Housing Development Finance ... vs Vishal Sharma And Another
2014 Latest Caselaw 3362 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Order delivered on: July 28, 2014

+             CS(OS) No. 2506/2012 & I.A.No. 10060/2013

       HOUSING DEVELOPMENT FINANCE CORPORATION LTD.
                                                .....Plaintiff
                   Through Mr.Neeraj Kumar, Advocate

                        versus

       VISHAL SHARMA AND ANOTHER                        .....Defendants
                   Through None



       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

1. This is a suit for recovery under Order XXXVII CPC filed by the plaintiff against the defendants.

2. The matter was placed before this Court by the learned Joint Registrar recording that till date neither appearance has been filed nor any 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 9th December, 2012 and 13th December, 2012 respectively. However, on 17th December, 2012 an application being I.A.No. 10060/2013 for appearance was filed by the defendant no.1 and hence an application being I.A.No. 10555/2013 under Order XXXVII Rule 3(4) CPC was filed by the plaintiff for issuance of summons for judgment to the defendant No.1. Defendant No.1 was duly served with summons for judgment by way of pasting

on 7th September, 2013 but the application seeking leave to defend has not been filed on behalf of defendant No.1. 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 is entitled to a decree for a sum as mentioned in the summons.

3. Brief facts of the case are that the plaintiff is a company engaged in the business of granting loans, especially loans in the category of housing loans.

4. It is the case of the plaintiff that the defendants No.1 and 2 jointly approached the plaintiff as a borrower and builder for availing house loan by defendant No.1 for the purchase of a Flat No. 4003, Ground Floor, Shivkala Charms, Plot No.7, Sector PI-II, Greater Noida, Uttar Pradesh - 201308 (hereinafter referred to as the "Flat") to be constructed by defendant No.2.

5. It is alleged that the defendant Nos.1 and 2 entered into a Tripartite Agreement with the plaintiff on 18th August, 2010. The plaintiff and defendant No.1 also executed a loan agreement namely a "Dual Rate Home Loan III- Fixed to Variable" (hereinafter referred to as the "Loan Agreement") on 23rd September, 2010. The loan amounting to Rs.28,00,000/- was stated to have been sanctioned by the plaintiff in favour of the defendant No.1 with the consent and acknowledgement of defendant No.2. The loan was sanctioned to the defendant No.1 for a period of 240 months with variable rate of interest.

6. In pursuance thereto, the plaintiff disbursed Rs.26,50,000/- on behalf of defendant No.1 to defendant No.2 at the request of the

former. The defendant No.1 also executed documents such as three promissory notes dated 23rd September, 2010 under the loan agreement scheme for the sanctioned sum of Rs.28,00,000/- and indemnity bond dated 24th September, 2010 in favour of the plaintiff.

7. As per the loan agreement, the equated monthly instalments (EMI) were to be paid by defendant No.1 to the plaintiff along with the interest as agreed. Further as per the Tripartite Agreement, the defendant No.1 agreed that irrespective of the stage of the construction of the project and irrespective of the date of handing over the possession of the flat, the defendant No.1 shall be liable to pay regular EMI to the plaintiff. The defendant No.1 agreed to secure with the plaintiff, the flat by way of mortgage which was agreed to and confirmed by the defendant No.2. The defendant No.2 also undertook not to create any third party rights or security interest of any sort without the prior consent of the plaintiff. It is contended that 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 the 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.

8. As per the plaintiff the last payment made by the defendant No.1 towards the repayment of loan and accounted for by the plaintiff was on 10th September, 2011 and thereafter no amount has been paid towards the repayment of the said loan by the defendant No.1.

9. The plaintiff claims to have sent a Loan Recall Notice dated 6th March, 2012 to the defendant No.1. However, neither was the notice

complied with nor replied to. The plaintiff by letter dated 26th April, 2012 sent on 27th April, 2012 claims to have demanded from the defendant No.2 the refund of the amount owed by defendant No.1 directly to the plaintiff, however the defendant No.2 has not complied with the said notice.

10. It is averred that defendant No.1 has failed and defaulted in remitting the outstanding EMIs of Rs.1,92,876/-, as also the principal outstanding amount of about Rs. 25,87,220/-, the additional interest amounting to Rs.12,473/- and incidental charges of Rs.1,450/- thereby totalling to Rs.27,94,019/-.

11. The plaintiff has prayed for a decree of Rs.27,94,019/- against the defendant No.1 along with the pendent lite and future interest @ 18% per annum from the date of filing of the suit till its realization.

12. 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.27,94,019/- (Rupees Twenty Seven Lac Ninety Four Thousand and Nineteen 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 not being 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.26,50,000/- (Rupees Twenty Six Lac Fifty Thousand only) as prayed as alternative relief along with the pendent lite and future interest @ 12% 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.

(MANMOHAN SINGH) JUDGE JULY 28, 2014