Housing Development Finance ... vs Chanchal Arya And Another
2013 Latest Caselaw 5666 Del

*           THE HIGH COURT OF DELHI AT NEW DELHI

+                         CS (OS) 126/2013

                                                Date of Decision: 06.12.2013

HOUSING DEVELOPMENT FINANCE CORPORATION LTD.
                                ...... PLAINTIFF

                          Through:      Mr. Neeraj Kumar,        Mr.Sanchit
                                        Dhawan, Advocates.

                                     Versus

CHANCHAL ARYA AND ANOTHER                             ...... DEFENDANT

                          Through:      None.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)

1. The matter is placed before the court by the learned Joint Registrar

recording that no-one has been appearing for the defendants No. 1 and 2

despite their having been served of the summons in the prescribed form

under Order 37 CPC on 31.08.2013 and 18.03.2013 respectively. It is also

recorded that not only that no-one has been appearing on behalf of

defendants No. 1 and 2, but, even the appearance i.e. mandatorily required to

be filed as per the provisions contained in Order 37 Rule 2 (3) CPC, is not

filed. As per the provisions contained in Rule 2 Sub-Rule 3 of Order 37

CPC, the allegations contained in the plaint are to be deemed to be admitted

on the part of the defendants and the plaintiff entitled to a decree for a sum

as mentioned in the summons.

2. Briefly stated, the facts are that the plaintiff is a company engaged in

business of granting loans, specially loans in the category of housing. It is

the case of the plaintiff that the defendants No. 1 and 2 jointly approached it

in their capacity as borrower and builder for availing housing loan by

defendant No. 1 for the purchase of a flat to be constructed by defendant No.

2. The loan amounting to Rs. 30 lakhs was sanctioned by the plaintiff in

favour of the defendant No. 1 with the consent and acknowledgment of

defendant No. 2. In pursuance thereto, the plaintiff disbursed Rs. 28,22,500/-

on behalf of the defendant No. 1 to defendant No. 2 at the request of the

former. The defendant No. 1 executed documents such as promissory note

of Rs. 30 lakhs in favour of the plaintiff and as per the loan agreement, the

equated monthly installments (EMI) were to be paid by defendant No. 1 to

the plaintiff along with the interest as agreed. Further, as per the Tripartite

Agreement executed between the plaintiff and the defendants, the defendant

No. 1 agreed to secure with the plaintiff, the flat by way of mortgage, and

which was agreed to and confirmed by the defendant No. 2. Defendant No.

2 also undertook not to create any third party rights or security in the said

flat, without the prior consent of the plaintiff. It was specifically agreed to

that in the event of cancellation of allotment of the flat by the defendant No.

2, the refund of the amounts paid by defendant No. 1 were to be paid by the

defendant No. 2 directly to the plaintiff. It is averred that therefore, as per

the terms of the Tripartite Agreement, the defendant No. 2 is under an

obligation to return the payments/deposits by defendant No. 1 to the

plaintiff. It is averred that the defendant No. 1 has failed and defaulted in

remitting the outstanding EMIs of Rs. 3,88,828/- as also the principal

outstanding amount of about Rs. 27,33,594/-, the additional interest

amounting to Rs. 41,762/- and the incidental charges of Rs. 2,355/-, thereby

totaling to Rs. 31,66,539/-.

3. The plaintiff has prayed for a decree of this amount against the

defendant No.1 along with the pendente lite and future interest @ 18% per

annum from the date of filing of the suit till its realization, and in the

alternative, in terms of the Tripartite Agreement, a decree against defendant

No. 2 of this amount along with the pendente lite and future interest @18 %

per annum from the date of filing of the suit till its realization.

4. As is noted above, the defendants having failed to enter appearance,

the allegations as briefly narrated above, are deemed to be admitted on the

part of the defendants. It stands established that defendant No. 1 has

defaulted in making payment of outstanding EMIs as per the Loan

Agreement. Thus, the plaintiff is entitled to a decree of Rs. 31,66,539/-

(Rupees Thirty One Lakhs Sixty Six Thousand Five Hundred Thirty Nine

only) as claimed in the plaint. However, since the relief that is claimed

against the defendant No. 2 is in the alternative, and there being nothing on

record to suggest that the allotment of the flat in favour of the defendant No.

1 stood cancelled by defendant No. 2, it could not be said that the plaintiff

was entitled to seek any return of the payments/deposits of defendant No. 1

from the defendant No. 2. The obligation of the defendant No. 2 in this

regard arises only in the event of the allotment in favour of defendant No. 1

having cancelled by defendant No. 2. That being not the case of the

plaintiff on record, the plaintiff would be entitled to a decree of aforesaid

amount against the defendant No. 1 only. Consequently, a decree of Rs.

31,66,539/- (Rupees Thirty One Lakhs Sixty Six Thousand Five Hundred

Thirty Nine only) along with the pendent lite and future interest @ 18% per

annum from the date of filing of suit till its realization is passed in favour of

the plaintiff and against the defendant No. 1. Suit stands disposed of.

Decree be drawn accordingly.

M.L. MEHTA, J.

DECEMBER 06, 2013 akb