Delhi High Court
Housing Development Finance ... vs Rajeev Jha on 3 January, 2012
Author: Reva Khetrapal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 35/2011
HOUSING DEVELOPMENT FINANCE
CORPORATION LTD ..... Plaintiff
Through: Mr. Adhip Iyer, Advocate.
versus
RAJEEV JHA ..... Defendant
Through: Mr. Devinder Chaudhry,
Advocate
% Date of Decision : January 03 , 2012
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
: REVA KHETRAPAL, J. (ORAL)
1. The instant suit has been filed under Order XXXVII of the
Code of Civil Procedure 1908, for the recovery of ` 48,77,162/-
(Rupees Forty Eight Lakhs Seventy Seven Thousand One Hundred
Sixty Two only) along with pendente lite and future interest.
2. The brief facts leading to the filing of the suit are as follows:-
3. The plaintiff herein is a Bank, namely, Housing Development
Finance Corporation Limited (in short HDFC Ltd.) engaged in the
business of granting loans, especially housing loans.
4. The defendant is a borrower of the housing loan from the plaintiff
to the tune of ` 42,26,000/- (Rupees Forty Two Lakhs Twenty Six
Thousand only) in respect of the property located at House No.122,
Block - B 250, Greater Noida Industrial Built Up House (BHS 08),
Sector-Omicron-IA, Greater Noida-201301, which was allotted to the
defendant by Greater Noida Industrial Development Authority on
29.11.2007.
5. A Loan Agreement bearing no. 584484778 was entered into by
the plaintiff and the defendant on 13.02.2008.
6. By virtue of the said agreement, the defendant agreed to repay the
loan in 240 Equated Monthly Installment (EMI) every month, fixed at
` 41,485/- each. It was further agreed that the defendant would pay
additional interest in case of delay/default in making the repayment of
the loan as per the rules and all other charges as applicable from time
to time [Article 2.7(b) of the Agreement].
7. The disbursement of the loan of ` 42,26,000/- was made by the
plaintiff by issuing two cheques, one on 14.02.2008 vide Cheque
No.918809 for a sum of ` 41,21,000/- in favour of Greater Noida
Industrial Development Authority and other on 19.02.2008 vide
cheque No.919572 in the sum of ` 1,05,000/- in favour of HDFC
Standard Life Insurance Co Ltd.
8. In order to secure the loan repayment, a Promissory Note dated
13.02.2008 was executed by the defendant for the sum of
` 42,26,000/- in favour of the plaintiff and the Allotment-cum-
Allocation letter dated 29.11.2007 issued by Greater Noida Industrial
Development Authority was deposited with the plaintiff. The
defendant had also executed a General Power of Attorney and an
Assignment and Attornment Agreement, both dated 11.01.2008, in
favour of the plaintiff, granting the plaintiff a perfected Security
Interest in all rights.
9. It is asserted in the plaint that the last payment made by the
defendant towards the repayment of loan was on 19.06.2009 and after
that date no amount has been paid despite various demand notices and
reminders sent to the defendant. On 23.09.2010, the plaintiff sent a
legal notice to the defendant for clearing the dues and the same was
duly served upon the defendant, however, the defendant did not made
any effort for clearing the outstanding loan amount.
10. It is asserted in the plaint that till date the defendant has not
discharged his aforesaid legally payable debt and the outstanding
amount that is due from the defendant as per the terms and conditions
of the said Loan Agreement till 30th November, 2010 is as follows:-
PRINCIPAL OUTSTANDING ` 40,67,951.00
EMI OUTSTANDING ` 7,05,245.00
ADDITIONAL INTEREST ` 1,00,196.00
INCIDENTAL CHARGES ` 3,770.00
TOTAL AMOUNT DUE ` 48,77,162.00
11. The plaintiffs pray for a money decree for the aforesaid amount
under the provisions of Order XXXVII of the Code of Civil
Procedure, 1908 against the defendant along with interest @ 18% per
annum from the date of filing of the suit till the date of realization.
12. It may be noted at this junction that the suit was filed on
24.12.2010 and pursuant to the issuance of summons, the defendant
entered his appearance on 28.02.2011 as provided under Order
XXXVII Rule 3(1) of the Code of Civil Procedure. On 03.09.2011
the summons for judgement in Form 4A in Appendix B were issued
and were served upon the defendant on 07.10.2011. However no
application seeking leave to defend as required under sub-Rule (5)
Rule 3 of Order XXXVII has been filed by the defendant till date.
13. By virtue of the provisions of sub-Rule 6 of Rule 3 of Order
XXXVII, if the defendant does not apply for leave to defend or if
such application has been made but is refused by the Court, then the
plaintiff shall be entitled to judgment forthwith.
14. The defendant in the instant suit having failed to file leave to
defend, the allegations in the plaint are deemed to be admitted and the
plaintiff is held entitled to a decree in the sum of ` 48,77,162/- (Forty
eight lakhs seventy seven thousand one hundred and sixty two only)
along with interest at the rate of 18% per annum as per the Article
2.7(b) of the Agreement from the date of the institution of the suit till
the date of realization of the decretal amount.
15. The suit stands decreed in the above terms. Registry shall draw
up a decree sheet accordingly.
REVA KHETRAPAL
(JUDGE)
January 03, 2012
ak
