Delhi District Court
Punjab And Sind Bank vs Rajesh Kumar on 30 September, 2024
IN THE COURT OF MS. KIRAN BANSAL:
DISTRICT JUDGE (COMMERCIAL COURT-02
SHAHDARA DISTRICT
KARKARDOOMA COURTS : DELHI
Civil Suit (Comm) No. 619/2022
Original memo of parties as filed along with the plaint.
Punjab & Sind Bank
having its Head Office at
Bank House - 21,
Rajendra Place,
New Delhi - 20.
Inter alia having its branch office at:
Alpha, Greater Noida,
Kasons Tower, Alpha - 1, First Floor,
Greater Noida - 201306
Contact / Mobile No. 9910700028
Through its authorized representative
Ms. Upma Dureja (Chief Manager) ........... Plaintiff
Versus
1. Mr. Rajesh Kumar
S/o Mr. Barumal Goyal
(Borrower)
R/o House No.250, Block - H,
Old Seemapuri, Delhi - 110095
Mobile No. 9582971900, 9971887558
EMAIL : [email protected]
[email protected]
[email protected]
2. Saroj Goyal
D/o Mr. Jagdish Ram, (Guarantor)
R/o House No.250, Block - H,
Old Seemapuri, Delhi - 110095
........... Defendants
Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 1 of 37
Amended memo of parties as filed along with the application under
Order I Rule 10 CPC.
Punjab & Sind Bank
having its Head Office at
Bank House - 21,
Rajendra Place,
New Delhi - 20.
Inter alia having its branch office at:
Alpha, Greater Noida,
Kasons Tower, Alpha - 1, First Floor,
Greater Noida - 201306
Contact / Mobile No. 9910700028
Through its authorized representative
Ms. Upma Dureja (Chief Manager) ........... Plaintiff
Versus
1. Mr. Rajesh Kumar
S/o Mr. Barumal Goyal
(Borrower)
R/o House No.250, Block - H,
Old Seemapuri, Delhi - 110095
Mobile No. 9582971900, 9971887558
EMAIL : [email protected]
[email protected]
[email protected]
2. Saroj Goyal
D/o Mr. Jagdish Ram, (Guarantor)
R/o House No.250, Block - H,
Old Seemapuri, Delhi - 110095
3. M/s. Mangalya
Buildtech Pvt. Ltd.
(Builder)
Having its registered office at
3520, Kucha Lalman,
Delhi Gate, New Delhi - 110002,
through its Directors/authorized signatory
Also at:
M/s. Mangalya Buildtech Pvt. Ltd.
Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 2 of 37
Having its registered office at
B-07, Ashoka Niketan,
Manak Vihar,
New Delhi - 110092,
Through its Directors/Authorized Signatory
M/s. Mangalya Buildtech Pvt. Ltd.
Having its registered office at
D-113, Ground Floor,
Sector-63,
Noida, G.B. Nagar,
Through its Directors/Authorized Signatory
M/s. Mangalya Buildtech Pvt. Ltd.
Having its corporate office at
H-97, 2nd Floor,
Sri Sai House, Sector-63,
Noida, G.B. Nagar,
Through its Directors/Authorized Signatory
........... Defendants
Date of institution : 07.11.2022
Date of reserving judgment : 16.07.2024
Date of judgment : 30.09.2024
JUDGMENT
1.1 The plaintiff had filed the present suit for recovery for an amount of Rs.16,76,418.93/- along with pendentelite and future interest, initially, against two defendants i.e. Mr. Rajesh Kumar (Borrower) and Ms. Saroj Goyal, (Guarantor) stating that plaintiff is a body incorporated under the provisions of the Banking Companies (Acquisition and transfer of Undertakings) Act, 1980, having a branch office at Greater Noida. The suit has been filed through Ms. Upma Dureja, Chief Manager of the Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 3 of 37 plaintiff bank who is stated to be duly authorized representative of the plaintiff bank and also well conversant with the facts of the case, on the basis of information received and record maintained by the plaintiff bank during the ordinary of business.
1.2 It is stated that defendants had approached the plaintiff bank vide housing loan application dated 04.10.2016 for grant of a loan against property for Rs.28 lakhs and the defendant had agreed to abide by the standard terms and conditions applicable at the time of execution of the loan application. The defendant had further agreed to repay the loan in 300 equated monthly installments and thus, a loan of Rs.28 lakhs was sanctioned on 21.10.2016 and an amount of Rs.18,26,141/-was disbursed in the account of the builder M/s. Mangalya Buildtech Pvt. Ltd. The documents in this regard was executed by the defendant and the loan was granted against property bearing no. Flat No.1903, 19th Floor, Tower-G, Super Area 1025 sq. ft. Mangalya Ophira, Plot No. 16f, Sector - 1, Greater Noida West, U.P. The rate of interest was agreed @ 9.55% and an account bearing no.09701200000503 was opened. Following loan documents were executed:
(i) Agreement of Housing Loan dated 21.10.2016;
(ii) Irrevocable General Power of Attorney dated 21.10.2016;
(iii) Form No.14 (R) dated 21.10.2016; (iv) Form No.103/291/412 dated 21.10.2016; (v) Deed of Negative Lien dated 21.10.2016; (vi) Indemnity Bond dated 21.10.2016;
(vii) Tripartite Agreement dated 21.10.2016;
(viii) Affidavit dated 21.10.2016 Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 4 of 37 1.3 It is stated that in view of aforesaid loan security documents executed by the defendants, they availed the said credit facility, however, defendant no.1 has failed to adhere to the financial discipline towards repayment of the principal and the interest etc. and the defendant no.1 paid only few installments.
Reminders were sent to the defendant. Request was also made by the officials of the bank to the defendants, but, the defendant no.1 failed to honor his commitment and did not regularize his loan account despite various reminders and opportunities.
