Delhi High Court
Housing Development Finance ... vs Ankit Saxena And Others on 8 January, 2015
Author: Manmohan
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 3281/2012
HOUSING DEVELOPMENT FINANCE CORP. LTD ..... Plaintiff
Through Mr. Ajay Saroya, Advocate
versus
ANKIT SAXENA AND OTHERS ..... Defendants
Through None
% Date of Decision: 08th January, 2015
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. Present suit has been filed under Order XXXVII CPC for recovery of
Rs.29,06,472/- in terms of the loan agreement in favour of the plaintiff and
against defendant nos. 1 and 2 along with pendente lite and future interest @
18 per cent per annum from the date of filing of the suit till the realization of
the said amount. In the alternative the plaintiff has prayed for a decree to be
passed in terms of the tripartite agreement for Rs. 27,50,000/- in favour of
the plaintiff and against defendant no. 3 and for Rs. 1,56,472/- totalling Rs.
29,06,472/- along with pendent lite and future interest @ 18% per annum
from the date of filing of the suit till the realization of the said amount in
favour of the plaintiff and against the defendant nos. 1 and 2.
2. 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 Development Finance
Corporation Ltd. Versus Chanchal Arya & Another [CS(OS) 126 of 2013].
3. On 31st October, 2014, the Joint Registrar had passed the following
order:-
"Summons served on defendant nos. 1 and 2 by way of
affixation.
Defendant nos. 1 and 2 have not entered their appearance.
Summons served on defendant no. 3 long back.
Defendant no. 3 also not entered appearance.
Ld. Counsel for plaintiff submits that since the defendants are
not entering their appearance, the matter be posted before the
Hon'ble Court.
This is a suit under Order XXXVII CPC.
At request, put up before the Hon'ble Court on 13 th January,
2015 for further directions."
4. From the aforesaid order, it is apparent that the defendants have not
entered appearance within ten days as prescribed under Order XXXVII
CPC.
5. Keeping in view the mandatory language of Order XXXVII Rule 3
CPC as well as the default in entering appearance, the allegations in the
plaint are deemed to be admitted.
6. Consequently, it stands established that defendant Nos. 1 and 2 have
defaulted in making payment of outstanding amounts as per the Loan
Agreement. Thus, the plaintiff is held entitled to a decree of Rs. 29,06,472/-
as claimed in the plaint.
7. However, since the relief that is claimed against the defendant No. 3
is in the alternative, and there is nothing on record to suggest that the
allotment of the flat in favour of the defendant Nos. 1 and 2 stands cancelled
by defendant No. 3, it cannot be said that the plaintiff was entitled to seek
any return of the payments/deposits of defendant Nos. 1 and 2 from the
defendant No. 3. The obligation of the defendant No. 3 in this regard arises
only in the event of the allotment in favour of defendant Nos. 1 and 2 is
cancelled by defendant No. 3. That being not the case of the plaintiff on
record, the plaintiff is entitled to a decree of the aforesaid amount against
the defendant Nos. 1 and 2 only.
8. Consequently, a decree of Rs. 29,06,472/- (Rupees Twenty Nine
Lakhs six Thousand four hundred and seventy two 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 Nos. 1 and 2. Let a decree sheet be prepared accordingly.
9. With the aforesaid observations, the present suit stands disposed of.
MANMOHAN, J
JANUARY 13, 2015
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