Holding

The Court accepted the Justice Bahri Commission’s report, rejected the objections, and ordered construction with specific conditions, appointment of a judicial officer, and repayment of depositors with interest.

Summary

The Supreme Court examined the findings of the Justice Bahri Commission on alleged diversion of funds by Skipper Construction in the Barakhamba Road project and on the claims of purchasers in the Technology Parks Ltd. schemes. The Court held that the Commission’s detailed valuation and accounting analysis was reliable and rejected the respondents’ objections that the construction costs were understated. It directed that construction at 22 Barakhamba Road may proceed subject to an undertaking by the transferee (Shikha) to refund all depositors with 8% interest, to furnish a bank guarantee, and to refrain from any sale until full payment. The Court also ordered the appointment of a senior judicial officer to scrutinise and settle the remaining claims and to attach any assets acquired with misappropriated funds. Additionally, the Court approved payment of honorarium to the amicus curiae and set the matter for further hearing after four months.

Issues considered

Whether the Justice Bahri Commission's report on diversion of funds should be accepted despite objections.
Whether the construction cost figures presented by the respondents are valid.
Whether the claimants of Technology Parks Ltd. are entitled to refunds or allotments.
Whether construction can be permitted subject to conditions imposed by the Court.
Whether a judicial officer should be appointed to adjudicate the pending claims.
Whether the Court can order a bank guarantee and honorarium to the amicus curiae.

Legislation cited

Companies Act, 1956

Subjects

diversion of fundsreal estate fraudconstruction cost valuationjudicial commission reportrefund with interestappointment of judicial officerbank guaranteespecial leave petitionconsumer protectionattachment of assets

Judgment

.
I

\ DELHI DEVELOPMENT AUTHORITY A
v.
SKIPPER CONSTRUCTION AND ANR.

APRIL 7, 2005

[RUMA PAL, ARIJIT PASAYAT AND C.K. THAKKER, JJ.]
B

Constitution of India, 1950-Articles 129, 136 and 142:

Substantive Justice-Rendering of-Appointment of Justice Bahri
Commission-Direction to look into diversion offunds of Skipper Towers- In C
respect of project 'B '-On the basis of the documents, accounts of Company
were found to be cooked up-Company found to have plundered the purchasers
and harnessed everything to its personal and private advantage-Objections
to the Report-Held: Report of the Commission accepted as it is on the basis
of detailed data- Objection not acceptable as the cost given by the Company D
is hypothetical and based on incomplete and manipulated data.

Diversion of funds of Skipper Towers-In respect of project 'T'-
Company transferred its rights to other Company-Exonerated having
transferred its rights-Transferee Company granted time to pay the claimants-
Permission for construction subject to certain conditions-Direction for E
appointment of a Judicial Officer to scrutinize the claims of all the claimants.

Justice Bahri Commission was appointed pursuant to the order
passed by this Court, directing it to look into diversion of funds of Skipper
Tower (Pvt.) Ltd. In respect of the project at 22, Barakhamba Road,
information furnished to the Commission by the Company were in the F
sha.pe of copies of ledgers and a report of Chartered Accountant.
Commission obtained the copies of the Balance Sheet and Director's
repOits of various companies of Skipper group from the Registrar of '
Companies. The Commission found that Skipper Sales Ltd. and Skipper
Towers Ltd. were two Companies; that Skipper Sales used to give loans G
to its sister concerns; that the project was started initially by Skipper Sales
(Pvt.) Ltd. in 1983. As per balance sheet and financial statement of Skipper
Towers Rs. 12,85,06,335 was collected as booking amount. Company stated
that in respect of the Project Rs. 10,64,51,055 was spent during the period
from 1983 to 1992. But the report of Government valuer showed that the
313 I-I
314 SUPREME COURT REPORTS [2005] 3 S.C.R.

A cost of construction of the basement upto 10th floor was Rs. 36,89,312.
The total expenditure for the project was Rs. 6,47,77,714. The balance of
Rs. 6,37 ,28,621 was used for giving loans to sister concerns. The
Commission observed that the Skippers plundered the purchasers and
harnessed everything to personal and private advantage.