1.4 It is stated that defendant has paid 41 equated monthly installments and thus, has paid an amount of Rs.10,39,434.07/- and has defaulted in repayment of Rs.16,76,418.93 as on 06.07.2022. Due to the default committed, the bank recalled the loan and account was classified as NPA on 31.03.2022. Also on 04.04.2022, a notice under Section 13(2) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Sarfaesi Act, 2002) requesting the defendants to pay Rs.13,37,675.29/- was issued. But, despite issuance of the notice, the defendant neither cared to reply to the notice, nor paid the outstanding amount.
1.5 It is stated that as per account maintained by the plaintiff, the defendant is liable to pay an amount of Rs.16,76,418.93/- as principal, interest, penal interest and other dues as on 06.07.2022 and further interest from 07.07.2022 till the date of actual payment of the outstanding amount. The pre institution mediation was instituted on 06.09.2022 and the defendant had appeared on 19.01.2022 and 01.10.2022, but, the matter was not settled and non starter report dated 01.10.2022 Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 5 of 37 was issued. Though, in para no. 11 of the plaint, plaintiff has stated that pre mediation dates were 19.01.2022 and 01.10.2022, but, in para 12 (vi), the dates mentioned on which the defendant did not appear are 19.09.2022 and 01.10.2022. The Non Starter Report also reveals that the actual date fixed during pre institution mediation were 19.09.2022 and 01.10.2022 and it seems that the date 19.01.2022 in para no.11 of the original plaint has been wrongly mentioned being a typographical error. Though, in the amended plaint, the same has been correctly mentioned. It is also pertinent to mention here that an amendment application under Order VI Rule 17 CPC was taken out from drop box on 27.01.2023 which was allowed vide order dated 01.02.2023.
1.6 In this amendment application, no such prayer was made to correct the typographical error in Para-11 of the plaint regarding the wrong mentioning of the date. But, still in the amended plaint in Para-11, the date has been stated to be 19.09.2022. The change of date in the amended plaint has been unauthorizedly done by the plaintiff without seeking specific permission from the court and even without bringing the said fact to the knowledge of the court. The plaintiff, certainly, had realized that there was a typographical error in Para-11 of the plaint. The plaintiff should have at least informed the court before making the relevant correction in the amended plaint. However, in view of the fact that in Para-12(vi), the date has been correctly mentioned, this issue is not discussed any further.
1.7 It is stated that defendant are residing in jurisdiction of the present court and the subject matter of the recovery of debt Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 6 of 37 due falls within the jurisdiction of this court, therefore, the present court has jurisdiction to try and decide the present suit. Prayer has been made for a decree for an amount of Rs.16,76,418.93/- along with 18% from the date of default till its realisation along with cost of the suit. Plaint was accompanied with the affidavit of AR of the plaintiff Ms. Upma Dureja as well as the statement of truth.
1.8 The suit was received in the court on 07.11.2022. Thereafter, it was observed that the plaintiff has not bifurcated the interest as per Order VII Rule 2A CPC amended by Commercial Courts Act, 2015. An amendment application was filed on behalf of plaintiff which was withdrawn on 11.01.2023. Thereafter, another application was filed on behalf of plaintiff dated 12.01.2023 which was taken out from the drop box on 27.01.2023 in which a new para was inserted giving the bifurcation of the principal and the interest, as well as the details of the interest. The amendment application under Order VI Rule 17 CPC was allowed vide order dated 01.02.2023 and amended plaint was taken on record.
2. Summons were not issued to the defendant, but, the defendant had appeared in the court on 01.02.2023 and has stated he has received the intimation about the case by E-court notification. The defendant no. 1 further submitted that he had already surrendered the property to the builder i.e. Manglaya Buildtech Pvt. Ltd. and the EMI has been paid by builder and not by him. He also submitted that he had settlement letter pertaining to the settlement with the builder vide which the builder has undertaken to make the payment of the outstanding amount to the bank and he had approached the bank with the said letter, but, the Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 7 of 37 official of bank did not respond and did not entertain him. Copy of the settlement letter was supplied to the ld. counsel for the plaintiff who sought time to seek instructions from the plaintiff bank. It was also observed that though, the plaintiff had relied upon the tripartite agreement, the builder was not impleaded as a party and the plaintiff was directed to implead the builder as a party for just adjudication of the case vide order dated 01.02.2023. Thereafter, an application under Order I Rule 10 CPC dated 13.02.2023 was filed along with amended memo of parties for impleadment of the builder M/s. Mangalya Buildtech Pvt. Ltd. as defendant no.3. This application was allowed vide order dated 12.04.2023 and M/s. Mangalya Buildtech Pvt. Ltd. was impleaded as defendant no.3 and the amended memo of parties filed along with application was taken on record.
3. Summons were thereafter directed to be issued to all the defendants. Thereafter, defendant no. 1 appeared for himself and for his wife on 09.05.2023 on his own, despite the fact that the plaintiff had not taken steps for issuance of the summons. Copy of the plaint and entire set of paperbook was supplied to defendant no. 1 in the court and plaintiff was directed to take steps for service of defendant no. 3.
4. Summons issued to the defendant no. 3 thereafter at their first and second address were received back unserved with report "no such person" and "left without address". As per postal receipt and tracking report, the defendant no. 3 was served at his 4th address through speed post and registered post on 05.06.2023 and 07.06.2023. None appeared for defendant no. 3 despite service, nor they filed WS within the stipulated period of 30 days or even within Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 8 of 37 the extended period of 120 days. Hence, defendant no. 3 was proceeded ex parte vide order dated 16.09.2023.
5. Joint written statement has been filed by the defendant no. 1 and 2 wherein they stated that the allegations levelled by the plaintiff in the present suit are completely false and frivolous and the same are merely made with the intention to harass the defendants. Defendants have stated that present suit is not maintainable as they have got flat in question cancelled from defendant no.3 through letter dated 28.06.2022 which was duly accepted by defendant no.3 on 29.06.2022. The defendants have further stated that the fact of cancellation of flat was duly intimated to the plaintiff.
