Saturday, 4 November 2017

Open Letter to CJ about Justice Badar's zigzag orders in Bhagtani ABA

To
Justice Manjula Chellur,
Chief Justice of Bombay High Court,
Through The Registrar
Bombay High Court,
Fort, Mumbai

5th November, 2017

Sub: Justice Badar's Zigzag Orders in ABA no. 1533 of 2017

Dear Madam,

Hundreds of victims of Bhagtani builders are on an anxiety-inducing roller-coaster ride, thanks to the strange twists and turns in proceedings of ABA no. 1533 in Bombay High Court. Seven orders have so far been passed -- four by Justice Revati Mohite Dere and three by Justice Badar. The latter's orders are increasingly lenient and devoid of judicial logic. Repeatedly, orders are passed based on unverified claims made by the applicants (Dipesh, Mukesh and Lakshman Bhagtani). A blind eye is turned to total non-compliance of anticipatory bail conditions mentioned in applicant Dipesh Bhagtani's affidavit. The most recent order is a cringe-worthy clean chit to the Bhagtanis for expressing the intention to approach National Corporate Law Tribunal (NCLT). From where does the hon'ble bench get the jurisdiction to pass such an order in a criminal matter, and that too an anticipatory bail application?

SEVEN ORDERS PASSED TILL DATE:

23rd August, 2017:
P.C.: 1. By this application, the applicant seeks interim protection till his application is finally decided by the trial Court.
2. Learned Counsel for the applicant states that the applicant's application has been kept on 28th August, 2017 by the trial Court and that there is no interim protection granted to him. He submits that there is Ganpati in his house and hence the applicant be protected only till 28th August, 2017.
3. Learned APP states on instructions,  that  the applicant will not be arrested only upto 28th August, 2017. 
4. In view of the aforesaid, nothing survives for consideration in the present application. The same is disposed of accordingly.
5. It is made clear that the applicant is protected only till 28th August, 2017 and the learned Judge to decide the application, pending before him, on its own merits, uninfluenced by the interim protection granted to the applicant only  upto 28th  August, 2017.
6. All concerned to act on the authenticated copy of this order.
(REVATI MOHITE DERE, J.)

1st Sept 2017:
ORDER: (i) In the event of arrest, the Applicants be enlarged on bail, on executing PR Bond in the sum of Rs.25,000/- each with one or two sureties in the like amount; (ii) The Applicant Nos.1 & 3 shall report to the investigating officer of the concerned police station on8th & 9th September, 2017 between 10.00 a.m. to 12.00 noon.  (REVATI MOHITE DERE, J.)

15th Sept 2017:
P.C.: 1. Stand over to 22nd September, 2017. To be listed on the Supplementary Board. 2. Interim order granted earlier to continue till the next date. (REVATI MOHITE DERE, J.)
[Note: For reasons best known to the hon'ble judge, this order did not report the proceedings, which were as follows: On the matter being called out, the court was addressed by not just the applicants and the additional public prosecutor, but also advocates representing a number of intervenors who were praying for protection of their interests. The judge directed the advocate of the applicants to refund the amounts. She asked within what time frame the refund would happen, to which the builder's advocate sought time for ascertaining the number of investors and the total amount of dues. The judge warned that the said amounts should not be refunded by PDCs, as cheques had been dishonoured multiple times in the past. She asked the advocates of intervenors to submit a list of intervenors and the amounts owed to them on Monday, 18th Sept, 2017, to the advocate of the applicants.]

29th Sept 2017:
P.C.: 1. Learned Senior Counsel for the Applicants in Anticipatory Bail Application No.1533 of 2017, states on instructions, that the applicants will deposit Rs.22 crores, as stated in the FIR in this Court, in 6 equal installments, within six months from today.  He states on instructions, that the first installment will be deposited on or before 12th  October, 2017 and the balance 5 installments, thereafter, within one month each. He submits that if there is a single default, the protection can be vacated. He seeks time to file an affidavit-cum-undertaking of the applicants, stating the same.
2. Learned Counsel for the Interveners states that in addition to the list given by the Investigating Officer, there are other 18 investors who have not been included in the  list.  He submits that there are additional 18 or more   investors and  that he is in the process of filing an intervention application. He states that the amount is about Rs.3-4 crores, which will be in addition to the amount of Rs.22 crores mentioned in the FIR.
3. Mr. Mundargi, states that the applicants are ready to deposit the additional amount of  the additional investors who are not  included in the list tendered by him today, after the list and the amounts are verified.
4. Stand over to 3rd October, 2017 at 3.00 p.m, for tendering the affidavit-cum-undertaking of the applicants. 
5. Interim protection granted earlier to continue till the next date.
(REVATI MOHITE DERE, J.)

