Delhi District Court
Union Bank Of India vs Lalita Sarkar Alias Lalita Hingorani on 19 July, 2025
IN THE COURT OF SH.RAJ KUMAR TRIPATHI:
DISTRICT JUDGE (COMMERCIAL COURT)-08
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
CS (COMM.) No.197/2019
(Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others)
CNR No. DLSE01-005546-2019
Union Bank of India
(Erstwhile Corporation Bank)
Address:-
Community Centre,
New Friends Colony, New Delhi.
........Plaintiff
Through: Mr. Akhil Gupta, advocate.
Versus
1. Mrs. Lalita Sarkar Alia Lalita Hingorani
32/203, 2nd Floor, Vikram Vihar,
Lajpat Nagar-IV, New Delhi-110 024.
....... Defendant no.1
Through:- Mr. Mayank Mikhail Mukherjee,
Leagal Aid Counsel
2. Mr. Ayan Sarkar
4A LIG Flats, Taimoor Nagar,
New Friends Colony, New Delhi-110 025.
....... Defendant no.2
3. Amrapali Keisure Valley Developers Pvt. Ltd.
Through its Directors,
Registered Office:
07, 3rd Floor, Nipun Towers Community Centre,
Karkardooma, Delhi-110 092.
....... Defendant no.3
(Defendants no.2 and 3 were proceeded ex parte
vide order dated 27.01.2025)
Raj Date of filing : 23.07.2019
Kumar Final arguments heard on : 10.07.2025
Tripathi Date of Judgment : 19.07.2025
Digitally signed
by Raj Kumar
Tripathi
Date:
2025.07.19
11:10:32 +0530 CS (COMM.) No.197/2019 Page No. 1 of 21
(Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others)
JUDGMENT:
1.1 Present suit has been filed by plaintiff against defendants for seeking recovery of Rs.6,16,166/-(Rupees Six Lakhs Sixteen Thousand One Hundred Sixty Six only) (in short 'the outstanding amount') as on 25.05.2019 along with pendente lite and future interest @ 9.65% per annum and penal interest @ 2% from the date of filing of the suit till its realization and cost of the suit.
Factual Matrix of Case 2.1 Plaintiff bank is a banking company constituted under The Banking Companies (Acquisition and Transfer of Undertakings) Act V of 1980 having its head office at Mangladevi Temple Road, Pandeshwar, Managalore, Karnataka-575 001 and one of its branches amongst various places at New Friends Colony, New Delhi.
2.2 Mr. Tiwari Ajay Kumar Deepak, who was posted as Branch Manager of plaintiff bank, has signed, verified and instituted the present suit against defendants, having been authorized vide General Power of Attorney dated 05.10.2009 to sign and verify the pleadings and affidavit etc. on behalf of plaintiff and do all such acts as necessary for the proper conduct of the suit. He claims to be well conversant with the facts of the case on the basis of records maintained by plaintiff in the ordinary course of business.
Raj 2.3 In January, 2014, defendants no.1 and 2 approached Kumar Tripathi the plaintiff bank with a request to avail a home loan facility of Digitally signed by Raj Kumar Rs.11,00,000/-(Rupees Eleven Lakhs only) to purchase an under Tripathi Date: 2025.07.19 construction residential flat bearing no.E1-1202, 12th Floor, 11:11:03 +0530 CS (COMM.) No.197/2019 Page No. 2 of 21 (Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others) Tower-E1, in "Leisure Park" situated at Plot No.GH-01, Tech Zone-IV, Greater Noida, District Gautam Budh Nagar, U.P. ('subject property') which was being developed and promoted by defendant no.3.
2.4 Upon receipt of aforesaid application, plaintiff sanctioned a loan of Rs.11,00,000/- to defendants no.1 & 2 on 04.01.2014, wherein, the said defendants were liable to repay the loan amount in 120 months in 102 monthly installments of Rs.16,200/- with an initial repayment holiday of eighteen months. They were also liable to pay interest on the loan amount @ 10.25% (floating) per annum. It was also agreed that in the event of failure of defendants no.1 and 2 to make payment of loan or interest or both, penal interest @ 2% would be levied and payable by them.
