Delhi District Court
Lic Housing Finance Ltd vs Nishant Masih on 18 April, 2023
IN THE COURT OF MR. SATYABRATA PANDA, ADJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS NO.57737 OF 2016
Date of institution: 19.12.2014
Arguments heard:01.03.2203
Date of judgment: 18.04.2023
LIC Housing Finance Ltd.
Laxmi Insurance Building
Asaf Ali Road, New Delhi
(through its authorized signatory
Sh. Rajni Kant Uniyal)
............Plaintiff
VS
1. Nishant Masih
s/o Sh. Elic Masih
H.No.B-86, G-III, Extension-II
Shalimar Garden, Sahibabad, UP
2. Golf Course Sahakari Awas Samiti Ltd.
D-162, Sector-10, Noida
Uttar Pradesh
also through:
Secretary
Interim Committee
Golf Course Sahakari Awas Samiti Ltd.
Uttar Pradesh Awas Vikas Parishad
Second Floor, Sector 16 A
Hall No.S-4, Vasundhara Complex
Vasundhara, Ghaziabad
also through
The Registrar
UP Co operative Group Housing Societies
UP Awas Vikas Parishad
104, Mahatma Gandhi Road
Lucknow-UP
..........Defendants
CS no.57737 of 2016 LIC HOUSING FIN. LTD. VS. NISHANT MASIH page no.1
JUDGMENT
1. The plaintiff has filed the present suit for recovery of Rs.
45,29,601.94 from the defendants along with interest. The suit was initially filed as a summary suit under Order XXXVII CPC but was subsequently converted into an ordinary suit vide order dated 04/01/2017 upon the statement of the learned counsel for the plaintiff.
2. The case of the plaintiff as pleaded in the plaint is as follows. It is stated that the plaintiff is a company incorporated under the provisions of Companies Act, 1956. The plaintiff is engaged in the business of giving financial assistance in the form of their loan schemes, for purchasing residential accommodation for individual home loan scheme. Under the said scheme, a borrower, who approaches the plaintiff company for loan to purchase/construct the property submits an application form and after sanction, enters into written agreement/contract. The defendant no.1 is the borrower under the above loan scheme within the meaning of loan agreement executed between the plaintiff and defendant no.1. The defendant no.2 is the builder/society to whom the loan amount has been disbursed. The defendant no.2 being a co-operative society, having its registration no.3289, registered on 07.04.2004, through its authorized signatory, was allotted a plot of land bearing no.7, sector Pi II, Greater Noida, as per lease deed dated 29.03.2005, registered in book no.1, volume no.916, on pages from 213 CS no.57737 of 2016 LIC HOUSING FIN. LTD. VS. NISHANT MASIH page no.2 to 248, with registration no.2509, registered on 29.03.2005 in the office of Sub-Registrar, Gautam Budh Nagar , Ghaziabad, UP and was constructing a multi-storey group housing society. The defendant no.2 proposed that as per this scheme they were in process of constructing various flats, for its members. The defendant no.1 approached the plaintiff, and applied to the plaintiff for the loan against the property/flat/unit no.1003, on ground floor, measuring 1950 sq. ft. in block/tower-T 1, in Shiv Kala Charms, plot no.07, Sector-Pi II, Greater Noida, UP (hereinafter referred to as 'said property') under the plaintiff's individual home loan scheme for purchasing the said property. The defendant no.1 also produced a share certificate showing membership no.553 issued by defendant no.2 society and further stated that the defendant no.1 had been allotted a flat bearing number property/flat/unit no.1003, on ground floor, measuring 1950 sq. ft. in block/tower-T1, in Shiv Kala Charms, plot no.7, Sector-Pi II, Greater Noida, UP. The tentative cost of said flat was Rs.46,70,000/- out of which a sum of Rs.11,50,000/- had already been paid by defendant no.1 to defendant no.2 society against following receipts: i) Receipt no.1811 dated 19.08.2010 for Rs.3,00,000/-, ii) Receipt No.1860 dated 22.09.2010 for Rs.1,50,000/-, iii) Receipt No.1831 dated 31.08.2010 for Rs.5,00,000/-, iv) Receipt No.1609 dated 20.06.2010 for Rs. 2,00,000/-. The said payment of Rs.11,50,000/- was confirmed by defendant no.2 society, which also assured the plaintiff that no other dues were outstanding against defendant no.1 in respect of said property. The defendant CS no.57737 of 2016 LIC HOUSING FIN. LTD. VS. NISHANT MASIH page no.3 no.2 also assured that it will not issue duplicate share certificate to defendant no.1 without obtaining written consent of the plaintiff and further assured that in the event of default by defendant no.1, if the plaintiff enforced the security, by sale, the defendant no.2 would accept the purchaser of the said property as a member. It was also agreed by the defendant no.2 that in the event of cancellation of above allotment/purchase of the flat before actual possession on any ground, the defendant no.2 shall refund to the plaintiff the entire amount advanced/disbursed