PC:­ 1. It is seen that investors, who booked apartment in scheme named as ''Bhagtani Riyo' by JVPD Properties Private Limited could not get possession of their apartment on completion of the project. Therefore, informant Sonal Mehta has lodged the report which has resulted in registration of the crime in question.
2. It appears that the land on which the project was to come up is a ''Gurcharan' land and in view of the law laid down by the Hon'ble Apex Court, the scheme might not have materialised.
3. This Court by an order dated 29th September, 2017 on recording submissions of the learned Senior Counsel appearing for the applicant showing willingness to deposit the entire amount deposited with a builder by investors adjourned the matter to 3rd October 2017 i.e. today for tendering affidavit of undertaking of applicants.
4. In pursuant to this order, applicants have placed on record affidavit of applicant Diipesh Bhagtani. The same is taken on record.
5. In paragraph No.4 of his affidavit, applicant Diipesh has shown willingness to deposit 22 Crores in 6 equal installments. However, the question would be as to how many investors have booked the apartment in the scheme ''Bhagtani Riyo'' and how much amount they have deposited. In addition thereto, it is seen that the agreement entered into between the developer/builder and individual investors contains a Clause No.11 which take care of eventuality of the project remaining in complete. The agreement provides for grant of interest @15% from the date of payment made by persons, who booked apartment.
7. Statement made in affidavit of applicant Diipesh regarding depositing of Rs.22 Crores is accepted as provisional payment which shall take care of interest of investors. In addition thereto, the applicants are directed to submit list of all persons who booked apartment in the incomplete project ''Bhagtani Riyo''. The list to show the amount deposited by each investors as well as the amount payable to each investor considering the rate of interest at 15% or agreed rate of interest per annum as on the date of submission of list. The list alongwith affidavit of the applicant be tendered on 12th October 2017.
7. The learned APP states that the investor has already issued letter to the bank for defreezing the concern account. The statement so made is accepted.
8. Stand over to 12th October 2017.
9. Interim order to continue till 12th November 2017.
(A.M. BADAR, J )

PC: 1. Heard the learned advocate appearing for the applicants as well as the learned Advocate appearing for the interveners.
2. The learned Advocate appearing for the applicants reported that total 1088 individuals have booked apartments in the schemes floated by applicants. As on date he has refunded entire amount due to 658 persons. 255 persons are partly paid whereas, nothing is paid to remaining 175 persons.
3. The learned advocate appearing for the applicants on instructions is stating that the applicants are managing the funds and are in a process of refunding the amount to all persons, who are yet to be paid or partly paid. He shown willingness to report further developments to this Court immediately on re­opening of the Court.

4. In this view of the matter, stand over to 1st November 2017.
5. If applicants desires to go to some foreign country in the meanwhile, they should seek permission of this Court.
6. Interim order to continue till then.
(A.M. BADAR, J )