B Company objected to the report of the Commission that the cost of
construction had been taken at a lower figure, and with reference to
CPWD rates and Plinth Area rates of MCD, the cost of construction was
much higher.

C In respect of the project Technology Parks Ltd. at Vaishali Parks
Apartment, Plot Nos.23 and 26 were allotted by Ghaziabad Development
Authority to 'K' and 'C' respectively. The possession of the plots were
handed over to them. As they had not paid the bahince 50% of the amount,
the allotments were cancelled. In the meantime 'K' had constructed bare
structure upto 9 floors including the basement against sanction of 15 floors,
D but no booking had been done for sale of flats. 'C' claimed that the total
cost of construction incurred by it was Rs. 2,17,00,000 and it h~d collected
Rs. 1,43,29,344 as booking amount. 'K' and 'C' transferred their rights
to Technology Parks Ltd. (TPL) for a consideration of Rs. 8775 lakhs and
30 lakhs respectively. Subsequently both the plots were transferred to 'S'
by Technology Parks Ltd. (TPL) 619 people claimed to have made the
E booking in the respective plots. Out of them 360 claimants sought refund
of their amounts and 230 claimed for allotment. There were only 28
sanctioned plots as against 230 claimants. 'S' had deposited the balance
amount with GDA and it was considered fresh sanction.

p Before this Court allottees claiming allotment were ready to accept
the refund. TPL submitted that since it had transferred the interest to 'S',
it had no subsisting interest. 'C' claimed that the deposit made by 'S' to
GDA was on its behalf. 'S' submitted that if it is granted time, it will pay
all the claimants and if construction is permitted, it will refund the amount
with interest.
G
Adjourning the matter with certain directions, the Court

HELD : 1.1. There is substance in the Commission's findings that
the accounts were cooked up in respect of project 'B'. Copies of certain
ledger accounts were produced before the Commission. It noticed that
H white fluid was used to obliterate the entries. A rather vague and fanciful
DELHI DEVELOPMENT AUTHORITY 11. SKIPPER CONSTRUCTION 315
__ j
explanation was given that since the amounts did not relate to the project A
in question, the entries were obliterated. (321-H; 322-AI

- 1.2. The objections to the Report of the Commission, so far as the
cost as raised are based on hypothetical figures. On perusal of the
Commission's Report it is found that it not only made an effort to co-
ordinate the various figures submitted by the company, but also engaged B
the services of qualified valuers who, on the basis of available data, worked
out the figures. [321-E)

1.3. The more detailed working out, as done by the Commission, has·
to be preferred over hypothetical figures given in the objection on the basis C
of incomplete and/or manipulated data. Therefore, the Report submitted
by Justice Bahri Commission is accepted. [322-B)

2. Having entered into arrangement with 'S', TPL has no further
role to play. Therefore both TPL and 'C' go out of picture. The prayer of
'S' that if construction is permitted, 'S' will refund the amount with D
interest is accepted subject to conditions that (1) An undertaking shall be
filed clearly stating the undertaking of 'S' to pay back all the 590 allottees
the amount they had deposited and accepted by the Commission along with
8% interest from the date of deposit till the date of payment; (2)
Construction on the area in question shall be permitted on the basis of
sanctioned plan. But no sale of the properties is permitted until payment E
is fully made by 'S'; (3) A bank guarantee covering the entire amount
payable alongwith interest shall be furnished and filed with the Registrar
General of this Court. After all the claims are settled, the Registrar
General on verification of the documents to be filed regarding full payment
of all the claimants shall discharge the Bank guarantee with due intimation F
to the bank(s) giving the guarantee. (324-F; 324-G-H; 325-A-B}

3. The Chief Justice of Delhi High Court is requested to nominate a
suitable judicial officer not below the rank of Additional District and
Sessions Judge, to scrutinize the claims of all the claimants other than those
who are to be paid by 'S' and to direct disbursement of the amounts out G
of the surplus available from the sale of the properfy at 3 Aurangzeb Road.
The officer to be appointed shall also examine the enforceability of the
judgments/decrees/orders in question, and pass appropriate orders
regarding payment, if any, to be made. The properties identified by the
Commission to have been acquired of, application of funds received from H
I ;

316 SUPREME COURT REPORTS (2005] 3 S.C.R.

A the depositors may be attached and such other assets and properties which
in his prima-facie opinion appear to have been acquired out of such amount
may also be attached by the officer. Such assets and properties may be
put up to sale by him. If any objection is raised within two months of the
date of attachment, the officer shall consider the same and with his views
B and findings, place the matter before this Court for further orders.
[325-C-E]

CIVIL APPELLATE JURISDICTION : Special Leave Petition (C) No.
21000 of 1993.