by the plaintiff, towards the cost/value of the said property. It was also confirmed by defendant no.1 and 2 that they have complied with all the conditions set out by the local authorities, while sanctioning the lay out plan etc. The plaintiff considered the request of the defendants and vide offer letter dated 31st July, 2010 sanctioned/granted the loan of Rs.34,50,000/- for the purchase of flat bearing number, property/flat/unit no.1003, on ground floor measuring 1950 sq. ft. in block/tower-T 1, in Shiv Kala Charms, plot no.07, Sector- Pi II, Greater Noida, UP to the defendant no.1. On the basis of the loan application, the plaintiff company sanctioned a sum of Rs.34,50,000/- out of which Rs.32,77,500/- was disbursed to the defendant no.2 on 29.10.2010 under the instructions of defendant no.1 vide cheque no.844085 drawn on HDFC bank, KG Marg, New Delhi and defendant no.1 was allotted the loan account no.14011097258 (14409968) and the above said disbursed amount was debited to his above said loan account. The CS no.57737 of 2016 LIC HOUSING FIN. LTD. VS. NISHANT MASIH page no.4 defendant no.1 agreed to the terms and conditions of the loan offer letter and further in order to secure the above said loan of Rs. 34,50,000/- sanctioned to and availed by defendant no.1, the defendant no.1 and 2 executed various loan documents and agreed to pay back the loan amount alongwith interest at the fixed rate of 9.25% per annum with monthly rests for the first five years and after that prevailing floating rate as per the terms of and conditions of offer letter and loan documents or such other rate which the plaintiff may specify from time to time. The defendant no.1 further accepted and confirmed that the defendant no.2 has taken the necessary permission and approvals from the concerned authority in respect of the project in which the defendant no.1 has booked/purchased the said property/flat. Defendant no.1 in order to secure the loan facility granted to him signed and executed the following documents: i) Loan agreement dated 22.09.2010, ii) APF-
7. Defendant no.1 had also agreed to repay the said amount advanced by plaintiff with interest in 240 EMI regularly. Defendant no.1 had also agreed to pay additional interest as per the rules of plaintiff and all other charges as applicable from time to time as per policy of plaintiff in case of delay/default in making repayment of the loan. The defendant no.1 created security/lien/mortgage against the said property in favour of plaintiff by depositing the relevant/title documents of the said property as security for the repayment of the aforesaid loan. Defendant no.1 to create such security also deposited the following documents in original with the plaintiff: i) Original CS no.57737 of 2016 LIC HOUSING FIN. LTD. VS. NISHANT MASIH page no.5 agreement cum allotment letter, ii) Original share certificate, iii) Original payment receipts. The plaintiff, defendant no.1 and defendant no.2 had also executed Tripartite Agreement and agreed that on handing over possession of flat in question the defendant no.1 shall mortgage the flat in favour of the plaintiff. It was also agreed that till the flat was mortgaged in favour of plaintiff, the flat in question shall be treated as 'security' against which the plaintiff advanced loan to defendant no.1 and paid to defendant no.2. That in accordance with the loan offer letter and agreement the defendant no.1 started paying installment. However, defendant no.1 started default in making payments of the EMI as per the above said agreement, and thereby showed complete negligence and deliberate default in payment of EMI resulting in huge arrears in his account. The defendant no.1 had not paid any sum towards the repayment of loan since month of October 2011 (last payment received on 05.10.2011) and since then the defendant no.1 had not paid any amount thereafter. The defendant no.2 had not completed the construction work and had made multiple allotments due to which the plaintiff was compelled to lodge criminal complaint in Economics Offence Wing against the builder/society, the defendant no.2. The plaintiff had number of times followed up for collection of EMI dues by telephonic calls, visits and oral requests but to no avail. Thereafter, plaintiff got issued notice dated 18.11.2013 calling upon the defendants to pay outstanding amount. The defendant no.2 did not comply with the terms and CS no.57737 of 2016 LIC HOUSING FIN. LTD. VS. NISHANT MASIH page no.6 conditions of tripartite agreement. The plaintiff is also entitled to interest @18% per annum. As per the books of account maintained by the plaintiff in due course of its business, the defendants were liable to pay a sum of Rs.45,29,601.94 as outstanding loan as on 30.09.2014 as per details given below:
PARTICULARS AMOUNT (RS.)