PC: 1. The learned Senior Advocate appearing for applicants submitted that applicants are moving the National Company Law Tribunal under Section 230 of the Companies Act with a proposal that applicants shall return the entire amount with interest to their customers, who are not willing to continue with the Housing Scheme found due according to the relevant provisions of law. In the alternative, the applicants are also praying for National Company Law Tribunal that they shall continue with the project and deliver the possession of the apartments to their customers, who are willing to continue in the Scheme. The third option which is being given to the customers is that they will be shifted to other Projects in the vicinity undertaken by other Builders, if customers are agreeing for this proposal. According to the learned Senior Counsel, within two weeks from today such applications shall be moved to the National Company Law Tribunal. Shri.Kulkarni, the learned Advocate appearing for applicants states that some more payments are disbursed to the customers, who are willing to take back money by withdrawing from the Scheme.
2. The learned Advocate for some of the intervenors have submitted that the applicants are not accepting the RTGS details for refunding the amount deposited by intervenors with the applicants. Shri.Kulkarni, the learned Advocate appearing for the applicants submits that he will suitably instructed all applicants to co­operate the intervenors by accepting bank details for making refunds as claimed.
3. A grievance has been raised by Shri.Kulkarni, the learned Advocate appearing for the applicants that despite oral undertaking given by the learned Additional Public Prosecutor on the last date, the Investigator had not yet defreezed the bank accounts of the applicants. Ms.Malhotra, the learned APP submits that the concerned Investigating Officer is not present and she shall instruct the concerned Investigating Officer accordingly.
4. In this view of the matter, stand over to 15th November 2017.
5. Interim Order to continue till the next date.
(A.M. BADAR, J )

LENIENT CONDUCT OF JUDICIARY:
  • Total memory loss about order passed a few days earlier. On 3rd October, Justice Badar wrote in his order: "Statement made in affidavit of applicant Diipesh regarding depositing of Rs. 22 Crores is accepted as provisional payment which shall take care of interest of investors. In addition thereto, the applicants are directed to submit list of all persons who booked apartment in the incomplete project ''Bhagtani Riyo''. The list to show the amount deposited by each investors as well as the amount payable to each investor considering the rate of interest at 15% or agreed rate of interest per annum as on the date of submission of list. The list alongwith affidavit of the applicant be tendered on 12th October 2017." Although this order was flouted by the applicants, Justice Badar adopted an indulgent stance that indicated that he didn't mind in the least. 
  • Unwillingness to impose travel restrictions. On 12th October, Justice Badar reluctantly conceded the need for imposing travel restrictions on the applicants. He passed a cleverly worded order: "4. In this view of the matter, stand over to 1st November 2017. 5. If applicants desires to go to some foreign country in the meanwhile, they should seek permission of this Court." At the hearing on 1st November, he directed some stinging remarks at the intervenors' advocates, and so they were cowed down afterwards. As a result, the feeble travel restrictions that he had earlier imposed, lapsed, and the Bhagtanis are currently free to travel abroad without restriction. Although all three applicants are conspicuously absent at every single hearing, Justice Badar never inquires about their whereabouts. Evidently, he discounts the possibility that the applicants (who frequent London and Dubai) may evade the long arm of the law by leaving the country.
  • Ready acceptance of applicants' claims without verification. In his order dated 12th October, Justice Badar noted: "The learned Advocate appearing for the applicants reported that total 1088 individuals have booked apartments in the schemes floated by applicants. As on date he has refunded entire amount due to 658 persons. 255 persons are partly paid whereas, nothing is paid to remaining 175 persons. The learned advocate appearing for the applicants on instructions is stating that the applicants are managing the funds and are in a process of refunding the amount to all persons, who are yet to be paid or partly paid. He shown willingness to report further developments to this Court immediately on re­opening of the Court." The applicants were not asked to submit a single document before this order was passed. Is this normal for a court of law?  
  • Orders that are extraneous to criminal proceedings. On 1st November, Justice Badar wrote in his order: "The learned Senior Advocate appearing for applicants submitted that applicants are moving the National Company Law Tribunal under Section 230 of the Companies Act with a proposal that applicants shall return the entire amount with interest to their customers, who are not willing to continue with the Housing Scheme found due according to the relevant provisions of law. In the alternative, the applicants are also praying for National Company Law Tribunal that they shall continue with the project and deliver the possession of the apartments to their customers, who are willing to continue in the Scheme. The third option which is being given to the customers is that they will be shifted to other Projects in the vicinity undertaken by other Builders, if customers are agreeing for this proposal. According to the learned Senior Counsel, within two weeks from today such applications shall be moved to the National Company Law Tribunal." Madam, is National Company Law Tribunal relevant for giving or denying anticipatory bail? Why is NCLT, unheard of in the previous six orders, mentioned in the seventh order? Also, why is the applicant allowed to shift the goalposts by coming up with fresh statistics, fresh  conditions and fresh promises at every hearing?
  • Applicants' bonafides are automatically assumed. In the order passed on 1st November, Justice Badar wrote, "... learned Advocate appearing for applicants states that some more payments are disbursed to the customers, who are willing to take back money by withdrawing from the Scheme." Why weren't they asked what amounts were disbursed, and to how many customers? Madam, allow us to inform you that paltry sums of Rs 50,000/- were flung like alms at beggars at roughly 100 of the applicants' 2000-plus victims, each of whom the applicants owe between Rs 8 to 80 lakhs! As for "withdrawing from the scheme", allow us to inform you that the applicants' only scheme was to take money from thousands of flat-buyers without giving them anything in return. Intervenors are ready and willing to provide proof of this, but will Justice Badar record such inconvenient truths in his orders? We doubt it. 
  • Covertly mediating on behalf of anticipatory bail applicants. Orders dated 12th October and 1st November lend themselves to interpretation as mediation on behalf of the applicants i.e. Bhagtani builders, couched in judicial language. Examples: "... the applicants are managing the funds and are in a process of refunding the amount to all persons, who are yet to be paid or partly paid..." "...applicants shall return the entire amount with interest to their customers, who are not willing to continue with the Housing Scheme... In the alternative, the applicants are also praying for National Company Law Tribunal that they shall continue with the project and deliver the possession of the apartments to their customers, who are willing to continue in the Scheme. The third option which is being given to the customers is that they will be shifted to other Projects in the vicinity undertaken by other Builders, if customers are agreeing for this proposal..." Madam, does Justice Badar, enclosed in his lofty courtroom, cared to find out about the squalid ground reality of Bhagtani builders? Does his lordship have a clue that all of these so-called options are neither fair nor feasible? Does he care to know that these options have already been considered and rejected by the complainants and intervenors? If he genuinely cares about the fate of complainants and intervenors, why doesn't he allow their counsels to speak?