2.5 Defendants no.1 and 2 executed the following documents on 08.03.2014 with respect to the home loan granted by plaintiff to them:-
"a) Agreement for term loan for the purpose of securing the home loan for the purchase of property being developed by defendant no.3.
b) Letter of undertaking/declaration from defendants no.1 and 2 stating that they are not enjoying the credit limits from any bank.
c) General Power of Attorney signed and executed by Raj them in favour of plaintiff bank.
Kumar Tripathi d) Affidavit signed and executed by them in favour of Digitally signed by Raj Kumar Tripathi plaintiff bank.
Date: 2025.07.1911:11:10 +0530 e) A general power of attorney dated 08.03.2014 signed and executed by defendant no.1 and defendant CS (COMM.) No.197/2019 Page No. 3 of 21 (Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others) no.2 with respect to pledge of share in the housing society to the plaintiff bank.
f) A letter from defendant no.3 dated 03.02.2014 in favour of plaintiff bank stating that the unit no.1202 on the 12th Floor, Block E1 at Amrapali Leisure Park situated at the Group Housing Plot No. GH-01, Techzone-IV, Greater Noida, District Gautam Budh Nagar project promoted by defendant no.3 is subject to lien in favour of plaintiff bank.
g) A letter dated 03.02.2014 issued by the defendant no.3 in favour of the plaintiff bank, wherein the defendant no.3 granted permission to the plaintiff bank to create a mortgage on the apartment by way of security for repayment."
2.6 Pursuant to execution of aforesaid documents, plaintiff opened an account in favour of defendants no.1 and 2 being CHOME/01/140019 and granted home loan to them. Defendants no.1 and 2 signed and executed Memorandum of Deposit of title deeds dated 08.03.2014 in favour of plaintiff bank along with Allotment-Cum-Buyer Agreement executed between defendants no.1 and 3.
2.7 Defendant no.3 also executed Tripartite Agreement with plaintiff bank on 08.03.2014, wherein, defendant no.3 Raj undertook to return all the money received by it in connection Kumar with amount disbursed by plaintiff bank to defendant no.1 for Tripathi Digitally signed purchase of flat with interest to plaintiff bank in the event of by Raj Kumar Tripathi Date: defendant no.3 fails to complete the transaction qua the flat 2025.07.19 11:11:18 +0530 entered into under the Allotment-Cum-Buyer Agreement and its CS (COMM.) No.197/2019 Page No. 4 of 21 (Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others) registration.
2.8 Upon disbursement of sanctioned amount in terms of Term Loan Agreement dated 08.03.2014, defendants no.1 and 2 jointly and severally failed to maintain financial discipline and defaulted in payment of EMIs. As on 24.05.2019, the total outstanding against the defendants including the overdue interest is Rs.6,16,166.36.
2.9 As defendants failed to regularize their loan account, plaintiff sent a legal notice dated 23.05.2019, calling upon them to make the payment of outstanding dues along with interest @ 10.25% and penal interest @ 2% with effect from date of legal notice till the date of payment. It was mentioned in the said notice that in case of failure to make payment as demanded, plaintiff would take appropriate civil or criminal proceedings against defendants.
2.10 Plaintiff avers that defendant no.3 is also liable to pay the amount disbursed to it at the request of defendants no.1 and 2 as it has failed to hand over and deliver the flat as promised to them (defendants no.1 and 2). Also in terms of Tripartite Agreement dated 08.03.2014, defendant no.3 is equally jointly and severally liable to pay for defaults.
2.11 It is submitted that the legal notice dated 25.05.2019 was delivered to defendants at their last known addresses. However, they failed to regularize loan account Raj CHOME/01/140019 and also failed to repay the principal and Kumar interest amount including overdue interest amounting to Tripathi Rs.6,16,166.36 being the outstanding amount as on 25.05.2019.
Digitally signed by Raj KumarTripathi Hence, the present suit.
Date: 2025.07.19 11:11:25 +0530 CS (COMM.) No.197/2019 Page No. 5 of 21(Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others) Service of defendant 3.1 Pursuant to summons issued to defendants, defendant no.1 has contested the suit by way of filing written statement, wherein, she took the following preliminary objections:-
(i) All the material allegations made in the suit are false, fictitious and self-serving besides being untenable and impermissible as per law. Hence the suit is not maintainable either in law or facts.
