Delhi High Court
Lic Housing Finance Limited vs Mahesh Mittal & Ors on 20 July, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: 20th July, 2015
+ CS (OS) No. 2937/2014
LIC HOUSING FINANCE LIMITED ..... Plaintiff
Through Mr. Pankul Nagpal, Adv.
versus
MAHESH MITTAL & ORS ..... Defendants
Through None
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The present suit has been filed by the plaintiff under Order
XXXVII CPC for recovery of a sum of Rs.25,69,399.23/- along with
pendent lite and future interest @ 18% p.a. against the defendants.
2. Brief facts of the case as stated in the plaint are that the plaintiff
is engaged in the business of giving financial assistance in the form
of their loan schemes, for purchasing residential accommodation for
individual etc. The defendants No.1 and 2 are the borrowers under
the individual home loan scheme within the meaning of Loan
Agreement executed between the plaintiff and defendants No.1 and
2. The defendant No.3 is the builder/ Society to whom the loan
amount has been disbursed. The defendant No.2 is also represented
by the Secretary, Interim Committee, Appointed by Uttar Pradesh,
Awas Vikas Parishad, Lucknow.
3. It is also stated in the plaint that the defendant No.3 being a
Co-operative Society, having its Registration No.3289, registered on
7th April, 2004, through its Authorized Signatory, was allotted a plot of
land bearing No.7, Sector Pi II, Greater Noida, as per Lease Deed
dated 29th March, 2005, registered in Book No.1, Volume No.916, on
pages from 213 to 248, with registration No.2509, registered on 29th
March, 2005 in the Office of Sub-Registrar, Gautam Budh Nagar,
Ghaziabad, Uttar Pradesh and was constructing multi-storey Group
Housing Society. The defendant No.3 proposed that as per its
scheme they were in process of constructing various flats for its
members.
4. Accordingly, the defendants No.1 and 2 approached the plaintiff
for the loan against the Property/Flat/Unit No.3043, on 4th Floor,
measuring 1450 sq. ft. in Block/Tower - T 3, in Shiv Kala Charms.
Plot No.07, Sector-Pi II, Greater Noida, U.P. (hereinafter referred to
as the "suit property") under the plaintiff's individual home loan
scheme for purchasing the suit property.
5. It is averred in the plaint that the defendants No.1 and 2 also
produced a Share Certificate showing Membership No.248 issued by
the defendant No.2 society and further stated that the defendant No.1
had been allotted suit property, the tentative cost of the suit property
was Rs.25,00,000/- out of which a sum of Rs.6,50,000/- has already
been paid by the defendant No.1 to the defendant No.3 society vide
his share of purchase of the suit property as per details below:-
i. Receipt No.918 dated 10th May, 2008 for Rs.5.00,000/-
ii. Receipt No.936 dated 17th June, 2008 for Rs. 1,50,000/-
The said payment of Rs.6,50,000/- was confirmed by the
defendant No.3 society, which also assured the plaintiff that no other
dues were outstanding against the defendant No.1 in respect of the
suit property.
The defendant No.3 also assured that it would not issue
duplicate share certificate to the defendant No.1 without obtaining
written consent of the plaintiff and further assured that in the event of
default by the defendant No.1, if the plaintiff enforce the security by
sale, the defendant No.3 would accept the purchaser of the suit
property as a member.
It was also agreed by the defendant No.3, that in the event of
cancellation of the above allotment/ purchase of the suit property
before actual possession on any ground, the defendant No.3 shall
refund to the plaintiff the entire amount advanced / disbursed by the
plaintiff towards the cost/ value of the suit property. It was also
confirmed by the defendants that they have complied with all the
conditions set out by the local authorities while sanctioning the lay out
plan etc.
6. Therefore, the plaintiff considered the request of the defendants
and vide offer letter dated 16th June 2008 sanctioned/granted the
Loan of Rs. 18,50,000/- for the purchase of suit property to the
defendants No.1 and 2.
On the basis of the loan application the plaintiff Company had
sanctioned a sum of Rs. 18,50,000/- out of which Rs. 18,40,000/-
was disbursed to the defendant No.2 on 27th June, 2008 under the
instructions of defendant No.1 vide cheque No.768083 drawn on
HDFC Bank, KG Marg, New Delhi and defendant No. 1 was allotted
the Loan Account No. 14011015366 (14111575) and the above said
disbursed amount was debited to his above said loan account.
7. It is evident from the documents executed between the parties
whereby the defendants No.1 and 2 agreed to the terms and
conditions of the loan offer letter and further in order to secure the
above said loan of Rs. 18,50,000/- sanctioned to and availed by the
defendants No.1 and 2, the defendants executed various loan
documents and agreed to pay back the loan amount along with
interest at the floating rate of 10.50 % per annum with monthly rests
as per the terms and conditions of the offer letter and loan documents
or such other rate which the plaintiff may specify from time to time.