C From the Judgment and Order dated 9.12.93 of the Delhi High Court
in Suit No. 770 of I 993.

WITH

IA Nos. 67, 95, 98, 99, 100, 104, 106, 107, 108, 110 and 111 in SLP
D (C) No. 21000/1993. SLP (C) No ......CC Nos. 10419-10420/2003 and SLP
(C) No ...... cc Nos. 203-204 of 2004.

L. Nageswara Rao, Joseph Vellapally, M.N. Krishnamani, V.A. Mohta,
Y.P. Narula, Sunil Gupta, Sandeep Sethi, Ms. Kamini Jaiswal, Saquib, Dayan
Krishnan, Gopal Jain, Rajeev Kumar, S.P. Sharma, K.P. Singh, Ashwani
E Bharadwaj, Ashishek Atrey, Shishir Singh, H.S. Parihar, S.K. Kulkarni, M.
Gireesh Kumar, P.R. Ramasesh, Ms. Naresh Bakshi, Anil K. Chopra, Sunil
Dogra, .Ms. Ruchi, A. Mahajan, Arvind Kumar Sharma, Chandra Shekhar,
Ms. Rashmo Rai, S.K. Verma, Devinder Kumar1 Ms. Binu Tamta, V.K. Verma,
P. Parmeswaran, B.K. Prasad, B. Krishna Prasad, Ashok Mathur, Ravindra
Kumar, Ashok K. Srivastava, Prakash Singh, Tejwant Singh-in-person, Y.P.
F Mahajan, S.N. Terdol, D.S. Mabra, Ms. Sunita Sharma, B.V. Balaram Das,
Ms. Hemantika Wahi, Ms. Sadhna Sandhu, H.K. Puri, Ujjwal Banerjee, S.K.
Puri, Shiv Gupta, Ms. Priya Puri, V.M. Chauhan, Sudhir Kulshreshtha, Major
Genl. Joginder Singh-in-person, R.L. Dua, Sanjay Parikh, A.N. Singh, Ms.
Munjula Gupta, Vikas Bansal, Prarnod Dayal, S.K. Gupta, Naresh Kumar,
G Pramod Kumar Yadav, Rameshwar Prasad Goyal, Ms. Reena Singh, Ms.
Bhakti Pasrija, Ms. Prema Kumari, T. Mahipal, Shri Narain, Sandeep Narain,
Ms. Anjali Jha, Ms. Indu Malhotra, Raj iv Mehta, Sanjeev Bhandari,. B.
Agarwal, Rajeev Sharma, Anuvrat Sharma, Kamlendra Mishra, Rajeev Kumar
Dubey, Ms. Rashmi Singh, Rajendra Singhvi, Pawan, Ms. Kavita Wadia,
Manoj Goel, Shuvodeep Roy, Wajih Shafiq, Rahul Agarwal, Ms. Abha R.,
H Sharma, Ms. Kum Kum Sen and Rajeev Kumar, with them for the Appearing
DELHI DEVELOPMENT\AUTHORITYv. SKIPPER CONSTRUCTION (PASA YAT, J.] 317