(ii) There is no cause of action to file the suit as plaintiff has suppressed all the material facts. The suit has been filed with ulterior motives to get wrongful gains by wrongful means.
(iii) The present suit is bad in the eyes of law and not maintainable because it is based on misrepresentation and suppression of true and correct facts.
3.2 As per defendant no.1, her marriage with defendant no.2 was solemnized on 12.03.2007. They were working together at Wipro Spectramind. After marriage, they planned to buy a flat i.e. subject property from defendant no.3. Defendant no.3 agreed to transfer the said flat as described in the agreement. 3.3 The developer/defendant no.3 agreed to facilitate the process of availing loan facility from financial bodies for purchase of flat. Defendants no.1 and 2 agreed to pay the price of the flat and other charges calculated on the basis of area, including pro-rata share of common areas in the complex. 3.4 She stated that she along with defendant no.2 approached the plaintiff expressing their desire and interest to Raj avail a home loan of Rs.11,00,000/- for the purpose of purchasing Kumar Tripathi a brand new flat. Accordingly, the loan amount of Rs.11,00,000/-
Digitally signedby Raj Kumar was sanctioned. The plaintiff bank disbursed Rs.5,83,000/-
Tripathi Date:2025.07.19 directly to defendant no.3. The remaining amount was never 11:11:33 +0530 CS (COMM.) No.197/2019 Page No. 6 of 21 (Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others) transferred by plaintiff to defendant no.3. 3.5 Defendant no.1 claims to have paid an amount of Rs.6,00,000/- against the disbursed amount of Rs.5,83,000/- to plaintiff. She contends that the present suit has been devised as a tool to harass her by dragging in the Court. She has been made to undergo the rigors of prolonged frivolous litigation. She alleges that defendant no.3 played a major role in transaction with plaintiff.
3.6 Defendant no.1 has admitted to have approached the plaintiff bank for availing the home loan facility for purchasing a new flat being under construction unit, sanction of home loan of Rs.11,00,000/- and disbursal of Rs.5,83,000/- by plaintiff bank. In the prayer clause, defendant no.1 stated that she is ready to settle the entire principal amount in single installment except penal interest. She prays to exempt her from paying penal interest and future interest. She has further prayed to direct plaintiff to disburse the remaining amount to defendant no.3.
Replication 4.1 Plaintiff filed replication to written statement of defendant no.1, wherein, the averments of written statement have been denied and plaintiff has reiterated and reasserted its stand as set out in the plaint.
Ex parte Proceedings against Defendants no.2 and 3 Raj 5.1 As per record of the case, defendants no.2 and 3 were Kumar Tripathi served by mail and also by way of affixation at their last known Digitally signed addresses. Defendant no.3 was also served through the Official by Raj Kumar Tripathi Date: Receiver via e-mail. Defendants no.2 and 3 were directed to 2025.07.19 11:11:42 +0530 CS (COMM.) No.197/2019 Page No. 7 of 21 (Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others) complete the pleadings within stipulated time. 5.2. However, as defendants no.2 and 3 did not file written statement to the suit within stipulated time, opportunity given to them for filing of written statement was directed to be closed vide order dated 27.01.2025. Due to non-appearance of said defendants despite service, they were also directed to be proceeded ex parte.
Issues 6.1 From the pleadings of the parties, the following issues were framed on 04.02.2023:-
(i) Whether the plaintiff is entitled to the relief prayed?OPP.
(ii) Relief, if any.
Evidence of parties 7.1 In support of its case, plaintiff has examined its Chief Manager/AR Mr. Arshad Alam as PW1, who filed his evidence by way of affidavit, Ex.PW1/A, wherein he has reiterated and reaffirmed the same facts as stated in the plaint. 7.2 Before coming to the testimony of plaintiff's witness, the documents relied upon by PW1 are hereby put in a tabulated form as under:-
S.No. Details of document Exhibit Mark 1. Plaint Ex.PW1/1 2. Copy of Power of Attorney. Ex.PW1/2 Raj 3. Copy of sanction letter dated 04.01.2014. Ex.PW1/3 Kumar 4. Copy of Term Loan Agreement dated 08.03.2014 Ex.PW1/4 Tripathi 5. Copy of letter of undertaking/declaration from Ex.PW1/5 Digitally signed by Raj Kumar the defendant no.1 and defendant no.2 dated Tripathi Date: 08.03.2014. 2025.07.19 11:11:49 +0530 CS (COMM.) No.197/2019 Page No. 8 of 21
(Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others)