5.1 It is stated that in terms of clause 11 of tripartite agreement dated 21.10.2016, the defendant no.3 is liable to pay the suit amount to the plaintiff. It is further stated that plaintiff bank despite knowing the fact that defendant no. 3 has accepted the cancellation of flat in question from defendant no.1 and 2, still chose to file the present suit against defendant no.1 and 2. Defendants have stated that plaintiff has abused the process of law and the present suit is bad for mis joinder of answering defendants, therefore, the same is liable to be rejected qua the answering defendants. Defendants have further stated that the suit is without any cause of action, thus, the same is liable to be rejected under Order 7 Rule 11 read with Section 13 (A) CPC.
5.2 It is stated that loan in question was sanctioned in the name of defendants, but, all the EMIs were to be actually paid by defendant no.3, therefore, Tripartite Agreement dated Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 9 of 37 21.10.2016 was executed between the parties and as per clause (11) it is was agreed that in case of cancellation by the defendants qua the flat in question, defendant no. 3 will return the loan amount to the plaintiff.
5.3 Defendants have denied that they have never paid any EMI to the plaintiff bank. Defendants also denied the receiving of notice dated 04.04.2022 issued by the bank to them for discharging the alleged liability of Rs.18,26,141/-. It is stated that defendants have no liability to pay any amount to the plaintiff bank. Remaining material averments has been denied by the defendants and prayer has been made for dismissal of the suit with cost.
6. Replication to the joint written statement of defendant no. 1 and 2 was also filed wherein it is stated that the present suit has been initiated to recover the outstanding loan amount as per terms and conditions of loan agreement and the tripartite agreement executed between the parties. Plaintiff bank denied the existence of any communication or letter regarding cancellation of said flat from defendant no.3 and emphasised that it was never received, nor any evidence was provided by defendants to supports its authenticity. Plaintiff bank has stated that the contention of misjoinder by the defendants is unfounded as plaintiff bank included all necessary parties to suit as per the facts and circumstances. Plaintiff bank further stated that keeping in view the request of defendant, plaintiff bank disbursed an amount of Rs.18,261,41/- in the account of builder M/s. Mangalya Buildtech Pvt. Ltd. and defendants agreed to repay the same in 300 equated monthly installments. Remaining Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 10 of 37 averments of the WS has been denied and plaintiff has reiterated the facts as stated in the plaint.
7. During admission/denial, the plaintiff has not admitted the existence and contents of any document of the defendants and has denied the document filed on behalf of defendant no. 1 and 2 i.e. Copy of cancellation letter dated 28.06.2022. However, on the otherhand defendant no. 1 and 2 have admitted the contents, execution, custody of the documents relied upon by the plaintiff which are as under:
• Copy of housing loan application and sanction letter as Ex.D1;
• Copies of all loan security documents dated 21.10.2016 as Ex.D2;
• Copies of statement of account as Ex.D3; • Certified copy of non starter report dated 01.10.2022 as Ex.D4;
8. However, defendant no. 1 and 2 have denied the contents, execution, custody of the documents relied upon by the plaintiff which are as under:
• Copy of Power of Attorney in favour of authorised representative of the plaintiff bank is Ex.D5; • Copy of notice with postal receipts is Ex.D6.
9. Thereafter, on the basis of pleadings of the parties, following issues are settled for consideration:
(i). Whether the plaintiff is entitled for money decree? If so, to what amount? OPP.
(ii). Whether the plaintiff is entitled to any interest? If so, at Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 11 of 37 what rate and for which period? OPP.
(iii). Relief.
10. In order to prove its case, the plaintiff has examined Ms. Upma Dureja, Chief Manager/Authorized Representative as PW-1 who tendered her evidence by way of affidavit PW1/A and relied upon the following documents:
(i) Copy of Power of Attorney in favour of Ms. Upma Dureja dated 5.07.2018 as Ex.PW1/1 (OSR);
(ii) Loan Application form as Ex.PW1/2; (iii) Sanction Letter as Ex.PW1/3; (iv) Form 14 (R) dated 21.10.2016 as Ex.PW1/4; (v) Form No. 103/291/412 dated 21.10.2016 as Ex.PW1/5; (vi) Undertaking dated 21.10.2016 as Ex.PW1/6;
(vii) Form No. 256 (RR) dated 21.10.2016 as Ex.PW1/7;
(viii) Revival Letter dated 18.10.2019 as Ex.PW1/8;
(ix) Form No. 255 (RR) dated 21.10.2016 as Ex.PW1/9;
(x) Deed of Negative lien dated 21.10.2016 as Ex.PW1/10;
(xi) Agreement of Housing Loan dated 21.10.2016 as Ex.PW1/11 (colly);
(xii) Irrevocable General Power of Attorney dated 21.10.2016 as Ex.PW1/12;
(xiii) Tripartite Agreement dated 21.10.2016 as Ex.PW1/13;
(xiv) Indemnity Board dated 21.10.2016 as Ex.PW1/14;
(xv) Affidavit of defendant no.1 dated 21.10.2016 as Ex.PW1/15;
(xvi) Letter dated 21.10.2016 executed by defendant no.1 as Ex.PW1/16;
(xvii) Copy of Notice dated 08.11.2021 as Ex.PW1/17 and original postal receipts as Ex.PW1/17A; (xviii)Copy of Notice under Section 13(2) of Securitization and Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 12 of 37 Reconstruction of Financial and Enforcement of Security Interest Act, 2002 dated 04.04.2022 as Ex.PW1/18 and original postal receipts as Ex.PW1/18A; (xix) Certified Copy of statement of accounts as Ex.PW1/19; (xx) Non Starter Report dated 18.10.2022 as Ex.PW1/20; (xxi) Certificate under Section 2A of Banker's Book Evidence Act as Ex.PW1/21;
(xxii) Affidavit under Order XI Rule 6 (3) of Commercial Courts, Commercial Division and Commercial Appellate Division of High Court Act, 2015 as Ex.PW1/22.
She was duly cross examined by ld. counsel for defendant no. 1 and 2. Thereafter, PE was closed.