parties. A
The Judgment of the Court was delivered by

ARIJIT PASA Y AT, J. There are some cases which at times strengthen
the idea that existing laws may be inadequate to grant relief to persons
whom, the court feels genuinely to be entitled to relief. Courts, more B
particularly, this Court will not abjure its duty to prevent violent miscarriage
of justice by passing such orders as are necessary to uphold the rule of law
and lift the veil of purported legality over such perfidious acts. In such cases
the Court should not allow itself to be deflected by red herrings drawn across
the track. It has to pass such orders as the circumstances warrant, of course
within the four corners of law to secure the interest of justice and to appease C
its judicial conscience. The facts of the present case have some such unique
features. In Miller v. Minister of Pensions, [1947] 2 All E.R. 373, it was
observed that the law would fail to protect community if it admitted fanciful
possibilities to deflect the course of justice. Technicalities should not stand
in the way of Courts doing substantive justice. Ultimately, it has to be D
remembered that justice has no favourite other than truth. Fraud vitiates all
transactions known to the law, however, high degree of solemnity may be
attached to the transactions. In the present case, this Court took note of the
massive fraud perpetuated by severa1 persons including corporate bodies.
1
The kingpin in the whole episode is Tejwant Singh purportedly with the aid E
and assistance of his wife Surinder Kaur and sons Prabhjot Singh Sabharwal
and Prabhjit Singh. This Court by exercise of the jurisdiction available urider
Articles 129, 136 and 142 of the Constitution of India, 1950 (in short the
'Constitution') passed various orders relating to the properties acquired by
Tejwant Singh and his family members and with regard to Skipper Construction
Pvt. Ltd. (in short 'Skipper Construction'). F
By order dated 22.11.2004 following issues were demarcated for
consideration:

I. Property situated at 22, Barakhamba Road and the Report of the
Justice Bahari Committee on diversion of funds. G
2. Prope.rty relating to Techonology Parks Limited at Vaishali,
Ghaziabad.

3. Property relating to Technology Parks Limited at Greater Noida.

4. Report of the Central Vigilance Committee pursuant to the order H
318 SUPREME COURT REPORTS [2005] 3 S.C.R.

A passed by this Hon 'ble Court dated 13 .11.2002.
We are presently concerned with the report of Justice Bahri Committee.
The first one is relating to property situated at 22, Barakhamba Road and the
alleged diversion of funds, and the other relating to the report relating to
Technology Parks Limited. (in short 'TPL') at Vaishali, Ghaziabad and Greater
B Noida. Justice Bahri Commission was appointed pursuant to the order passed
by this Court on 4th May, 2000. The Commission was ·directed to look into
diversion of funds of Skipper Tower (Pvt.) Limited (in short the 'Skipper
Tower'). The project known as 22, Barakhamba Road was initially launched
by Skipper Sales Pvt. Ltd. (in shoi:t 'Skipper Sale') under collaboration
agreement with the owners of the property. The Commission has come to
c hold that foundation of the project was laid some times in 1983 and the super
structure for three basements and the ground floor upto I 0th floor were
almost completed by 1987 and the I Ith and 12th floors have been constructed
during the year 1990-199.1. Objection to the report dated 29. I 0.200 I of Justice
Bahri has been filed by Tejwant Singh.
D We shall deal in detail with the findings of the Commission and the
objections filed. Pursuant to the directions given by the Commission,
informations were submiUed by Tejwant Singh and others which the
Commission felt to be distorted. They were in the shape of copies of the
ledgers and a report of the Chartered Accountant. Commission, however,
E obtained copies of the Balance Sheets and Director's reports of various
companies of the Skipper Group from the Registrar of Companies. During
hearing, Tejwant Singh, Prabhjeet Singh and their employees were heard by
the Commission. Representative of the Flat Owners' Association (in short the
'Association') was also heard. The Commission noted that Skipper Sales Pvt.
Ltd. and Skipper Tower Pvt. Ltd. were two companies which dealt with the
F building projects. The former was incorporated on 23.6.1977 and the equitY
share holding was owned by Tejwant Singh and his wife on one side and Sh.
Harpreet Singh and Harveer Singh-both sons of Inderjeet Singh, on the other.
With reference to the Director's report for the period from 23rd June, 1977
to 30th July, 197.8, the Commission found that Rs. 27,57,000 were paid to the
G real owners of22, Barakhamba Road property while entering into collaboration
agreements with them and the project was launched thereafter. Soon after the I
I
agreement Rs. 86,74,455 were collected from the prospective buyers for the
commercial space. The Commission noted from the subsequent Balance Sheets
and other financial statements and Director's Reports that another project ~t
5, Bhagwan Dass Road was taken up. There was also another project i.e. at .
H 89, Nehru Place. With reference to the Balance Sheets and the financial
\
!
DELHI DEVELOPMENT AUTHORITY v. SKIPPER CONSTRUCTION [PASAYAT, J.) 319