6. Copy of Irrevocable General Power of Attorney Ex.PW1/6 dated 08.03.2014
7. Copy of affidavit signed and executed by Ex.PW1/7 defendants no.1 in favour of plaintiff dated 08.03.2014.
8. Copy of General Power of Attorney dated Ex.PW1/8 08.03.2014 signed and executed by defendants no.1 and 2 with respect to the pledge of share in housing society to plaintiff bank.
9. Copy of letter of defendant no.3 dated Ex.PW1/9 03.02.2014.
10. Copy of letter dated 03.02.2014 of defendant Ex.PW1/10 no.3 with respect to create a mortgage on the apartment by way of security for repayment
11. Copy of Memorandum of deposit of title deeds Ex.PW1/11 dated 08.03.2014
12. Copy of Tripartite Agreement dated 08.03.2014 Ex.PW1/12A
13. Copy of Allotment-cum-Flat Buyer Agreement Ex.PW1/12B dated 30.05.2011
14. Copy of bank statement of the loan account Mark-A
15. Office copy of legal notice along with postal Ex.PW1/13 receipt (colly.)
16. Copy of acknowledgment of Debt Ex.PW1/14 7.3 On the other hand, defendant no.1 examined herself as DW1. She relied upon the following documents:-
S.No. Details of document Exhibit Mark
1. Copy of disbursed amount Ex.DW1/1
2. Copy of Reminder-1 Letter dated Ex.DW1/2 (colly.)
10.01.2017, demand letter dated
04.01.2016, possession letter
Raj dated 04.01.2016 and demand for
Kumar payment of additional
Tripathi
compensation letter dated
Digitally signed
by Raj Kumar
Tripathi 04.01.2016.
Date: 2025.07.19
11:12:10 +0530
3. Copy of letter dated 30.07.2024 Mark-A
CS (COMM.) No.197/2019 Page No. 9 of 21
(Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others) with reference no.NFCB/33/2024- 25. Findings and Observations 8.1 I have heard and considered the submissions advanced by learned counsel for parties and perused the material on record.
Issue wise findings are as under:-
Issue no.(i) Whether the plaintiff is entitled to the relief prayed?OPP.
9.1 Onus to prove this issue lies on plaintiff. In order to discharge the onus to prove the issue, plaintiff has examined its Branch Manager/AR Mr.Arshad Alam, who in his affidavit of evidence Ex.PW1/A has deposed and corroborated about the facts as mentioned in the plaint. He has proved the documents as mentioned in para no.7.2 of the judgment.
9.2 Learned counsel for defendant no.1 submitted that the documents filed and relied on by plaintiff are not admissible as the documents are not supported by section 2A r/w section 4 of The Bankers' Books Evidence Act, 1891. He further submitted that even the Certificate u/s 65B of The Indian Evidence Act, 1872 relied upon by PW1 is defective. He further submitted that the plaintiff's entire case is illegal and in view of judgment passed by Hon'ble Supreme Court in the case of Bikram Chatterji & Raj Others v. Union of India & Others dated 18.04.2022 in WP Kumar (C)No. 940/2017, the act of defendant's account being declared as Tripathi NPA is proscribed. Relying upon Clause 3 of the Tripartite Digitally signed by Raj Kumar Agreement dated 08.03.2014, counsel for defendant no.1 Tripathi Date: submitted that defendant no.3 i.e. the builder is liable to pay the 2025.07.19 11:12:18 +0530 CS (COMM.) No.197/2019 Page No. 10 of 21 (Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others) entire amount due towards the plaintiff bank. 9.3 He further submitted that the entire sanctioned amount was not disbursed by the plaintiff. Plaintiff agreed to pay Rs.11,00,000/- to the builder. However, only an amount of Rs.8,38,000/- was disbursed by plaintiff to builder. He submitted that non-disbursal of the remaining loan amount by plaintiff bank has led to opposition, where even though the possession letter has been given by defendant no.3, plaintiff bank has refused to pay its remaining balance amount and due to said reason, she is unable to get possession of the flat. The entire situation has arisen because of the conduct of the plaintiff bank and therefore, plaintiff bank cannot claim restitution under the contract. 9.4 He further submitted that the possession letter dated 04.01.2016 demands a sum of Rs.4,09,743/-. Defendant no.1 has always been ready to pay the balance after deducting the amount payable by the plaintiff bank and subject to regularization of the loan account, so that the flat may be transferred in her name. Defendant no.1 claims to have no liability towards plaintiff bank and accordingly, she prays to dismiss the suit with heavy cost. 9.5 Per contra, learned counsel for plaintiff submitted that defendant no.1 has unequivocally admitted that defendant no.3 (the developer) is jointly and severally liable to refund the disbursed loan amount to plaintiff in the event of failure to deliver possession or complete the project. He further submitted that defendant no.1 has taken conflicting positions in her pleadings Raj Kumar and the oral testimony regarding the amount disbursed under the Tripathi sanctioned loan of Rs.11,00,000/-, thereby impeaching her own Digitally signed by Raj Kumar Tripathi credibility.
