Delhi High Court
Icici Home Finance Co Ltd vs Binod Kumar & Anr on 3 April, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 14th March, 2018
Pronounced on: 03rd April, 2018
+ CS(COMM) 763/2018 & I.A. 20441/2014
ICICI HOME FINANCE CO LTD ..... Plaintiff
Through : Mr.Gautam Singhal and
Mr.Naveen Kumar, Advocates.
versus
BINOD KUMAR & ANR ..... Defendants
Through : None being ex parte.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
1. The plaintiff has filed this suit against the defendants for recovery
of 1,21,95,003/- with interest @ 24% pa for permanent injunction,
infringement of trademark, passing off, damages, dilution, rendition of
accounts against the defendants.
2. The plaintiff alleges to be a company incorporated under the
provisions of the Companies Act, 1956 having its registered office at
ICICI Towers, Bandra Kurla Complex, Bandra (East), Mumbai - 400051
and its Branch Office at 2nd Floor, Videocon Tower, Jhandewalan Extn.,
New Delhi. It is engaged in the business of providing finance facilities to
its customers for the purchase/ construction against the mortgage
immovable property. Mr.Sandeep Sharma is authorised to institute this
suit. The defendants are the purchasers and have availed the loan to the
tune of 50,80,850/- under its Home Loan Scheme vide loan agreement
bearing No.NHDEL00000731824 against the mortgage of their built up
property bearing House No.290, Block A-I, Sushant Lok Phase - II,
Gurugram - 122001 (hereinafter referred as 'mortgaged property').
3. It is alleged defendants approached the plaintiff company at their
branch office at Jhandawalen Extension, New Delhi - 110055 in the
month of April/May 2008 and required loan facility from the plaintiff for
the purchase of mortgaged property. The credit facility application form
was filled up by the defendants and on their assurances the plaintiff
agreed to grant finance facilities to them. The defendants executed credit
facility application form dated 13.05.2008 containing all the terms and
conditions of the loan. A total sum of 50,80,850/- was disbursed to the
defendants on 15.05.2008 by the plaintiff company from its office at
Jhandawalen Extension, New Delhi - 110055 for the purchase of the
mortgaged house. The loan disbursement memo is also annexed with the
plaint.
4. The said loan of 50,80,850/- was initially repayable with the
prevalent interest @ 14% per annum in 120 Equated Monthly
Installments (EMIs)of 78,889/- each in terms of the aforesaid loan
agreement. The said EMIs were payable till 10.12.2020. It was a floating
rate of interest which was subject to change from time to time which may
be adjusted in the tenure and/ or the EMIs amount. All the original title
documents of mortgaged property are in possession of the plaintiff viz
the sale deed dated 16.05.2008 in favour of the defendant No.1; the
agreement to sell and copy of the agreement for fittings and fixtures;
copy of the sale deed dated 01.06.2006 in favour of the seller and
previous complete chain of title documents.
5. The defendants failed to discharge their liability in time and
defaulted in making regular payments of the EMIs and have been
extremely irregular. The plaintiff thus terminated the loan agreement and
recalled the entire loan amount and the loan was classified by the plaintiff
bank as a Non Performing Asset (NPA) in accordance with the relevant
regulations and guidelines issued by the Reserve Bank of India from time
to time.
6. The plaintiff in exercise of its right got issued notice dated
16.07.2010 under Section 13 (2) of the SARFAESI Act, 2002 to the
defendant No.1 and called upon him to make payment of 68,48,614/-
as per the statement of account dated 16.07.2010. However, the
defendants failed to make the payment and per statement of account
dated 07.03.2014 the defendants are liable to pay the suit amount of
1,21,95,003/- which they failed to pay despite repeated requests and
demands hence the plaintiff filed the suit for recovery of suit amount of
1,21,95,003/- with simple interest @ 24% pa from 07.03.2014 till date
of realization.