statements of Skipper Sales, it was noted that the said company was giving A
loans to its sister concerns and companies and as per the Balance Sheet
relatable to the financial year 1985-86, Rs. 17,04,08,637 had been collected
as booking amounts, and the amount pertains to both 22, Barakhamba Road
and 89, Nehru Place Project. The Balance Sheet referred to above, indicated
that Rs. 16,00,00,334 had been given to sister .companies and the cost of
.. construction in respect of both the projects was Rs. 6,32,18,900. The two B
groups wanted to separate and an agreement was entered into on 3rd
November, 1986 by which Tejwant Singh Group transferred shares in Skipper
Sales to the other group and on the basis of said agreement the project at 22,
Barakhamba Road was transferred to Skipper Tower. After this transfer had
been effected, the Balance Sheet of Skipper Sales relatable to financial year C
1986-87 showed that the booking amount relating to 89, Nehru Place was Rs.
11,83,19,511. Skipper Towers was incorporated on 18th November, 1976.
Two sons of Tejwant singh i.e. Prabhjot Singh and Prabhjeet Singh were
Directors of this Company for some period and Tejwant Singh was its
Managing Director. According to the records of Registrar of Companies,
Balance Sheet and other financial statements till 30th July, 1987 were available D
but no other statement as required under the Companies Act, 1956 (in short
the 'Company Act') has been filed thereafter. After looking into the documents
made available and the informations collected by it, the Commission was of
the view that Rs. 12,85,06,335 had been collected from various persons for
~~~ E
So far as the total expenditure incurred is concerned, the Commission
took note of the report given by Tilak Raj Talukia, Architect who was engaged
by the Flat Owners' Association. Skipper Sales by its communication dated
23rd July, 2001 admitted that the excavation work in the foundation was
started in 1983 and claimed that Rs. 10,64,51,055 was spent during the period F
from 1983 to 1992. The Commission took note of the various calculations
made by Tilak Raj Talukia. But it thought proper for the purpose of better
verification to engage Shri Ratnakar Nama, Architect and Government Valuer
to give another report. Shri Nama certified the cost of construction of the
basement and the construction upto 10th floor to be Rs. 3,18,52,128. He also G
indicated that the cost of construction of the 1 lth and 12th floors was Rs.
36,89,312. With reference to the Balance Sheet for the period ending relatable
to accounting period 1987-88, the Commission found that the total cost of the
work in fact was Rs. 3,74,21,011. This was taken to be the cost incurred on
the construction from the basement to the I 0th floor. So far as the 11th and
12th floors are concerned taking note of the report submitted by Tilak Raj H
320 SUPREME COURT REPORTS [2005] 3 S.C.R.

A Talukia and Ratnakar Nama after making adjustments for the expenditure in
respect of two lifts, overhead tanks etc. amounting to Rs. 85,26,578 . .Further
Rs. 19,66,062.40 for the marble cladding and the black glasses. The cost of
construction up to 12th floor was accordingly worked out as Rs. 5,97,02,963.
The details indicated are as follows:

B Cost of construction for basement & Ground
floor to l 0th floor Rs. 3,74,21,011

Cost of construction for 11th & 12th floor Rs. 36,89,312
Cost of extra items as mentioned Above Rs. 85,26,578

c Cost of Black Glasses
Amount paid to L&DO
Rs. 19,66,062
Rs. 10,00,000
Amount paid to the Owners Rs. 71,00,000

.Total Rs. 5,97,02,963

D Rupees 50,74,751 were added as 2% Brokerage, 1.5% Architect Fee
and 5% Administrative Charges to the above figures thus making total Rs.
6,47,77,714. It was, therefore, held that a balance of Rs. 6,37,28,621 was left.
The Commission was of the view that the above amount was obviously used
by giving loans to sister concerns. These companies utilized the said amount
for their respective projects.
E
The Chartered Accountants' report was treated to be unreliable on the
ground that a sum of Rs. 1,46,00,000 received from Jain Shudh Vanaspati
'.
Co. was not included. The Commission noted that it was confronted with
what was a.real mess. The record of the builder was in a state of anarchy and
F confusion, and was not reliable. It was observed that Skippers "Shamelessly
plundered the purchasers and harnessed everything to personal and private