Date:9.6 He argued that the final demand could not have been 2025.07.19 11:12:25 +0530 CS (COMM.) No.197/2019 Page No. 11 of 21 (Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others) fulfilled by plaintiff bank for the following two reasons:-
(a) The sanctioned loan amount was only ₹11 lakhs and out of the same, ₹8.36 lakhs had already been exhausted, leaving only a theoretical balance of approximately ₹2.63 lakhs.
(b) Therefore, disbursement of a further ₹4 lakhs was never within the financial scope or contractual obligation of the bank, as the plaintiff had already disbursed funds in excess of 75% of the sanctioned facility.
9.7 Learned counsel for defendant no.1 further argued that the defence based on non-disbursement of ₹4 lakhs is factually baseless and contractually misconceived. He submitted that there is no collusion between plaintiff and defendant no.3. There is no proof of payment towards principal liability. He further submitted that the statement of account relied upon by plaintiff has been validated by cross-examination and admission of defendant no.1. The entire defence of defendant no.1 is based on self contradiction and evasive testimony. In the light of aforesaid submissions, learned counsel for plaintiff prayed to decree the suit in favour of plaintiff and against the defendants.
Findings on issue no.(i) 10.1 I have given my thoughtful consideration to the submissions advanced by learned counsel for parties and perused the material on record.
10.2 At the outset, this Court notes that as per section 53 Raj Kumar of The Bhartiya Sakshya Adhiniyam, 2023, the facts admitted by Tripathi a party need not be proved. Section 53 of The Bharatiya Sakshya Digitally signed by Raj Kumar Tripathi Adhiniyam (BSA), 2023, deals with the facts that are admitted Date: 2025.07.19 11:12:32 +0530 and do not require formal proof in Court. Specifically, it states CS (COMM.) No.197/2019 Page No. 12 of 21 (Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others) that if parties to a legal proceeding agree on a fact, either orally at the hearing or in writing before the hearing, that fact does not need to be formally proven. The Court, however, retains the discretion to require such admitted facts to be proven, if it deems necessary.
10.3 For sake of convenience, section 53 of The Bhartiya Sakshya Adhiniyam, 2023 is extracted herein below for ready reference:-
53. Facts admitted need not be proved.-No fact needs to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."
10.4 In the case in hand, defendants no.1 and 2 are borrowers, who approached the plaintiff bank for availing home loan facility of ₹ 11 lakhs for purchasing an under construction residential flat i.e. the subject property which was being developed and promoted by defendant no.3. Pursuant to the request of borrowers, plaintiff sanctioned an amount of Rs.11,00,000/- to them vide Sanction Letter dated 04.01.2014 (Ex.PW1/3). The said defendants executed Term Loan Agreement dated 08.01.2014 (Ex.PW1/4) in favour of plaintiff bank. As per Schedule-I (Repayment Schedule) of Ex.PW1/4, the Raj loan was repayable by the borrowers in 120 months (including an Kumar Tripathi eighteen months holiday) through 102 monthly installments of Digitally signed ₹16,200/- @ 10.25% (floating interest) per annum with penal by Raj Kumar Tripathi Date:
interest @ 2% on defaults.
