Delhi District Court
Corporation Bank vs . Madhu on 27 July, 2022
CS NO. 1070/2018
Corporation Bank Vs. Madhu
IN THE COURT OF MS. NEHA SHARMA, CIVIL JUDGE01 (SOUTH)
SAKET COURT, NEW DELHI
Civil Suit No : 1070/2018
CNR No : DLST030017722018.
Corporation Bank
Having head office at:
Mangla Devi Temple Road,
Mangalore, Karnataka
and its branch officers
D66, Ground floor,
Chhattarpur Enclave, 60 feet Road,
New Delhi,
Through its authorized representative
Mr. Satish Kumar Dixit
IFSC Code: CORP00015338
PS Mehrauli ...............Plaintiff.
VERSUS
1.Madhu D/o Sh. Ram Parvesh
2. Ram Parvesh S/o Sh. Chander Dev Prasad Both R/o H. no. 1723, Block A SGM Nagar, NH4, Faridabad, Haryanan121004 Page no. 1 of 8 (Neha Sharma) CJ01/(South) Saket Court/New Delhi CS NO. 1070/2018 Corporation Bank Vs. Madhu
3. M/s Bliss Infrastructure P. Ltd.
Through its Directors Regd. Office at 153, 3rd Floor, Sarai Julena, New Delhi25 .........Defendant Also at 312313, Hemkunth Chambers 89, Nehru Place New Delhi110019.
Email:[email protected] SUIT FOR RECOVERY OF RS. 2,04,327/ ALONGWITH PENDENTELITE AND FUTURE INTEREST.
EXPARTE JUDGMENT:
1. Succinctly, it is the case of the plaintiff that Defendant no. 1 and 2 approached the plaintiff bank for housing loan facility to purchase an under construction flat bearing no. 303, on 3rd Floor, in BlockPluto3, Type2 BHK, upper area measuring 795 sq. Ft. in Saraswati Apartments Suits, situated at NH58, Duhai (Rajnagar), Ghaziabad, U.P. (hereinafter referred to as "suit property") vide loan application form dated 23.12.2013.
2. Subsequently, the said request of defendants was considered by the plaintiff bank and sanctioned the facility vide CSI dated 30.12.2013 to the tune of Rs. 9,00,000/. The defendants had agreed to repay the aforesaid loan amount alongwith floating rate of interest i.e. 10.25% p.a. compounded monthly. It was also stipulated that in case of default in payment of EMI on the due date, a penal Page no. 2 of 8 (Neha Sharma) CJ01/(South) Saket Court/New Delhi CS NO. 1070/2018 Corporation Bank Vs. Madhu interest @ 2% per annum shall be charged over the normal rate of interest and will be recovered separately.
3. The said defendant no. 1 and 2 had agreed to the terms and conditions and signed the CSI dated 30.12.2013 and also executed the following documents dated 08.01.2014 respectively in favor of the applicant bank i.e. the agreement for term loan, letter of undertaking and declaration from the borrower, request for disbursement letter and memorandum of agreement w.r.t. the suit property.
4. The aforesaid credit facility was secured by mortgage of suit property. The defendants also agreed to pay interest and other charges to the plaintiff on the principal amount of the said loan from time to time as per the terms and conditions set out in the said loan agreement. Pursuant to the execution of aforesaid documents, the plaintiff bank disbursed the said sum to the defendants in terms of the aforesaid loan agreement.
5. In terms of the aforesaid loan agreement, defendants were required to make payment of the principal amount to the plaintiff, in accordance with the repayment Schedule contained in the said loan agreement and also to pay interest and other charges to the plaintiff at the rate and in the manner as set out in the said agreement. However, in view of the various defaults committed by the defendants in payment of principal amount, interest and other monies due under the said loan agreements and also in performance of the terms and conditions of the said loan agreements, like creation of encumbrance in the mortgage property in question, the plaintiff became entitled to recall the entire amounts of its said loan together with all interest and other monies thereon under the said loan agreements as due and payable forthwith and accordingly.
6. Plaintiff thereafter called upon the defendants to pay the amount due vide demand notice dated 19.06.2018. On receipt of the said demand notice, the Page no. 3 of 8 (Neha Sharma) CJ01/(South) Saket Court/New Delhi CS NO. 1070/2018 Corporation Bank Vs. Madhu defendants neither replied to the same nor paid the amount. Having left with no other option, the present is filed seeking relief in paragraph no. 1 of the judgment.
7. Consequent to the service of summons upon the defendant no. 1 and 2, none appeared. Consequently, defence of defendant no. 1 and 2 was struck off vide order dated 24.04.2019. Defendant no. 3 was duly served by way of publication on 25.03.2022 however, none appeared. Upon defendant no. 3's failure to appear before the court and file written statement, the right to file written statement was closed and it was proceeded exparte for nonappearance vide order dated 02.05.2022.
8. Ld Counsel for plaintiff relied on judgment in case titled Parsvnath Developers Limited vs Mr. Vikram Khosla, CS (COMM) 618/2019 & CM no.
8431/2020 of Hon'ble Delhi High Court, in which is was held as under:
"The question which arises is whether the plaintiff should be directed to lead exparte evidence. The Plaint having been verified and is also supported with affidavit / Statement of Truth on behalf of the plaintiff, and the defendant having been proceeded exparte no purpose would be served if the plaintiff was directed to lead ex parte evidence. A Coordinate bench of this court in the case of Satya Infrastructure Ltd. and Ors. v. Satya Infra and Estates Pvt. Ltd., 2013 (54) PTC 419 (Del), has held as under:
4. I am of the opinion that no purpose will be served in such cases by directing the plaintiffs to lead ex parte evidence in the form of affidavit by way of examinationin chief and which invariably is a repetition of the contents of Page no. 4 of 8 (Neha Sharma) CJ01/(South) Saket Court/New Delhi CS NO. 1070/2018 Corporation Bank Vs. Madhu the plaint. The plaint otherwise, as per the amended CPC, besides being verified, is also supported by affidavits of the plaintiffs. I fail to fathom any reason for according any additional sanctity to the affidavit by way of examination inchief than to the affidavit in support of the plaint or to any exhibit marks being put on the documents which have been filed by the plaintiffs and are already on record. I have therefore heard the counsel for the plaintiffs on merits qua the relief of injunction."