The defendant No.1 further accepted and confirmed that the
defendant No.2 has taken the necessary permission and approvals
from the concerned authority in respect of the project, in which the
defendant No. 1 has booked/purchased the suit property. The
defendant No.1 in order to secure the loan facility granted to him,
signed and executed the following documents:-
i. Loan Agreement dated 24th June, 2008
ii. APF-7
8. The defendant No.1 had also agreed to repay the said amount
advanced by plaintiff with interest in 240 Equated Monthly
Installments (EMI), regularly. The defendant No.1 had also agreed to
pay additional interest as per the rules of the plaintiff and all other
charges as applicable from time to time as per policy of the plaintiff in
case of delay/default in making repayment of the loan.
The defendant No.1 created security/lien/mortgage against the
suit property in favour of the plaintiff by depositing the relevant/title
documents of the suit property as security for the repayment of the
aforesaid loan. The defendant No.1 in order to create such security
also deposited the following documents in original with the plaintiff : -
i. Original Agreement cum Allotment Letter
ii. Original Share Certificate
iii. Original payment receipts
9. According to the plaintiff, defendants had also executed
Tripartite Agreement and agreed that on handing over possession of
suit property the defendant No.1 shall mortgage the suit property in
favour of the plaintiff. It was also agreed that till the suit property was
mortgaged in favour of the plaintiff, the suit property shall be treated
as security against which the plaintiff advanced loan to the
defendants No.1 and 2 and paid to defendant No.3.
In accordance with the loan offer letter and agreement the
defendant No.1 started paying installments. However the defendant
No.1 has defaulted in making the Equated Monthly Installments (EMI)
as per the above said agreement, and thereby has shown complete
negligence and deliberate default in payment of EMI resulting in huge
arrears in his account. It is pertinent to mention that the defendant
No.1 have not paid any sum towards the repayment of loan since the
month of October 2011 (last payment received on 5th September,
2011). When the ECS was presented on 5th October 2011, 5th
November 2011, 5th December 2011, the same were returned on 13th
October, 2011, 9th November 2011 and 9th December 2011
respectively and since then the defendants No.1 and 2 have not paid
any amount thereafter. The defendant No.3 has not completed the
construction work and has made multiple allotments due to which the
plaintiff was compelled to lodge criminal complaint in Economic
Offence Wing against the builder/society, the defendant No.3.
10. It is stated that the plaintiff on various occasions requested the
defendants to pay the outstanding amount however the defendants
failed to do so. Thereafter, the plaintiff got issued notice dated 7th
October, 2013 calling upon the defendants to pay the outstanding
amount. Thus, the defendant No.1 had violated the terms and
conditions of the Loan Agreement and other loan documents as they
had continued to default in the payment of EMI. The defendant No.2
also did not comply with the terms and conditions of the tripartite
agreement. By the aforesaid notice the plaintiff recalled the entire
loan. Despite the issuance of the said Legal Notice, the defendants
failed to make payment of the outstanding loan dues.
As per the books of account maintained by the plaintiff in due
course of its business, the defendants are now liable to pay a sum of
Rs.25,69,399.23 as outstanding loan as on 30th August, 2014 as per
details given below:
Particulars Amount (Rs.)
EMI Principal 94,207.92
Broken Period Interest 13451.00
EMI Interest 587457.08
Additional Interest 2,33,060.00
Document Retrieval Charges- Higher 3.00
Education Cess
Document Retrieval Charges- Education 6.00
Cess
Document Retrieval Charges 2,500.00
Cheque Dishonour 600.00
Document Retrieval Charges-Service 300.00
Tax
Legal charges 1300.00
Principal 16,36,514.23
Excess amount .00
Total Rs.25,69,399.23
It is argued on behalf of plaintiff that defendants are jointly and
severally, co-extensively and continuously liable to pay the
outstanding amount fully detailed above which the defendants have
failed to pay despite of repeated demands and issuance of demand
notice. Therefore, the plaintiff has no other option but to file the
present suit for recovery.
11. When the matter was taken up, no one appeared on behalf of
the defendants despite service. Memo of appearance is not on
record. No application for leave to defend was filed. Therefore, the
claim of the plaintiff is liable to be allowed.
12. Under these facts and circumstances, the plaintiff is entitled for
a decree for recovery of a sum of Rs. 25,69,399.23/- along with
pendente-lite and future interest @ 18% per annum as claimed in
terms of the prayer clause 25(a) and (b) of the plaint from the date of
filing of the suit till the date of payment.
13. The plaintiff is also entitled for costs.
14. The decree be drawn accordingly. The suit is disposed of.
(MANMOHAN SINGH)
JUDGE
JULY 20, 2015