advantage."

The objectors had objected to the inclusion of Rs. 7,27,504.27 collected
as additional charges. But no reason could be indicated to support the plea
G regarding non-inclu.sion.

In its objection to the Report of the Commission, the primary stand was
that the cost of construction has been taken at a lower figure and the receipts
were shown at higher figure. The records, according to the objector, show
that the construction was not completed in either 1986 or 1987 and the
H completion was in 1991. Further with reference to the CPWD rates it was
DELHI DEVELOPMENT AUTHORITY"· SKIPPER CONSTRUCTION [PASAYA T, J .] 321

submitted that the cost of construction is much higher. According to him the A
following cost will accrue if the construction is completed in a particular
period :-
1983-87 Rs. 7,84,86,534.66

1983-88 Rs. 8,06,14,312.23
B
1983-89 Rs. 8,31,91,700.75
1983-90 Rs. 8,63, 11,308.80

1983-91 Rs. 8,99,21,641. 70
1983-92 Rs. I 0,64,51,055.64
c
It was also pointed out that the Commission proceeded on erroneous
premises by ignoring the details submitted and the statements duly verified
by the Chartered Accountant. Reference was also made to MCD Departmental
instruments regarding Valuer Reports and Plinth Area Rates from 1950 to
June 1997 where reference was made to a decision of this Court in Dr. Balbir D
Singh v. MCD, [1985] 1 SCC 167. In that case certain guidelines were laid
down for determination of the rateable value of the properties subject to Rent
Control Legislation.

We have considered the Report of the Commission and the Objections.
It appears that objections, so far as the cost as raised are based on hypothetical .E
figures. On perusal of the Commission's Report we find that it not only made
an effort to co-ordinate the various figures submitted by the company, but
also engaged the services of qualified valuers who, on the basis of available
data, worked out the figures.

It would be relevant only to point out so far as the Chartered F
Accountants' certificates are concerned that they were un-audited statements
and appear to have been compiled from whatever details were furnished by
the C<lmpany. It is fairly accepted by the learned counsel for Tejwant Singh
that complete documents were not produced before the Commission. The
plea taken for non production was that they were seized by the Central
Bureau of Investigation/Police officials. G
There is substance in the commissions' findings that the accounts were
cooked up. Copies of certain ledger accounts were produced before the
Commission. It noticed that white fluid was used to obliterate the entries. A
rather vague and fanciful explanation was given that since the amounts did H
322 SUPREME COURT REPORTS [2005] 3 S.C.R.

A not relate to the project in question the entries were obliterated. Interestingly,
no explanation was offered as to which project the entries related and/or the
nature of the entries.

We are of the considered view that the m9re detailed working out, as
done by the Commission, has to be preferred over hypothetical figures given
B in the objection on the basis of incomplete and/or manipulated data. Therefore,
the Report submitted by Justice Bahri Commission is accepted.

In respect of Technology Parks Ltd. (in short 'TPL') there are two 'r
projects. One relates to village Tushiana Block Bisarakh Tehsil Dadri
Ghaziabad Greater Noida and other ·relates to plot nos. 23 and 26 Vaishali
C Parl<.s Apartment Vaishali Ghaziabad. The Commission in its reports dated
5.9.2001 and 3.12.2001 has submitted its report in respect of two projects
and transactions of TPL. As noted above, at present, consideration is to the
report so far as it relates to plot no. 23 Vaishali Parks ApartmentVaishali
Ghaziabad. Referring to the communication from Ghaziabad Development
D Authority (in short 'GDA') it has noted that plot no. 23 Vaishali Parks
Apartment Vaishali Ghaziabad was allotted to Mis Kanchan Properties, Kanpur
for a sum of Rs. 1.20 crores; 50% of the price had been deposited by the
allottee and the possession was handed over to the allottee and the plan for
constructing a multi storeyed building was also sanctioned. Balance 50% of
the price was yet to be paid and the same had not been paid upto 31st
E December, 1995. The amount payable inclusive of interest etc. is Rs.
1,04,74,452. Though time was extended, the deposit had not been made and
