H.D.F.C Ltd vs Nirmal Singh
2012 Latest Caselaw 7051 Del

       *      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: 10.12.2012
+      CS(OS) 3094/2011
       H.D.F.C LTD                                            ..... Plaintiff
                            Through:   Mr. Amit Trikha, Advocate

                   versus

       NIRMAL SINGH                                               ..... Defendant
                            Through:   None
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                            JUDGMENT

V.K.JAIN, J. (ORAL)

This is a suit filed under the provisions of Order 37 of the Code of Civil

Procedure for recovery of Rs.35,44,239/-. The case of the plaintiff, which is a

leading Housing Finance Company, is that defendant approached it for grant of a

housing loan to the tune of Rs 37 lakh for purchase of a flat bearing No. 1053, 5th

Floor, Tower-I, Shivkala Charms--Golf Course SAS Ltd. Plot No. 07, Sector Pi II,

Greater Noida, District Gautam Budh Nagar, U.P. The plaintiff processed the

application received from the defendant for grant of loan and sanctioned a loan of

Rs 36,40,000/- to him. The loan was to carry interest at rate of 10% at

variable/admissible rate of interest for a period of 20 years. Pursuant to sanction of

the loan, the defendant executed a General Power of Attorney in favour of one

Lokesh Singh, who, acting under the said Power of Attorney, executed documents

such as promissory note, loan agreement, etc. in favour of the plaintiff-company.

Acting on those documents, the plaintiff disbursed part payment of Rs 34,13,000/-

to the defendant on 28.03.2011 vide cheque dated 18.03.2011. Under the

agreement, in the event of default in payment of EMI and/or pre EMIs and other

dues, payable to the plaintiff, the plaintiff was entitled to recall the loan extended

by it. The plaintiff was also entitled to recall the loan in case it was found that any

information supplied by the borrower was incorrect or misleading.

2. It is alleged that the loan account of the defendant became irregular with

effect from July, 2011. It is further alleged that on enquiry, it transpired that the

defendant had furnished false and fabricated documents to procure the loan. The

plaintiff accordingly sent a legal notice dated 20.09.2011 to the defendant recalling

the entire loan outstanding. However, the outstanding loan was not cleared despite

notice. A sum of Rs 33,87,877/- is stated to be due from the defendant as the pre-

outstanding amount, Rs 14,5,233/- are stated to be due as the amount of

outstanding EMIs and an amount of Rs 7,438/- is stated to be due as additional

interest. The plaintiff is also seeking to recover incidental charges amounting to Rs

3,691, thereby making a total sum of Rs 35,44,239/-.

3. The defendant was served by way of publication in the newspapers. No

appearance has been filed by the defendant, despite service by publication in 'The

Statesman' and 'Dainik Jagran' dated 17.08.2012. Consequently, the plaintiff has

become entitled to judgment forthwith.

4. The plaintiff has placed on record the home loan agreement dated

28.03.2011 as also the promissory note executed on the same date. A General

Power of Attorney purporting to be executed by the defendant in favour of one

Lokesh Kumar Singh, authorizing him, inter alia, to apply for loan with the

plaintiff-company, accept the loan offer, receive the disbursed amount, mortgage

any property of the defendant and execute loan agreement, promissory note, etc. in

favour of the plaintiff has also been filed. The plaintiff has placed on record the

statement of account in respect of loan granted to the defendant and a sum of Rs

35,44,329/- including incidental charges amounting to Rs 3691 is shown as due

from the defendant in loan account No. 601414743 as on 31.10.2011.

5. The plaintiff has today filed a supplementary affidavit by way of evidence

along with certain documents. A perusal of the supplementary affidavit of Mr. D.K.

Gupta, Assistant General Manager of the plaintiff company would show that the

plaintiff had obtained the photocopy of the Identity Card issued to the defendant by

his employer NTPC Ltd., as a proof of his identity and also the mobile bill as a

proof of his name and address. The address given on the mobile bill is the same as

is given in the plaint. The plaintiff had also obtained a copy of the Pan Card of the

defendant as a proof of his identity. The plaintiff also obtained a photocopy of the

election card issued to Mr. Lokesh Singh, Attorney of the defendant who executed

the documents on his behalf.

A perusal of Clause 27 of the Loan Agreement executed by the defendant

through his attorney would show that in the event of delay in the payment of EMI,

the defendant was required to pay additional interest @ 18% per annum or at such

higher rate as per the rules of the plaintiff in this regard.

6. For the reasons stated herein above, the plaintiff is entitled to a decree for

recovery of Rs.35,40,548/-. The incidental charges amounting to Rs.3691/- cannot

be claimed in a suit under Order 37 of the Code of Civil Procedure. Accordingly, a

decree for recovery of Rs.35,40,548/- with proportionate costs and pendent lite and

future interest @ 6% per annum is hereby passed in favour of the plaintiff and

against the defendant. Decree sheet be drawn accordingly.

V.K. JAIN, J DECEMBER 10, 2012 bg/rd