Delhi High Court
Housing Development Finance vs Amrit Mishra & Another on 1 May, 2014
Author: Sanjeev Sachdeva
IN THE HIGH COURT OF DELHI AT NE W DELHI
Order Reserved on: 19 th March 2014
Order Pronounced on: 1 st May, 2014
CS(OS) 2508/2012
HOUSING DEVELOPM ENT FINANCE
CORPORATION L IMITED ....PLAINTIFF
Through: Mr Neeraj Kumar,
Advocate
VERSUS
AM RIT MISHRA & ANOTHER ...DEFENDANTS
Through: Nemo
CORA M:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
SANJEEV SACHDEVA, J.
1. This is suit for recovery filed under Order 37 CPC. The
Defendant No. l has been served by affixation a t the
gate of the society on 28.01.2013 and also by way of
affixation on the notice board of the Delhi High Court
on 22.01.2013 and the process server also submitted a
report dated 28.01.2013 that he had visited the society
and met the guard Mr. Dineshwar Prasad, who made
the process server speak to someone of flat No. B-304
over telephone. The person on the other end first
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identified himself as Mr. Amrit Mishra and on hearing
about the notice stated that he is the brother of Mr.
Amrit Mishra and refused to permit the process server
entry to the society and refused to accept the summon.
The Defendant No. l has been duly served and no
appearance on behalf of Defendant No. l has been filed.
Appearance was entered by Defendant No. 2 and
Defendant No. 2 was served with summons for
judgment on 17.08.2013. N o application seeking leave
to defend has been filed on behalf of Defendant No. 2.
As per the provision of Order 37 Rule 2 sub rule 3, the
allegations in the plaint are deemed to be admitted on
the part of the Defendants and the Plaintiff is entitled to
a decree.
2. That the Plaintiff is a company engaged in the business
of granting loans, especially loans in the category of
housing loans.
3. As per the Plaintiff, the Defendants No. l and 2 jointly
approached the Plaintiff in their capacity as borrower
and builder respectively for availing housing loan by
Defendant No. 1 for the purchase of a flat to be
constructed by Defendant No. 2. It was represented by
the Defendant No. l that he had satisfied himself about
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the integrity and capability of the Defendant No. 2, to
complete the project on time.
4. The loan amounting to Rs. 32,00,000/- (Rupees Thirty
Two Lacs Only) was stated to have been sanctioned by
the Plaintiff in favour of the Defendant No. l with the
consent and acknowledgement of Defendant No. 2. The
loan was sanctioned to the Defendant No. l for a period
of 240 months with variable rate of interest.
5. In pursuance thereto, the Plaintiff disbursed Rs.
28,23,500/- (Rupees Twenty Eight Lac Twenty Three
Thousand Five Hundred Only) on behalf of the
Defendant No. 1 to Defendant No. 2 at the request of
the former. The Defendant No. l executed documents
such as promissory note of Rs. 32,00,000 in favour of
the Plaintiff and the loan agreement namely "Dual Rate
Home Loan III-Fixed to Variable".
6. Further as per the Tripartite Agreement executed
between the Plaintiff and the Defendants, the
Defendant No. l agreed that irrespective of the stage of
construction of the Project and irrespective of the date
of handing over the possession of the residential
apartment to the Defendant No. 1 by the Defendant No.
2, the Defendant No. 1 shall be liable to pay regular
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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. 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 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. l were to be paid by the Defendant No.
2 directly to the Plaintiff. It is contended that as per the
terms of the Tripartite Agreement, the Defendant No. 2
is under an obligation to return the payments/ deposits
by Defendant No. l to the Plaintiff.
7. As per the Plaintiff the last payment made by the
Defendant No. l towards the repayment of Loan and
accounted for by the Plaintiff was on 31.12.2011 and
thereafter no amount has been paid towards the
repayment of the said Loan by the Defendant No. l.
8. The Plaintiff claims to have sent a Loan Recall Notice
dated 22.11.2011, to the Defendant No. l. However
neither was the notice complied with nor replied to.
The Plaintiff by letter dated 26.04.2012, sent on
27.04.2012 claims to have demanded from the
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Defendant No. 2 to the refund of the amount owed by
Defendant No. l directly to the Plaintiff, however the
Defendant No. 2 has not complied with the said notice.
9. It is contended that the Defendant No. l has failed and
defaulted in remitting the outstanding EMIs of Rs.
2,29,758/- as also the principal outstanding amount of
about Rs. 27,51,436/-, the additional interest amounting
to Rs. 27,322/- and incidental charges of Rs. 1,100/ -,
thereby totalling to Rs. 30,09,616/-.
10. The Plaintiff has prayed for a decree of Rs. 30,09,616/-
against the Defendant No. l along with the pe ndente 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
the Defendant No. 2 of the said amount along with the
pendente lite and future [email protected] 18% per annum from
the date of filing of the suit till its realization.
11. Learned counsel for the Plaintiff has relied upon the
Judgment dated 12.11.2013 in the case of Housing
Development Finance Corporation Ltd Versus Pradeep
B Bhatnagar & Another (CS (OS) 331 of 2012) and
Judgment dated 06.12.2013 in the case of Housing
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Development Finance Corporation Ltd. Versus
Chanchal Arya & Another (CS(OS) 126 of 2013).
12. As noted hereinabove, no appearance on behalf of
Defendant No. l has been filed and no application
seeking leave to defend has been filed on behalf of
Defendant No. 2 despite service of summons for
judgment. Since appearance has not been filed by the
Defendant No. 1 and no application seeking leave to
defend has been filed by the Defendant No. 2, the
allegations of the plaintiff as noted hereinabove are
deemed to be admitted on the part of the defendants
and the Plaintiff is entitled to a decree forthwith.
13. 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. 30,09,616/- (Rupees Thirty Lakhs none
Thousand six Hundred and sixteen only) as claimed in
the plaint.
14. 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
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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. 30,09,616/- (Rupees
Thirty Lakhs nine Thousand six Hundred and sixteen
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.
15. Suit is accordingly decreed. Decree Sheet be drawn up.
SANJEEV SACHDEVA, J
MAY 1, 2014
HJ
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