11. In rebuttal, the defendant Sh. Rajesh Kumar has examined himself as DW-1 who tendered his evidence by way of affidavit Ex.DW1/1. This witness was cross examined by ld. counsel for the plaintiff. Thereafter, DE was closed on the statement of defendant Sh. Rajesh Kumar.
12. The court has gone through the testimony of witnesses and perused the material placed on record. The court has also gone through the law on the point and duly considered the arguments advanced by counsel for both the parties.
13. Ld. Counsel for plaintiff has relied upon the following judgments:
(i) Sandeep Kumar vs Housing Development Finance, RFA(OS) 50/2015, decided on 25 August, 2015 passed by Hon'ble High Court at Delhi;
Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 13 of 37
14. Ld. Counsel for defendant has relied upon the following judgments:
(i) Mohit Seth & Anr. vs Sunworld Residency Pvt. Ltd., 2021 SCC Online NCDRC 338, decided on 22 October, 2021 passed by the National Consumer Disputes Redressal Commission.
(ii) ICICI Bank Limited vs Asif Ahmed in CS (Comm) No.:
2469/2021 decided on 1 September, 2023 passed before the Court of Sh. Umed Singh Grewal, District Judge Commercial Court-05, Central District, Tis Hazari, Delhi;
15. The findings on various issues are as under:
Issue no. (i). Whether the plaintiff is entitled for money decree?
If so, to what amount? OPP.
16. The onus of proving this issue was upon the plaintiff. The plaintiff has examined one witness PW-1 Ms. Upma Dureja, Chief Manager at plaintiff's bank who duly proved on record the Loan documents on the basis of which it is clear that the loan was sanctioned. The sanctioning of loan is not even disputed by the contesting defendants.
17. In the present case, one amendment application under Order VI Rule 17 CPC and one application under Order I Rule 10 CPC was allowed on 01.02.2023 and 12.04.2023 respectively and amended plaint and amended memo of parties were taken on record. During cross of PW-1, PW-1 denied her signatures as well as stamp of the bank on the replication, on the application under Order I Rule 10 CPC, amended memo of parties and even on the application under Order VI Rule 17 CPC. She also admitted that her signatures were not there on the photocopy of documents filed along with the plaint. The relevant Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 14 of 37 cross-examination of PW-1 in this respect is reproduced hereinbelow:
"Copies of the document filed along-with the plaint Ex.PW1/1A, PW1/2B, PW1/3C, PW1/4D, PW1/5E, PW1/6F, PW1/7G, PW1/8H, PW1/9I, PW1/10J, PW1/11K, PW1/12L, PW1/13M, PW1/14N, PW1/15O, PW1/16P, PW1/17Q, PW1/17R, PW1/19S only bear the stamp of the Bank and does not bear my signature. Document Ex.PW1/20 does not bear the stamp of the Bank or my signature. The replication filed by the plaintiff on the record bears the stamp of the Bank along-with the signature but I have never got such stamp made and this stamp and the signature do not pertain to me.
Signature on the stamp are similar to my signatures. Copy of replication is Ex.PW1/D1. The same is my reply to the affidavit annexed along-with the application. The copy of affidavit is Ex.PW1/D2. My signatures have been copied on the stamp but I have never got any such stamp made bearing my signature as appearing in the amended memo of parties. The same is Ex.PW1/D3. My signatures have been copied on the stamp but I have never got any such stamp made bearing my signature as appearing in the application under Order I Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 15 of 37 Rule 10 of CPC. The same is Ex.PW1/D4.
My signatures have been copied on the stamp but I have never got any such stamp made bearing my signature as appearing in the application under Order VI Rule 17 of CPC. The same is Ex.PW1/D5. My signatures have been copied on the stamp but I have never got any such stamp made bearing my signature as appearing in the affidavit under Order 11 Rule 6(3) of CPC. The same is Ex.PW1/D6.
Court Question: Can you please explain how the stamp of the Bank along-with your signatures are being used on the documents which are filed in the Court record without your permission and knowledge ?
Answer: I am not aware of the same and I intend to get FIR registered in this respect."
18. The details of the documents on which the Chief Manager, Ms. Upma Dureja has denied her signatures and stamp are as below:
Sr.No. Detail of the document Exh. No.
(i) Index along with replication PW1/D1
(ii) Affidavit filed along with PW1/D2
replication and affidavit of
admission/denial of documents of
defendant
(iii) Amended memo of parties along PW1/D3
with affidavit in support of
application under Order I Rule 10
CPC
Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 16 of 37
(iv) Index along with application under PW1/D4
Order I Rule 10 CPC for
impleading the builder M/s.
Mangalya Buildtech Pvt. Ltd., as
defendant no.3
(v) Index along with application under PW1/D5
Order VI Rule 17 CPC taken off
from drop box on 27.01.2023 along
with accompanying affidavit
(vi) Affidavit under Order XI Rule 6 (3) PW1/D6
CPC.
19. It is pertinent to mention that perusal of the file reveals that two affidavits under Order XI Rule 6 (3) of Commercial Courts, Commercial Division and Commercial Appellate Division of High Court Act, 2015 are available on record. One is attested on 17.12.2022 and seems to have filed along with amended plaint, as the affidavit annexed with the amended plaint was also attested on 17.12.2022. Even the statement of truth and supporting affidavit filed along with amended plaint is attested on 17.12.2022. This affidavit under Order XI Rule 6 (3) of Commercial Courts, Commercial Division and Commercial Appellate Division of High Court Act, 2015 is bearing the original signatures as well as stamp of Ms. Upma Dureja, Chief Manager of the plaintiff bank. But, there is another affidavit under Order XI Rule 6 (3) of Commercial Courts, Commercial Division and Commercial Appellate Division of High Court Act, 2015 which is attested on 07.11.2022, the same is also Ex.PW1/D6. On this affidavit, the Chief Manager / AR of plaintiff bank has denied her stamp and signatures. How this affidavit under Order XI Rule 6 (3) of Commercial Courts, Commercial Division and Commercial Appellate Division of High Court Act, 2015, Ex.PW1/D6 which is allegedly attested on 07.11.2022, came on record is not clear from the ordersheet.
Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 17 of 37
20. One amendment application under Order VI Rule 17 CPC along with accompanying affidavit attested on 17.12.2022 was also filed by the plaintiff. However, the same was withdrawn due to typographical errors with liberty to file fresh one on 11.01.2022 and thereafter another application under Order VI Rule 17 CPC was filed which was allowed vide order dated 01.02.2023. Though, fresh application under Order VI Rule 17 CPC was filed, but, the amended plaint, affidavit, statement of truth etc. are same which were filed along with earlier under Order VI Rule 17 CPC (withdrawn on 11.01.2022) and no fresh amended plaint etc. was filed.
21. As the plaintiff has denied her signatures as well as stamp on the above said documents Ex.PW1/D1 to Ex.PW1/D6, it is clear that these documents/ applications/ affidavits etc. are not filed under the signatures of the AR/Branch Manager of plaintiff bank. PW-1 has categorically stated that she has never got any such stamp made bearing her signatures (facsimile) as appearing on the said replication/ application/ affidavits etc. She also stated that she intended to get the FIR registered in this respect. This cross examination of PW-1 was recorded on 12.03.2024. However, on the next date of hearing, fresh vakalatnama was filed on behalf of plaintiff and along with fresh vakalatnama, a clarification regarding the proceedings was filed. The complete contents of the clarification being relevant is reproduced hereinbelow:
Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 18 of 37 "PUNJAB & SIND BANK (A GOVT OF INDIA UNDERTAKING) BRANCH OFFICE: GREATER NOIDA ALPHA (0970) KAISONS TOWER, FF COMMERCIAL BELT ALPHA-1, GREATER NOIDA-201306 PH: 0120-4199100 Email: [email protected] _____________________________________________________ IN THE HON'BLE COURT OF MS. KIRAN BANSAL, LD, DJ (COMM), SHAHDARA DISTRICT, KARKARDOOMA COURTS CS (COMM) 619/2022 IN THE MATTER OF:
PUNJAB AND SIND BANK ...PLAINTIFF
VS
RAJESH KUMAR & ORS ... DEFENDANTS
Dated: 30.03.2024
Subject: Clarifications Regarding Proceedings in Punjab & Sind Bank vs. Rajesh Kumar & Ors. (Case No. CS (COMM) 619/2022 held on 12.03.2024 Respected Madam,
1. Upma Dureja, Chief Manager of Punjab & Sind Bank, Alpha-1 Branch Kasons Tower, UP, and Authorized Representative of the Bank write this letter to your Hon'ble court to provide necessary explanations regarding certain occurrences during the proceedings of the case Punjab & Sind Bank vs. Rajesh Kumar & Ors., bearing case number CS (COMM) 619/2022, held on 12.03.2024.
It is humbly submitted that:
1. That during my cross-examination on 12.04.2004, discrepancies were noted and were purported by the Counsel of the Defendant No.1 in a few pages of some Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 19 of 37 documents filed by the Counsel of the Bank. That immediately after the incident the Concerned Law firm, The Chambers, Advocates and Legal Consultants was consulted, upon comultation with the Panel Law firm, it was confirmed that these documents were inadvertently filed, and were merely some Incorrect copies and not any documents stamped with any in-built signatures, moreover, via Email Dated 14.03.2024, we sought an explanation from the paneled Advocate regarding the discrepancies in the documents filed. In their email response dated 15.03.2024, it was explained that the errors were from a sincere mistake by the Associate of the Counsel.
2. Subsequently, a meeting was held between the Associates of the Empaneled Law firm and the Bank, where it was confirmed that there is no inbuilt signature stamp. Further discussions reiterated that the errors were unintentional and not made with any ill intent of malice.
This correspondence underscores the genuine nature of the error and reinforces our request for leniency from the Hon'ble Court in addressing this matter and further respectfully request the Hon'ble Court's permission to promptly file an amended Documents and Applications to rectify the Mistake. The matter was diligently reviewed by our panel advocates and me, affirming the genuine oversight. We assure the court of our full cooperation in rectifying the error and ensuring the accuracy of all submitted documents. Additionally, we recognize that the counsels unintentional errors do not Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 20 of 37 undermine the bank's interests. Therefore, we urge the court to consider leniency as we remain committed to a fair resolution.
3. That it is submitted that the Associate of the Chambers, Advocates and Legal Consultant, Advocate Vansh Malhotra, is just a fresh Advocate in practice. Considering his limited experience, we do not intend to take any actions against him or the Panelled Law Firm and its Advocates.
4. That further, it was informed by the Managing Partner of the Chambers, Advocates and Legal Consultants, the above-mentioned associate will no longer handle this matter. This decision has been made to ensure the seamless and diligent handling of the case moving forward. We sincerely apologize for any inconvenience caused by this change and assure the Hon'ble Court that it was made in the best interest of the proceedings.
5. That the Managing Partner of the Chambers, will now personally undertake the responsibilities previously assigned to the associate. We assure the Hon'ble Court that this transition will not disrupt the proceedings, and the Managing Partner, The Chambers, Advocates and Legal Consultants will diligently pursue the matter to its rightful conclusion.
6. That furthermore, it is stated that henceforth, our Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 21 of 37 branch shall conduct thorough due diligence and diligently consider all matters referred to the paneled law firm. Any encumbrance identified during this process shall be promptly addressed and managed in accordance with the applicable legal protocols and internal bank procedures. We are committed to upholding the highest standards of compliance and accountability in all our operations, ensuring the equitable resolution of matters under the purview of Punjab & Sind Bank.
7. That it is submitted that there has been no intention of any wrongdoing, and it is observed further that even the documents filed by the Counsels were not submitted with any malafied (sic malafide) intention.
8. That the Public Sector Banks matter, which involves the money of the taxpayers of our country, is at stake here, underscoring the importance of resolving this matter promptly and accurately to safeguard the interests of all stakeholders involved. We sincerely apologize for any inconveniences caused and assure the Hon'ble Court of our full cooperation and commitment to ensuring justice is served. Yours sincerely.