Madam Chief Justice, it appears that this hon'ble bench is overreaching are beyond its jurisdiction, pre-judging the FIR and preempting police investigations. We seriously apprehend that such conduct will prejudice the law enforcement agencies and prevent them from doing their duty. This will not only deprive over 300 complainants and intervenors of justice, it will render a couple of thousand other victims of the Bhagtanis completely helpless, hopeless and without any recourse.

We, the public, hold the judiciary in high esteem. Kindly take necessary steps to safeguard our faith in the judiciary.

Yours sincerely,

Krishnaraj Rao
Journalist, Mumbai
9821588114
krish.kkphoto@gmail.com

Copy to:
  • Justice A M Badar
  • Justice Revati Mohite Dere
  • Advocates and Counsels of all intervenors, complainants and applicant
  • Public Prosecutor
  • Advocate General of Maharashtra
  • Ministry of Law & Judiciary, Maharashtra
  • Ministry of Law & Justice, Govt. Of India
  • Chief Justice of India

This open letter is endorsed by the following intervenors, complainants and victims:
S.No.   Name                   Mobile No.                   Signature

6 comments:

  1. Shame on the judiciary if it deprives the Bhagtani victims of a fair trial. We hope the Chief Justice takes cognizance of the issues highlighted and instructs corrective action

    ReplyDelete
  2. All incidents well quoted.
    I believe in Indian Judiciary. Please keep away from corruption.

    ReplyDelete
  3. Mr. Rao, this link will maybe a useful precedent (in case if any contempt notice is issued)
    https://www.facebook.com/photo.php?fbid=10152776156217289&set=a.326323112288.187643.678802288&type=3&hc_ref=ARQuFc2VPrjDnwbNk_gg_hKsOgnIT-LrT6iyn0TCV3v0iAnleMZmpEBqsK6rLVTxGag&pnref=story

    ReplyDelete
    Replies
    1. I would love it if they issued a contempt notice. I am waiting for them to do that. I have a bloody hell of a lot to say in my affidavit in reply. If they think this letter is contempt, they will find out what contempt is all about.

      Delete