the allotment was cancelled and the order of cancellation was communicated
to the allottee on 4.4.1996. Proceedings were initiated under the applicable
Public Premises Eviction Act for obtaining possession. The area allotted was
F 4840 sq. yds. in tenns of Memorandum of Understanding (in short 'MOU')
between M/s Kanchan Properties and M/s Aldeco Housing and Industries on
-
1

one side and TPL on the other side. The rights of the said plot were transferred
to TPL for a consideration of Rs. 87.75 lakhs. In the agreement it was noted
that the original allottee had paid Rs. 70 lakhs towards principal amount and
Rs. 2.25 lakhs towards interest to GOA and balance amount with other
G demands of the authority were to be paid by TPL. The Commission noted
that 15 floors+ basement and ground floor were sanctioned for this plot. On
verification it was found that bare structure upto 9 floors including basement
were constructed. Upto signing of MOU, no booking had been done for sale
of flats in the project. The MOU was executed between TPL, Aman Associates,
H Madhu Kamboj on one side and M/s Shikha Deve)opers Ltd. (in shmt 'Shikha')
DELHI DEVELOPMENT AUTHORITY v. SKIPPER CONSTRUCTION [PASA YAT,J.] 32J
on the other side on 18th January, 1999. In terms of this MOU plot Nos. 23 A
and 26 Vaishali Parks Apartment Vaishali Ghaziabad had been transferred to
Shikha for a consideration of Rs. 50 lacs. In lieu of consideration, TPL had
purchased a flat measuring 2500 sq. ft. at I El2 Jhandewalan Extn., New
Delhi in the name of Miss Madhu Kamboj. The said Jhandewalan flat belongs
to Mis Aman Associates and that is why a tripartite agreement had been B

-· entered into. It was noted by the Commission that the sanctioned area of the
project is 109000+13250 sq. ft. and the covered area is 177250 sq. ft. It was
claimed that Rs. 2,30,52,833 was spent for raising the structure. So far as plot
no.26 Vaishali Group Housing Scheme of 4840 sq. yds. is concerned, the

--
same was allotted to Mis Charanjit Kochar, a partnership firm (in short
"Kochar") on leasehold basis by GDA. The Commission has noted that the C
address of Mis Charanjit Kochar is N-268 Greater Kailash-11, New Delhi and
the price was Rs. 1.20 crores and 50% of the price had been deposited and
possession was delivered. Building plans were also sanctioned. On failure of
the allottee to pay the balance price along with interest, the allotment had
been cancelled. Basement, ground floor and 8 more floors were sanctioned D
and the structure constructed was upto 8 floors. It was claimed that the
sanctioned covered area was 1,70,357 sq. ft. But in reality it was 1.06,000
Sq. ft. + 13250 Sq. ft. for the basement. The total cost of construction was
claimed to be Rs. 2, 17 ,00,000. Mis Charanjit Kochar had made the bookings
and collected Rs. 1,43,29,344 from the purchasers of the plots. The rights in
/ the project were transferred to TPL for a consideration of Rs. 30,00,000. E
According to the terms of MOU, the persons who had made the bookings
were still to pay Rs. 18,43,371.50. This plot was also transferred to Shikha
vide MOU dated 18th January, 1999.

Th_e Commission issued public notices inviting claims from the members. F
of public who had booked spaces in both the projects .of plot 23 and 26
Vaishali Parks Apartment. Individual notices were also sent to the persons
whose addresses were available.

In response, 619 claimants claimed to have made bookings. The amount ·
of total claims which has been accepted comes to Rs. 5,62, 76,875 while the G
amount of rejected claims comes to Rs. 18,58,473. The total area booked by
the claimants whose claims have been accepted comes to 353615 sq. ft. Out
of the total claims 360 claimants sought for refund of their deposited amounts
while 230 claimants continued to stake their claim for allotment of plots
booked. 11 claims were rejected. It was noted that 18 claims were registered
twice. The claimants who claimed allotment have booked total area of 118947 H
324 SUPREME COURT REPORTS [2005) 3 S.C.R.

A sq. ft.
During the course of hearing, Mr. Sanjay Parikh, learned counsel
appearing for the claimants submitted that those persons who had claimed
allotment were not insisting on it and, in fact, would also like to get refund
of the deposited amount with reasonable interest.
B
Learned counsel appearing for TPL submitted that after it had transferred
