Housing Development Finance ... vs Pradeep B. Bhatnagar & Anr.
2013 Latest Caselaw 5181 Del

*           THE HIGH COURT OF DELHI AT NEW DELHI

+                        CS (OS) 3331/2012

                                        Date of Decision: 12.11.2013

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

                         Through:    Mr. Neeraj Kumar, Advocate.

                               Versus

PRADEEP B. BHATNAGAR & ANR.                      ...... 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 09.05.2013 and 07.05.2013

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. 27

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. 26 lakhs 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. 27

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 that

the flat by way of mortgage, and which was agreed to and confirmed

by the defendants; and 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, as also the principal outstanding

amount of about Rs. 22,66,811/-, and the additional interest amounting

to Rs. 40,920/- and the incidental charges of Rs. 2305/-, thereby

totaling to Rs. 27,58,887/-.

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. 27,58,887/- (Rupees Twenty Seven Lakhs Fifty Eight Thousand

Eight Hundred Eight Seven 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. 27,58,887/- (Rupees Twenty Seven Lakhs Fifty Eight

Thousand Eight Hundred Eight Seven 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.

NOVEMBER 12, 2013 akb