Point of Law: Article 226 of our Constitution confers extraordinary jurisdiction on the High Courts not only to issue prerogative writs for the enforcement of Fundamental Rights but also for ‘any other purpose’ it is wide and expansive, although discretionary and equitable.

ORDER :

1. All these petitions broadly having common questions of law and facts inter-alia seek to lay a challenge the coercive recovery measures of Housing Loans by the Respondent- lending agency i.e. Punjab National Bank Housing Finance Limited (hereafter ‘PNBHFL’). They have also sought for a Writ of Mandamus directing the said Bank to refund the payments already made by them in terms of orders made by the Adjudicating Officer of RERA and to issue a ‘No Due Certificate/No Objection Certificate’ by rectifying their individual CIBIL Scores and removing the entries in the loan records which show outstanding amounts of money against their names.

2. After service of notice, the respondents are represented by their respective advocates. The answering respondents have filed their Statements of Objections opposing the writ petitions. Their advocates make submissions resisting the petition prayers, mainly contending that dispute is contractual in nature and therefore, petitioners should be relegated to other civil remedy forum, writ court not being appropriate for adjudication of lis of the kind. They also point out that the petitioner-borrowers in terms of loan agreements are bound to discharge the outstanding loans and that they have given certain letters undertaking to do it when the builder failed to. They also press into service “suppressio veri” and “suggestio falsi.” So contending, they seek dismissal of these petitions.

3. BRIEF FACTS OF THE CASE:

(i) All the petitioners had booked their apartment units with the Respondent-Developer i.e. M/s Mantri Developers Private Limited, in terms of “Pre-EMI Scheme” i.e. Pre-Sanctioned loans vide Tripartite Loan Agreements entered into by and between the Petitioners, Developer and the PNBHFL. Not being happy with the pace of construction, they withdrew their bookings with intimation to PNBHFL and the same came to be endorsed by the Developer. However, in terms of arrangement, the PNBHFL had disbursed the loan amount directly to the Developer allegedly without ascertaining the stages of construction, though the extant RBI Circulars mandate such ascertainment.

(ii) Petitioners too had made certain payments to the Developer towards their contribution which included the remittance of ‘margin monies’. Despite withdrawal from the project, they did not get their monies back from the Developer and therefore had complained to the RERA under Section 31 of the Real Estate (Regulation and Development) Act, 2016. Obviously PNBHFL was not a party to these proceedings. The RERA directed the Developer “to return the own contribution amount to the complainant within 30 days…if not, it will carry interest at 10.25%.” It also directed the Developer “to discharge the loan raised in the name of the complainant with all its EMI and interest if any.”

(iii) The Developer having not obeyed the orders of the RERA, coercive proceedings for the recovery of housing loans were taken up by the PNBHFL and this gave the ‘base cause of action’ for the petitioners to structure these Writ Petitions for restraining the same and for seeking allied directions in the Writ jurisdiction.

4. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons:

(a) There have been Tripartite Housing Loan Arrangements between the Petitioners, the Developer and PNBHFL, is not in dispute. Clause (f) in the Tripartite Agreement has the following text:

“(f) If the Borrower desires to withdraw and/or in case of death of Borrower and/or if Borrower fail to pay the balance amount representing the difference between the loan sanctioned by PNBHFL and the actual purchase price of the said property, the entire amount advanced by the PNBHFL will be refunded by the Developer as agreed in the Agreement of Sale and Agreement of construction after deduction of cancellation charges to PNBHFL forthwith.”

There is a lot of force in the vehement