the interest to Shikha, it _had no subsisting interest.

One question which arises for consideration is that the construction of
128 flats had been sanctioned. If the allotments are to be made to all those
c who claim allotment there will be some controversy .as to who of the 230
claimants who are interested in allotment will get from 128 sanctioned flats.
In that context, Mr. Parekh had submitted that there was no rigidity on the
allotment aspect and as noted above, depositors will be happy to have the
amount refunded with reasonable interest. It appears that the amount claimed
D by GOA was deposited by Shikha and it was treated to be a fresh sanction.
It is to be noted that Kochar never appeared before this Court during earlier
proceedings. There was no negotiation with Kochar by the GOA and on the
contrary negotiation was with Shikha. Claim of Kochar that the deposit was
made by Shikha on its behalf does not warrant acceptance. Though it was
submitted by TPL that area as available will be sufficient to take care of the
E claimants, there can be no definite direction to all claimants because original
sanction related to 128 flats. After having entered into arrangement with
Shikha TPL has no further role to play. Therefore, both TPL and Kochar go
out of picture.

F Learned counsel appearing for Shikha submitted that if three months'
time is granted, it shall be able to pay all the 590 claimants (360 depositors
who have claimed refund and 230 who were interested in getting plots but
have alternatively prayed for refund). It is submitted that if construction is
. permitted, Shikha will refund the amount with interest. We accept the prayer
subject to following conditions:
G
(I) An undertaking shall be filed before this Court within two weeks
from today clearly stating the undertaking of Shikha to pay back
all the 590 allottees the amount they had deposited and accepted
by the Commission along with 8% interest from the date of
deposit till the date of payment.
H
DELHIDEVELOPMENT AUTHORITYv. SKIPPER CONSTRUCTION [PASA YAT, J.] 325

(2) Construction on the area in question shall be pennitted on the A
basis of sanctioned plan. But no sale of the properties is permitted
until payment is fully made by the Shikha.
(3) A bank guarantee covering the entire amount payable alongwith
interest shall be furnished and filed with the Registrar General of
this Court. After all the claims are settled, the Registrar General B
on verification of the documents to be filed regarding full payment
of all the claimants shall discharge the Bank guarantee with due
intimation to the bank(s) giving the guarantee.

We feel it would be appropriate to appoint a senior judicial officer to
scrutinize the claims of all the claimants other than those who are to be paid C
by Shikha and to direct disbursement of the amounts out of the surplus
available from the sale of 3 Aurangzeb Road property. We are infonned that
several legally enforceable judgments/decrees/orders have been passed to
which effect has to be given. The officer to be appointed shall also examine
the enforceability of the judgments/decrees/orders in question, and pass
appropriate orders regarding payment, if any, to be made. The properties D
identified by the Commission to have been acquired of, application of funds
received from the depositors may be attached and such other assets and
properties which in his prim a facie opinion appear to have been acquired out
of such amount may also be attached by the officer. Such assets and properties
may be put up to sale by him. If any objection is raised within two months E
of the date of attachment, the officer shall consider the same and with his
views and findings place the matter before this Court for further orders.

We request the Hon'ble Chief Justice of the Delhi High Court to
nominate a suitable judicial officer for the purpose. The officer should not be
below the rank of Additional District and Sessions Judge. F
Considering the pains taken by Mr. Daya Krishnan, learned amicus to
assist the Court in dealing with the complex matters, it would be unfair not
to direct payment of honorarium to him. Presently, let a sum of Rs. 50,000
be paid to him by the Registry out of the surplus available from the sale of
3, Aurangzeb Road property. G
Call the matter after four months for further orders and directions.

K.K.T. Adjourned with certain direction.