2025.07.19 11:12:40 +0530 CS (COMM.) No.197/2019 Page No. 13 of 21 (Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others) 10.5 The borrowers (defendants no.1 & 2) signed and executed the documents, Ex.PW1/5 to Ex.PW1/11 in favour of plaintiff. Plaintiff has pleaded that despite execution of said documents and repeated opportunities, defendants no.1 and 2 failed to adhere to the repayment schedule and committed defaults in repayment of loan. As on 25.04.2019, an amount of ₹6,16,166.36 is due and payable by defendants to plaintiff. 10.6 The case of plaintiff as well as deposition of PW1 is based on documentary evidence. The documents relied upon by PW1 in his affidavit of evidence, Ex.PW1/A i.e. Term Loan Agreement (Ex.PW1/4), sanction of loan amount vide Sanction Letter (Ex.PW1/3), disbursement of loan and other documents i.e. Ex.PW1/5 to Ex.PW1/11 have not been disputed and denied by defendant no.1. The testimony of PW1 has gone unrebutted and unchallenged as defendant no.1 despite PW1's lengthy cross-
examination could not elicit any positive response in her favour and falsify the plaintiff's claim. Thus, the testimony of PW1 remained unimpeached. In view of the aforesaid reasons, there is no reason to doubt the claim of plaintiff as made in the present suit.
10.7 Defendant no.1 in her cross-examination recorded on 16.04.2025 has admitted that bank has already disbursed a sum of Rs.8,36,739/- to defendant no.3 on her behalf. She has further admitted that as per final demand letter received by her from Raj defendant no.3, she is liable to pay a sum of Rs.4,09,743/- to Kumar Tripathi defendant no.3. She has also admitted that she had applied for Digitally signed by Raj Kumar housing loan credit facility amounting to Rs.11,00,000/- only Tripathi Date: from the plaintiff bank.
2025.07.19 11:12:47 +0530 10.8 DW1 has relied upon the documents, Ex.PW1/1 CS (COMM.) No.197/2019 Page No. 14 of 21 (Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others) (colly.) i.e. copy of Reminder-1 Letter dated 10.01.2017, Demand Letter, Possession Letter and Demand for payment of additional compensation letter, all dated 04.01.2016. Vide Possession Intimation Letter of subject property dated 04.01.2016, the builder has informed the defendant no.1 that the flat booked by her is ready for possession. She was requested to submit the documents as mentioned in the said letter for issuance of NOC, so that action for timely handing over of her flat is undertaken by the builder. Thus, from the contents of the aforesaid letter, it is seen that construction of flat is complete and same has already been offered for possession to defendant no.1 and she has been asked to submit the required documents for issuance of NOC in her favour.
10.9 In para no.22 of her written statement, defendant no.1 has admitted that the contents of para no.13 of the plaint is correct. She has contended that defendant no.3 is also liable to pay the amount disbursed by plaintiff bank to it at the request of defendants no.1 and 2 as the said defendant has failed to handover and deliver the flat as promised to them and also in terms of Tripartite Agreement dated 08.03.2014. She claims that defendant no.3 is equally jointly and severally liable to pay for the defaults. She has placed reliance upon Clause-3 of the Tripartite Agreement dated 08.03.2014. For ease of convenience, Clause-3 of Tripartite Agreement is reproduced hereunder for ready reference:-
Raj "3) That in the event of the Borrower and or Builder Kumar failing to complete the sub-lease/sale transaction and Tripathi registration thereof as per the agreement between the Digitally signed Builder/land Owner and Borrower, the Builder/Land by Raj Kumar Tripathi Owner undertakes and agreed to return all the Date: 2025.07.19 11:12:54 +0530 moneys received by him, in connection with the CS (COMM.) No.197/2019 Page No. 15 of 21 (Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others) amount disbursed by the Bank to Borrower for purchase of the flat in question with interest to Bank."