9. Hence, going by the above said judgment, the present court dispensed with the requirement of recording of exparte evidence and proceeded under Order VIII Rule 10 CPC.
10. Final arguments were heard on 05.07.2022. Vide separate statement recorded on 06.07.2022, Ld. Counsel for plaintiff has stated that he does not wish to pursue reliefs in prayed clause 2 to 7 of the plaint. Ld. Counsel for plaintiff further stated that defendant no. 3 is liable to pay the outstanding amount under the Tripartite Agreement as construction was never completed and sale deed could never be executed.
FINDINGS
11. In support of its contentions, the plaintiff has filed Power of Attorney in favour of Sh. Satish Kumar Dixit; Original Loan Application dated 23.12.2013; Original credit sanction letter; original agreement for term loan (housing) dated 8.01.2014, original undertaking by defendant no. 1 and 2 dated 08.01.2014, original request for disbursement of loan dated 08.01.2014, original agreement dated 08.01.2014, acknowledgement of Debt dated 02.01.2017, copy of agreement letter dated 14.12.2013 executed between defendant no. 3 and defendant no. 1 and 2, copy of permission to mortgage, copy of noting of lien over flat, copy of Page no. 5 of 8 (Neha Sharma) CJ01/(South) Saket Court/New Delhi CS NO. 1070/2018 Corporation Bank Vs. Madhu tripartite agreement, copy demand notice dated 19.06.2018 and Statement of accounts maintained by the plaintiff bank from 01.04.2014 to 07.09.2018.
12. General power of attorney in favour of Sh. Satish Kumar Dixit shows that the he has been duly authorized to file and pursue the present suit, Original Loan Application dated 23.12.2013; Original credit sanction letter; original agreement for term loan (housing) dated 8.01.2014, original undertaking by defendant no. 1 and 2 dated 08.01.2014, original request for disbursement of loan dated 08.01.2014, original agreement dated 08.01.2014, acknowledgement of Debt dated 02.01.2017, copy of agreement letter dated 14.12.2013 executed between defendant no. 3 and defendant no. 1 and 2 bear signatures of defendant no. 1 and 2. Defendant did not file his written statement or disputed his signatures or the genuineness or authenticity of the abovementioned documents.
13. The statement of account in the name of the defendant shows Rs. 2,04,327/ to be the amount due as on 07.09.2018. The demand notice dated 19.06.2018 along with postal receipts duly addressed to the defendant, are also placed on record which show that despite receiving the said legal notice and summons in the present suit, the defendants did not dispute the claims of the plaintiff and challenge the above said documents placed on record by the plaintiff which leaves this court with no other option than to drop adverse inference against the defendants under Section 114 of Indian Evidence Act, 1872.
14. Therefore, it is proved that the said loan was taken by defendant no. 1 and 2 from the plaintiff bank and defendant no. 3 had undertaken to complete the construction within 24 months from the date of agreement and within an extended period of 3 months failing which it shall return the amount with interest to the plaintiff bank. It is stated that defendant no.3 failed to discharge its obligation under the tripartite agreement. Thus, in the absence of any reason to disbelieve the Page no. 6 of 8 (Neha Sharma) CJ01/(South) Saket Court/New Delhi CS NO. 1070/2018 Corporation Bank Vs. Madhu testimony of plaintiff in that regard, it is proved that the defendants are liable to pay Rs. 2,04,327/ as principal amount.
15. Moreover, the suit is well within the limitation period as the same has been filed within three years from the date of acknowledgement on 02.01.2017 and further the cause of action has been continuing as defendants have not paid the dues till date.
16. Also, this court has the territorial jurisdiction to try this suit as loan facility was availed by the defendants and loan documents were executed by the defendants within the territorial jurisdiction of this court as has been established from averments of the plaint which are deemed to be admitted by the defendants.
17. It is true that the defendants have not appeared in the suit to contest the claim of the plaintiff, however, it is trite proposition of law that the primary burden to prove the case is on the plaintiff and in the opinion of this court, the burden has been successfully discharged by the plaintiff. Hence, in light of the above analysis, court is of the opinion that defendants are liable to pay a total sum of Rs. 2,04,327/ to the plaintiff.
18. As regard the interest, it is evident from the perusal of the agreement for term loan that the agreed rate of interest was 10.25% p.a. which is also the rate of interest claimed by the plaintiff. Therefore, in the opinion of this court, granting the interest @ 10.25% p.a. to the plaintiff bank as claimed by it would meet the ends of justice.
19. Hence, the suit is hereby decreed with costs and the defendant is directed to pay Rs. 2,04,327/ to the plaintiff along with the interest at the rate of 10.25% p.a. from the date of filing of the suit till the date of actual and final realization of amount.
20. Costs of the suit shall be paid by defendant to the plaintiff as per the rules.
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21. Let decree sheet be drawn up accordingly.
22. File be consigned to record room after due compliance.
Pronounced in open court:
Dated: 27.07.2022 (Neha Sharma) CJ01(South)Saket/New Delhi/27.07.2022 Note: This Judgment contains eight pages and all the pages have been checked and signed by me.
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