Sd/-
Ms. Upma Dureja Chief Manager Punjab & Sind Bank Alpha-1 Branch, Greater Noida, Uttar Pradesh"
Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 22 of 37
22. In this clarification, it was admitted that these documents were inadvertently filed and were incorrect copies and not the documents stamped with any in built signatures. It was also stated that in response through email, it was explained that the errors were from a sincere mistake by the associate of the counsel. It is also stated that a meeting was held between associates of the law firm and that the errors were unintentional and are not made with any ill intent or malice. A request for leniency was also made before the court. Further request was made to promptly file amended documents and applications to rectify the mistake. It was also assured to the court that errors will be rectified and a request was made to the court to consider leniency. It was also stated Advocate Sh. Vansh Malhotra is just a fresh Advocate in practice and considering his limited experience, the plaintiff does not intend to take any actions against him or the empanelled law firm or its advocates. In the last para, apology was tendered for the inconvenience caused.
23. In the above clarification, though, it was stated that in the meeting held between associates of the empaneled law firm and the bank some discussions took place wherein a decision was taken to file amended documents and corrected applications to rectify the mistake, however, no such specific prayer was made in the court nor in the clarifications there is any prayer clause seeking permission to file the corrected applications and affidavits etc. to rectify the mistake. Further, though the above said clarification was filed to cover up the issue, (i.e. filing of applications and affidavits without the signatures of Branch Manager of plaintiff bank and having only a facsimile), no specific application was filed seeking permission of court to place on record the corrected Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 23 of 37 applications/affidavits etc. Also, despite the fact that these clarifications was filed on 01.04.2024, no fresh documents/ applications/ affidavits/ memo of parties signed by the AR of plaintiff was filed on court record. Even on 23.04.2024, ld. counsel for plaintiff submitted that they have already filed the clarifications and insisted that final arguments be heard. Again clarifications was sought on 08.07.2024 in this regard, but, on 16.07.2024, again, ld. counsel for plaintiff stated that they have already furnished the clarifications in this regard and they do not wish to file anything else or file any further clarification.
24. This fact had come to the knowledge of the AR of plaintiff on 12.03.2024 during cross examination, that certain applications and affidavits were filed on court record allegedly bearing the stamp and signatures of the Chief Branch Manager of the plaintiff bank which according to PW-1 were not her signatures as she never got such a stamp having also her signatures (facsimile) made. The plaintiff has not filed on record the said applications etc. bearing the original signatures of the Manager/AR of the plaintiff bank. The above documents which clearly PW-1 has denied to be having her signatures, thus, cannot be taken into account for deciding the present case, as the same amounts to practicising fraud with the process of the courts of law/justice.
25. In the case titled as A.V. Papayya Sastry & Ors. vs. Government of A.P. & Ors. decided on 07.03.2007, Hon'ble Supreme Court of India, on the issue of fraud has observed that:
".....
Now, it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 24 of 37 order in law. Before three centuries, Chief Justice Edward Coke proclaimed;
"Fraud avoids all judicial acts, ecclesiastical or temporal".
It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings. In the leading case of Lazarus Estates Ltd. v.
Beasley, (1956) 1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR 502, Lord Denning observed:
"No judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud."
In Duchess of Kingstone, Smith's Leading Cases, 13th Edn., p.644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was 'mistaken', it might be shown that it was 'misled'. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment. It has been said; Fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent).
Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 25 of 37 Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants.
In Indian Bank v. Satyam Fibres (India) Pvt.
Ltd., (1996) 5 SCC 550 : JT 1996 (7) SC 135, referring to Lazarus Estates and Smith v. East Elloe Rural District Council, 1956 AC 336 : (1956) 1 All ER 855 : (1956) 2 WLR 888, this Court stated;
"The judiciary in India also possesses inherent power, specially under Section 151 C.P.C., to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business".
In United India Insurance Co. Ltd. v.
Rajendra Singh & Ors., (2000) 3 SCC 581 :
JT 2000 (3) SC 151, by practising fraud upon the Insurance Company, the claimant Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 26 of 37 obtained an award of compensation from the Motor Accident Claims Tribunal. On coming to know of fraud, the Insurance Company applied for recalling of the award. The Tribunal, however, dismissed the petition on the ground that it had no power to review its own award. The High Court confirmed the order. The Company approached this Court.
Allowing the appeal and setting aside the orders, this Court stated;
"It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim....."
26. In the case titled as Ram Chandra Singh vs. Savitri Devi and Ors. AIR Online 2003 SC 537, decided on 09.10.2003 passed by the Hon'ble Supreme Court of India, on the issue of Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 27 of 37 fraud has observed that:
"15. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentations may also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad....."
