claims will be considered in the auction. This includes any other assets of the company excluding already booked flats and property and semi-finished projects and such where buyers have any claim.
NOTE- The matter has been listed on 26th March 2018.