10.10 Ex.PW1/12-B is the Allotment-cum-Flat Buyer Agreement executed between defendant no.3 and defendant no.1 on 30.05.2011. Para no.19 (a) of the said agreement reads as under:-
"19(a) That the Developer shall complete the development/construction of the flat within 30 months from the date of starting of excavation/signing of agreement which may vary for ± 6 months. The completion date is subject to force majeure conditions. No claim by way of damages/compensation shall lie against the Developer in case of delay in handing over the possession on account of the force majeure condition and the Developer shall be entitled to a reasonable extension of time for the delivery of possession of the flat to the Allottee."
10.11 In the instant case, construction of the flat is already complete. Due to non-payment of dues and submission of requisite documents by defendant no.1, the subject property has not been handed over to her. On 12.02.2024, this Court was informed by counsel for defendant no.1 that in the light of judgment passed by Hon'ble Supreme Court, the projects of Amrapali i.e. defendant no.3 have been taken over by NBCC and receiver has also been appointed. Thus, in the given facts and circumstances of the case and as the possession of the flat has already been offered to defendant no.1, subject to fulfillment of Raj Kumar formalities and payment of balance dues, the liability for payment Tripathi of dues of plaintiff bank cannot be fastened upon defendant no.3.
Digitally signed by Raj KumarTripathi Defendant no.3 is held not entitled to clear the dues of plaintiff Date: 2025.07.19 11:13:01 +0530 bank as defendants no.1 and 2 themselves are defaulters and they have failed to complete the formalities and make requisite CS (COMM.) No.197/2019 Page No. 16 of 21 (Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others) payment in terms of documents, Ex.DW1/2 (colly.). 10.12 Admittedly, an amount of Rs.8,36,739/- out of total sanctioned amount of Rs.11,00,000/- has already been disbursed to defendant no.3 on the request of defendants no.1 and 2. Only an amount of Rs.2,63,261/- remains to be disbursed by plaintiff bank. Defendant no.1 in the course of hearing in the matter has contended that in case the plaintiff bank releases the balance payment, she could deposit the balance amount of Rs.4,09,743/- with defendant no.3 and get possession of the flat. It is matter of fact that out of total demanded amount of Rs.4,09,743/-, plaintiff is only liable to release an amount of Rs.2,63,261/-. 10.13 On specific query put to counsel for defendant no.1 that in case this Court directs the plaintiff bank to release the balance sanctioned amount of Rs.2,63,261/-, whether, defendant was ready to clear the dues of defendant no.3 and complete the necessary formalities by submitting the requisite documents for taking over the possession of the flat, the counsel for defendant no.1, on her instructions, who was physically present in the Court replied in negative. He submitted that this Court should decide the case on merits and defendant no.1 will deal with defendant no.3 at her own level separately. Thus, it is clear that it is defendant no.1 herself, who is not willing to fulfill the formalities and clear the dues of defendant no.1 to get possession of the subject property.
10.14 On the aspect of declaration of defendants' account Raj Kumar as NPA by the plaintiff bank, vide order dated 23.04.2024, this Tripathi Court in terms of order dated 18.04.2022 passed by Hon'ble Digitally signed by Raj Kumar Tripathi Supreme Court in WP(C) No.940/2017 in Bikram Chatterji & Date:
2025.07.19 11:13:08 Others (supra) directed defendant no.1 to approach the plaintiff +0530 CS (COMM.) No.197/2019 Page No. 17 of 21 (Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others) bank and submit the required documents in view of operational guidelines issued by the bank for regularization of her account and release of further payment as per rules. 10.15 On 08.07.2024, the Branch Manager of plaintiff bank informed this Court that defendant no.1 has not complied with the directions contained in order dated 23.04.2024. She sent an e-
mail to the bank informing that she was unemployed. Thus, due to non-fulfillment of necessary formalities in compliance of directions of Hon'ble Supreme Court, the loan account of defendant could not be regularized and no further payment could be released to her.
10.16 It is admitted case of defendant no.1 that the loan amounting to Rs.8,36,739/- out of total sanctioned amount of Rs.11,00,000/- has already been disbursed to defendant no.3 on the request of defendants no.1 and 2. She has failed to produce any documentary evidence such as bank statements, payment receipts, acknowledgment from the bank or any correspondence to substantiate that the payments against the dues of plaintiff bank have been made by defendants. In her cross-examination recorded on 16.04.2025, DW1 has admitted that she was unaware as to whether the payment of Rs.6.87 lakhs was made towards the principal or the interest. She was confronted with her own document i.e. Ex.DW1/1 (copy of disbursed amount relied upon by her). She could not explain the calculations made by her in the said documents. She was also confronted with the documents, Raj Ex.PW1/3 to Ex.PW1/6 bearing her signature, which she admitted Kumar to be correct.