27. Branch Manager of plaintiff bank has clearly stated that these applications i.e. replication along with supporting affidavit as well as affidavit of admission and denial of documents of defendant, application under Order I Rule 10 CPC along with amended memo of parties and the application under Order VI Rule 17 CPC which was allowed vide order dated 01.02.2024 as well as Affidavit under Order XI Rule 6 (3) CPC alleged attested on 07.11.2022 do not bear her signature and stamp and she has never got such a stamp made bearing her signature. Initially, the Manager of plaintiff bank stated that she intended to get the FIR registered, but, on the next date of hearing, her stand softened and it is clear that bank did not wanted to take any action against the erring Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 28 of 37 advocate. However, it is also a fact that these applications were filed and the court was made to believe that the applications which were filed, were duly signed by the AR/Branch Manager of the plaintiff bank. Had the court known that the applications are not bearing the signatures of the Manager of the plaintiff bank and the stamp is also not the one which the Manager of the plaintiff bank had got made or is using, the court would not have entertained the said applications. The said filing of the applications/affidavits replication itself is a non-est. It is a settled law that the application should be signed by the concerned person who is moving the application along with supporting affidavit and the affidavit should also bear the signature of the concerned person and should be duly attested. Any application or affidavit which has been filed without the signaturs of the concerned person, and the affidavit which has not been duly attested, is a non-est filing. Certainly, the situation in the District courts is pathetic, in as much as, the affidavit are also attested by the concerned Oath Commissioner. The affidavit under XI Rule 6 (3) CPC Ex.PW1/D6 is allegedly attested by Oath Commissioner Ms. Manpreet Kaur Ahuja. The affidavit accompanying with replication is allegedly attested by Oath Commissioner Sh. Baby Rai. Similarly, the affidavit of admission and denial of documents of the defendant was also attested by the Oath Commissioner Sh. Baby Rai on 15.07.2023. Affidavit in support of the application under Order I Rule 10 CPC is attested by Oath Commissioner Sh. Vinod Kumar Pal. Affidavit in support of the application under Order VI Rule 17 is attested by Oath Commissioner Minati Murari on 13.01.2023. It is a matter of common knowledge that the affidavits in District Courts are attested without even presence of the concerned persons who has signed the affidavit and these affidavits filed in the present case, Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 29 of 37 which has been attested by the concerned Oath Commissioner are a glaring example of the same, in as much as, none of them bear the signature of the Branch Manager of the plaintiff bank. They only bear a facsimile. Certainly, PW-1 has not even appeared before the Oath Commissioner at the time of alleged attestation of the affidavits. Plaintiff has clearly denied the said stamp or the signatures on the affidavits, to be belonging to her during her cross examination on oath in the court and thus, these affidavits cannot be said to have been duly attested. The court had passed the order allowing the application under Order VI Rule 17 CPC on 01.02.2023 and allowing the application under Order I Rule 10 CPC on 12.04.2023, believing the submissions of ld. counsel for plaintiff that the same were filed on behalf of plaitniff and were duly signed by Branch Manager of plaintiff bank and the affidavits were duly attested. As the affidavit accompanying the applications were not duly attested nor the applications are bearing the signatures of the plaintiff, the order dated 01.02.2023 and 12.04.2023 allowing the application under Order VI Rule 17 CPC and under Order I Rule 10 CPC are nullity as the same has been obtained by the court through disception and fraud. In fact, using the stamp and signature of a person without any authority from the said person also amounts to making a false document as per Section 464 IPC and is forgery as per Section 463 IPC, punishable under Section 465 IPC and 466 IPC. The court was made to believe that the applications and the affidavits were signed and were bearing the seal of the Branch Manager of plaintiff bank who is a public servant and that public servant had signed the same in her official capacity. Any order obtained from the court on the basis of such forged applications and affidavit is clearly obtained by fraud and the court is not powerless to recall the said orders, as Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 30 of 37 they were obtained through fraud and misrepresentation. Any lenient view in this regard by the court would only undermine the sanctity of the judicial process and would be a mockery of the courts of law. The concerned advocate who was handling the case on behalf of plaintiff bank has adopted short cuts, but, it is a fact that there is no short cut to success and that there can never be a short cut to justice. The only lenient view which this court can have is not to recommend registration of an FIR or criminal complaint in this regard. However, the plaintiff cannot be permitted to take the benefit of the said orders. At the cost of repetition, it is mentioned that the plaintiff despite having coming to know about the fact that the application etc. moved by the is filed after forging the signatures and stamps of the concerned Branch Manager, no steps were taken by the plaintiff in this regard except placing a vague clarification on record. The said applications along with affidavit, amended memo of parties etc. i.e. Ex.PW1/D1 to Ex.PW1/D6 are thus taken off the record and thus, are discarded and are not to be taken into account indulging the present case and the order dated 01.02.2023 vide which the application under Order VI Rule 17 CPC for amendment was allowed and the order dated 12.04.2023 vide which the application under Order I Rule 10 CPC was allowed and amended memo of parties was taken on record are recalled and treated as nullity. The suit is now restored to its original position, as was filed before the court on 07.11.2022 against the defendant no. 1 and 2 without impleading the builder as defendant no. 3 and without amendment and is decided on the basis of the evidence led.
28. The basis of grant of loan is a Tripartite Agreement and therefore, the builder i.e. M/s. Manglaya Buildtech Pvt. Ltd. is a necessary party to the present suit. As the order dated 12.04.2023 Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 31 of 37 vide which the application under Order I Rule 10 CPC was allowed, has been recalled, the builder is no more a party to the present suit and as the necessary party has not been impleaded, the suit of the plaintiff must fail on this sole ground due to non- joinder of necessary party.
29. As per statement of account Ex.PW1/19 as on 30.06.2022, Rs.16,76,418/- was due and outstanding against the defendant. However, the defence taken by the defendants is that they got the flat in question cancelled from builder vide letter dated 28.06.2022 and same was accepted by builder on 29.06.2022. Plaintiff has denied that they had received the copy of the letter dated 29.06.2022, informing them about the cancellation of the flat / unit by the builder. The relevant portion of the cross of PW-1 in this regard is as under:
"......We have not received letter dated 29.06.2022 issued by the defendant no.3 to the defendant nos. 1 and 2 with regard to the cancellation of the allotment of flat in-question. We have sought confirmation from defendant no.3 about the completion of the project which was responded to us that the project will be completed in due course of time. (Vol. There are two towers F & G, tower F is almost complete and tower G is under construction). It is wrong to suggest that the defendant nos. 1 and 2 have submitted letter dated 29.06.2022 with the Bank confirming that the flat booked by them with the defendant no.3 was got cancelled.
Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 32 of 37 Q. I put it to you that is it correct that as per clause 11 of Ex.PW1/13(Tripartite Agreement), in case of cancellation and/or termination of the Agreement between the Builder and the Owner and the Borrower(s) and/or in the event of death of Borrower(s) the Builder after retaining the earnest money, under the said Flat Buyer Agreement, refund the principle amount to the Bank within a reasonable time of the termination/ cancellation/ death as the case may be ?
A. This is a Tripartite Agreement which is executed by Builder, Borrower and the Bank as such if any cancellation has to be there the same had to be with the consent of the Bank.