EMI PRINCIPAL 2,75,865.56
BROKEN PERIOD INTEREST 18,558.00
EMI INTEREST 8,30,204.44
ADDL. INTEREST 3,82,648.00
RECOVERY CHARGES 87,900.00
DOCUMENT RETRIEVAL 3.00
CHARGES-HIGHER
EDUCATION CESS
DOCUMENT RETRIEVAL 6.00
CHARGES-EDUCATION CESS
DOCUMENT RETRIEVAL 2500/-
CHARGES
CHEQUE DISHNOUR 1150/-
DOCUMENT RETRIEVAL 300/-
CHARGES SERVICE TAX
LEGAL CHARGES 1300/-
PRINCIPAL 29,29,166.94
EXCESS AMOUNT 00
TOTAL 45,29,601.94
On the basis of the aforesaid pleadings in the plaint, the plaintiff has sought recovery of sum of Rs. 45,29,601.94 from the defendants along with interest.
3. The defendants could not be served through the ordinary mode and were directed to be served by substituted service through publication vide order dated 26/02/2022. Vide order dated 12/05/2022, the defendants were deemed to CS no.57737 of 2016 LIC HOUSING FIN. LTD. VS. NISHANT MASIH page no.7 have been served through publication. The defendants were proceeded ex parte as none appeared for the defendants. The plaintiff's evidence was recorded ex parte and the final arguments were also heard ex parte.
4. In support of its case, the plaintiff has examined as PW-1 Mr. Manoj Kumar Sharma, Associate Chief manager in the plaintiff company. He has tendered his affidavit in evidence Ex.PW-1/A in which he has deposed on the lines of the plaint. He has also relied upon the following documents:
1. Authority letter dated 09.08.2021 is Ex. PW1/1 (OSR).
2. Authority letter dated 13.05.2014 is Ex. PW1/2 (OSR).
3. Loan application is PW1/3.
4. Four receipts are Ex. PW-1/4 to Ex. PW1/7.
5. Loan offer letter dated 31.07.2010 is Ex. PW1/8.
6. Loan agreement dated 22.09.2010 is Ex.PW1/9.
7. Tripartite agreement dated 20.09.2010 Ex.PW 1/10.
8. Share certificate dated 02.07.2010 is Ex. PW1/11.
9. Agreement-cum-allotment letter dated 02.07.2010 is Ex. PW1/12.
10. Legal notice dated 18.11.2013 is PW1/13.
11. Three postal receipts are Ex. PW1/14 to Ex. PW 1/16.
12. AD Card is Ex. PW1/17.
13. Statement of account is PW1/18.
5. I have heard the submissions of the learned counsel for the plaintiff and I have perused the record.
CS no.57737 of 2016 LIC HOUSING FIN. LTD. VS. NISHANT MASIH page no.8
6. I have considered the ex parte evidence led by the plaintiff, both oral as well as documentary. PW-1 has deposed on the lines of the plaint. His testimony is unrebutted and unchallenged. The documentary evidence relied upon by the plaintiff is also unchallenged and unrebutted. The plaintiff has proved the loan document comprising of the loan application Ex.PW1/3, receipts Ex.PW1/4 to Ex.PW1/7, loan offer letter Ex.PW1/8, loan agreement Ex.PW1/9 and tripartite agreement Ex.PW1/10. Plaintiff has also proved the legal notice Ex.PW1/13 issued to the defendants for payment of amounts which are claimed in present suit. There was no reply by the defendants to the said legal notice. Plaintiff has filed statement of account Ex.PW1/8, as per which amount of Rs.45,29,601.94 was due as on 30.09.2023. I have no special reason to disbelieve the ex parte evidence led by the plaintiff. The defendant has not come forward to defend the suit and controvert the case set up by the plaintiff and the evidence led by the plaintiff in support of its case. The case of the plaintiff on the basis of the evidence led is believable and there is no reason why the defendants would have chosen to not contest the suit if the defendants actually had any valid defence to the suit. It is well settled that in a civil case the standard of proof is on a balance of probabilities which standard is met if the proposition is more likely to be true than untrue. On the basis of the ex parte evidence led by the plaintiff which is unchallenged and uncontroverted, I would hold that, on a balance of probabilities, the plaintiff has been able to prove its case as CS no.57737 of 2016 LIC HOUSING FIN. LTD. VS. NISHANT MASIH page no.9 pleaded in the plaint. Accordingly, I hold that the plaintiff is entitled to decree against the defendants for Rs. 45,29,601.94 along with interest @ 9% p.a. from the filing of the suit till the date of actual realization.
7. Accordingly, decree is passed in favour of the plaintiff and against the defendants for Rs. 45,29,601.94 along with interest @ 9% p.a. from the date of filing of the suit till the date of actual realization. Costs are decreed in favour of the plaintiff. Pleader's fees is fixed as Rs. 15,000/-. Let the decree-sheet be drawn up accordingly.
File be consigned to record room Judgment pronounced in open Court.
(SATYABRATA PANDA) Additional District Judge-04 Judge Code- DL01057 PHC/New Delhi/18.04.2023 CS no.57737 of 2016 LIC HOUSING FIN. LTD. VS. NISHANT MASIH page no.10