Tripathi Digitally signed 10.17 In view of admission made by defendant no.1 by Raj Kumar Tripathi Date: 2025.07.19 regarding existence and execution of Loan Agreement, receipt of 11:13:16 +0530 CS (COMM.) No.197/2019 Page No. 18 of 21 (Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others) disbursal of loan amount, obligation to repay the same in EMIs and non-repayment of loan amount by defendants, plaintiff has succeeded to prove its case against the defendants no.1 and 2. No further proof to fasten liability upon defendants no.1 and 2 for making repayment of dues of plaintiff bank is required. Defendants no.1 and 2 being the borrowers and having availed the loan facility from plaintiff bank are jointly and severally liable and bound to clear the dues of plaintiff bank. 10.18 Plaintiff has claimed pendente lite and future interest @ 9.65% per annum on the outstanding amount of Rs.6,16,166/- along with penal interest @ 2% till realization of the amount. 10.19 For ease of convenience, section 34 of The Code of Civil Procedure, 1908 which deals with interest is reproduced hereunder for ready reference:-
"34. Interest.- (1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent, per annum, as the Court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.
Provided that where the liability in relation to the sum so adjudged had arisen out Raj of a commercial transaction, the rate of such Kumar further interest may exceed six per cent, per Tripathi annum, but shall not exceed the contractual rate Digitally signed of interest or where there is no contractual rate, by Raj Kumar Tripathi the rate at which moneys are lent or advanced Date: 2025.07.19 by nationalized banks in relation to commercial 11:13:23 +0530 transactions......".
10.20 In Central Bank of India v. Ravindra & Others AIR CS (COMM.) No.197/2019 Page No. 19 of 21 (Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others) 2001 SC 3095, it was held by Hon'ble Supreme Court that award of interest u/s 34 CPC is discretionary. The discretion to award interest should be exercised judiciously and not arbitrarily. The purpose of interest is to compensate the plaintiff for the delay in receiving payment and not to penalize the defendants. Hon'ble Apex Court also emphasised that the rate of interest should be reasonable reflecting the prevailing commercial rates and market condition.
10.21 Applying the ratio of the law laid down by Hon'ble Supreme Court in a catena of judgments regarding grant of interest to the facts of the present case and as the defendants have withheld the legitimate dues of plaintiff without any cogent and sufficient reason, this Court is of the view that interest of justice shall be subserved, if plaintiff is granted interest @ 7.35 % per annum.
10.22 In view of foregoing reasons and discussion, this Court is of the considered view that plaintiff has succeeded to discharge the onus to prove the issue. Accordingly, issue no.(i) is decided in favour of plaintiff and against defendants no.1 and 2.
Relief 11.1 In view of findings returned on issue no.(i), suit of plaintiff is decreed with cost.
11.2 Defendants no.1 and 2 are jointly and severally Raj directed to pay an amount of Rs.6,16,166/- to plaintiff bank. Kumar Tripathi They are further directed to pay pendente lite and future interest Digitally signed by Raj Kumar @ 7.35% per annum on the principal outstanding amount from Tripathi Date: 2025.07.19 the date of filing of the suit i.e. 23.07.2019 till actual payment. 11:13:29 +0530 12.1 Decree Sheet be prepared accordingly.
CS (COMM.) No.197/2019 Page No. 20 of 21(Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others) 13.1 File be consigned to Record Room.
Announced in the open court Raj
Digitally signed
by Raj Kumar
Tripathi
Dated: 19.07.2025 Kumar Date:
Tripathi 2025.07.19
11:13:40 +0530
(RAJ KUMAR TRIPATHI)
District Judge (Commercial Court)-08
South-East District, Saket Courts, New Delhi.
CS (COMM.) No.197/2019 Page No. 21 of 21(Union Bank of India vs. Lalita Sarkar @ Lalita Hingorani & Others)