7. The defendants were proceeded ex parte vide order 20.11.2015.
The ex parte evidence was recorded by way of filing of an affidavit of
PW1 Sh.Sandeep Sharma, an authorised representative of the plaintiff,
who reiterated the facts as stated in the plaint and proved power of
attorney as Ex.PW1/A; credit facility application form as Ex.PW1/B; the
sale deed dated 16.05.2008 as Ex.PW1/C; agreement to sell dated
13.05.2008 as Ex.PW1/D; the agreement for fitting and fixtures dated
13.05.2008 as Ex.PW1/E; the sale deed dated 01.06.2006 as Ex.PW1/F;
sale deed dated 10.07.2003 as Ex.PW1/G; the sale deed dated 10.01.1996
as Ex.PW1/H; possession letter dated 12.02.1996 as Ex.PW1/I; the
transfer certificate dated 08.08.1995 as Ex.PW1/J; flat buyer agreement
dated 08.08.1995 as Ex.PW1/K; title survey report dated 01.05.2008 as
Ex.PW1/L; legal notice dated 16.07.2010 as Ex.PW1/N; and statement of
account dated 16.07.2010 duly certified as Ex.PW1/O.
8. The present suit has been filed on 13.10.2014. The loan agreement
Ex.PW1/B was entered into between the parties on 13.05.2008. The said
agreement provides for 120 EMIs to the tune of 78,889/- each and the
loan was payable till 10.12.2020 through EMIs. The loan amount was
since secured by mortgage of the property and since the original title
documents are in possession of the plaintiff so considering the terms and
conditions of the loan and it being a secured one through mortgage, so as
per provisions contained in Article 62 of the Limitation Act, the suit of
the plaintiff is well within limitation.
9. The Article 62 of the Limitation Act notes:-
"62. To enforce payment of 12 years from when the money
money secured by a sued for becomes due
mortgage or otherwise
charged upon immovable
property."
10. Further, the Division Bench of this Court in M P Mansinghka vs
Industrial Finance Corporation of India AIR 2007 Delhi 81 on the issue
of limitation notes:-
"2.The liability of the Director has to be
ascertained not from the date when he tendered
resignation or from the date when he had revoked
the personal guarantee as was offered by him but
from the date when the loan was advanced and the
loan agreement was executed unless the creditor
itself consents or approves to any subsequent
arrangement. Admittedly, the loan was advanced
in the year 1991 and, therefore, the said
resignation dated 20.1.1997 from the Board of
Directors could not have absolved the petitioner
from his liability and he continued to remain
jointly and severally liable along-with the
company and its other Director i.e. respondent
Nos.2 and 3 herein. As far as other contention of
the petitioner is concerned that since the loan was
advanced in the year 1991 and, therefore, the
period of limitation came to an end within 3 years
period, has also no force as the petitioner had
given his personal guarantee by mortgaging
immovable property in the year 1991 and the
limitation for enforcing the claim involving
mortgaged property is 12 years and not 3 years as
per Article 62 of the Limitation Act. We, therefore,
do not agree with the contention of the petitioner
that since the loan was granted in the year 1991
and on document of acknowledgement of debt was
filed on record, therefore, the period of 12 years
could not have been taken into consideration for
the limitation period. The loan was advanced in
the year 1991, loan agreement was also executed
in the year 1991, Deed of Guarantee by
mortgaging immovable property was executed in
1991 and taking 12 years period of limitation, the
same would be over only by 2003. In the present
case original application was filed in the year
2000 which was numbered in the year 2001,
therefore, taking the said period of 12 years the
original application filed by respondent No. 1 was
well within limitation and not barred by time."
11. Hence, considering the facts and circumstances of the case where
the defendants chose not to appear and contest the suit of the plaintiff
coupled with testimony of the plaintiff's witness having gone un-rebutted
on all counts including limitation; the suit of the plaintiff is hereby
decreed against the defendants for an amount of 1,21,95,003/- with
interest @ 12% pa from 07.03.2014 till the date of the realization. The
costs of the suit is also awarded in favour of the plaintiff. Both the
defendants are liable to pay the decreetal amount jointly and/or severally
being the principal borrower and guarantor. Decree sheet be drawn.
I.A. 20441/2014
12. In view of above order since the subject property is outside the
territorial jurisdiction of this Court, the application is dismissed.
YOGESH KHANNA, J
APRIL 03, 2018
M