Q. Kindly show the clause in the Tripartite Agreement which requires consent of the Bank for cancellation of the booking by the borrower ? A. Clause no.18 of the Tripartite Agreement: "That this Agreement shall not effect in any manner whatsoever the duties and obligations of the Borrower and the Terms and Conditions agreed to and by the Borrower in the Loan Agreement and other documents executed in favour of the Bank shall remain binding upon the Borrower".
Q. What was the principal amount outstanding on 29.06.2022 ?
A. After verifying the records, witness states that the outstanding balance as on 29.06.2022 is Rs.16,65,985.93/-.
It is wrong to suggest that defendant Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 33 of 37 no.1 and 2 got cancelled there allotment with the defendant no.3, therefore, they are not liable for any amount to the Bank. It is further wrong to suggest that the entire transactions....."
30. The contents of letter dated 29.06.2022 Ex.DW1/1, which has been duly proved by DW-1 on oath, also being relevant is reproduced hereinbelow:
"To, Rajesh Kumar, S/o Sh. Barumal Goyal H-250, H-Block, Old Seemapuri, East, Delhi - 110095 M.No.9971887558 Subject: Acceptance of your cancellation letter dated 28.06.2022 for the cancellation of booking of unit/flat no G-1903 in Project "Mangalya Ophira".
Dear Sir, We are in receipt of your cancellation letter dated 28.06.2022 for the cancellation of booking of unit/flat no. G-1903 in Project "Mangalya Ophira".
We understand that as on date a total amount of Rs.16,66,000/- (Rupees Sixteen Lax Sixty Six Thousand Only) as on 31.05.2022 and plus future interest their on is outstanding against the bank loan from Punjab & Sind Bank sanctioned against the aforesaid booking of unit/flat no. G-1903.
We accept your cancellation letter dated 28.06.2022 and hereby the allotment of unit flat no. C-1903 stands cancelled. We shall pay back the outstanding against the bank Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 34 of 37 loan from Punjab & Sind Bank after the sale of the unit/flat no. G-1903, directly to the bank as per Tripartite Agreement.
We will endeavour to help you in getting the NOC from the bank after the closure of the loan account which shall be done after the sale of the allotted unit/flat.
Regards For Mangalya Buildtech Pvt. Ltd.
Sd/-
Authorized Signatory"
31. Though, the plaintiff in their affidavit of admission and denial of documents had denied the correctness, existence etc. said document of defendant Ex.DW1/1 i.e. the flat cancellation letter, but, the said affidavit was filed along with replication and is not bearing the signature and stamp of the Branch Manager of the plaintiff bank (but is bearing the facsimile, which according to PW-1 does not belong to her) and has been taken off the record as observed above. In such circumstances, it is deemed that there is no affidavit of admission and denial of documents of defendant, by the plaintiff and the said document Ex.DW1/1, thus, also becomes an admitted document. As per this letter Ex.DW1/1, the cancellation of the flat has already been accepted by the builder. The builder in the said letter has also stated that they will pay back the outsanding amount against the bank loan after the sale of the unit / flat directly to the bank as per the Tripartite Agreement. Thus, as on date or at the time of filing the suit, the flat stands cancelled in the name of defendant no. 1 and the liability to repay the bank loan is of the builder. The builder is not a party to the present suit Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 35 of 37 as the order dated 12.04.2023 has been recalled and the amended memo of parties has been taken off the record.
32. Also, though the loan in question was sanctioned in the name of defendants, but, as per Tripartite Agreement Ex.PW1/13 executed between the parties on 21.10.2016, it was agreed that in case of cancellation qua the flat in question, defendant no. 3 will return the loan amount to the plaintiff. Clause 11 of the said agreement, being relevant is reproduced hereinbelow:
"11. The Borrower(s) specifically agrees that in case of cancellation and/or termination of the Agreement between the Builder and the Owner and the Borrower(s) and / or in the event of death of Borrower (s) the Builder after retaining the earnest money, under the said Flat Buyer Agreement, refund the principle amount to the Bank within a reasonable time of the termination / cancellation / death as the case may be."
33. In view of the above clause 11 of Ex.PW1/13, in case of cancellation of the agreement between the builder and the owner, the builder has to refund the principal amount to the bank after retaining the earnest money. The defendant has duly proved on record that he has already got the flat cancelled vide Ex.DW1/1 and thus, the liability, if any, to repay the bank loan, as on date is of builder M/s. Manglaya Buildtech Pvt. Ltd., who is not a party to the present suit. No liability of the defendant no. 1 or Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 36 of 37 2 exists as on date or at the time of filing of the suit, to repay the loan amount to the plaintiff bank in view of the cancellation of the flat / unit and therefore, the plaintiff bank is not entitled to recover the outsanding loan amount from defendant no. 1 and 2.
34. In view of the above discussion, plaintiff is not entitled to any money decree as prayed for. Issue is decided against the plaintiff and in favour of the defendant no.1 and 2.
ISSUE No. (ii)Whether the plaintiff is entitled for any interest? If so, at what rate and for which period. OPP
35. In view of the above findings, as the claim of plaintiff of Rs.16,76,418.93/- has already been declined, thus, the issue of grant of interest does not survives. Issue is, thus, decided accordingly.
Relief/Conclusion
36. In view of above discussion, I am of the view that the plaintiff has failed to prove their claim by any cogent evidence and thus could not discharge the burden of proving their claim for an amount of Rs.16,76,418.93/- against defendant no. 1 and 2. Hence, the plaintiff is not entitled for the money decree as prayed. Accordingly, the suit of the plaintiff is dismissed with cost of Rs.20,000/- payable by the plaintiff to defendant no. 1 and 2 equally. Digitally signed by KIRAN File be consigned to Record Room. KIRAN BANSAL BANSAL Date:
2024.09.30 17:12:32 Pronounced in open court on +0530 30th day of September, 2024 (Kiran Bansal) District Judge, Commercial Court-02 Shahdara, Karkardooma Delhi/30.09.2024 Civil Suit (Comm) No. 619/2022 Punjab & Sind Bank Vs. Mr. Rajesh Kumar Page No. 37 of 37