Delhi District Court
Housing Development Finance vs Mr. Rahul Mahajan on 21 May, 2022
IN THE COURT OF MS. TWINKLE WADHWA:
ADDITIONAL DISTRICT JUDGE CENTRAL-03: TIS
HAZARI COURTS: DELHI
MCA DJ No.09/19
CNR No.DLCT01-001743-2019
In the matter of :-
1. Housing Development Finance
Corporation Limited
The Capital Court
Olof Palme Marg
Munirka, New Delhi ...Appellant
Vs.
1. Mr. Rahul Mahajan
Through Sanjeev Agarwal (AR)
S/o Mr. Brij Nandan Saran Agarwal
R/o B-1, Flat No. - 1826-A,
Vasant Kunj, New Delhi-110070.
2. Sunworld Residency Private Limited
117, Hans Bhawan,
1 B. S. Z. Marg, New Delhi -110002.
Also at:
C-4, Sector 4, NOIDA-201301 ...Respondents
Date of institution of the appeal : 06.02.2019
Date on which order was reserved : 09.05.2022
Date of decision : 21.05.2022
Conclusion : Dismissed
JUDGMENT
1. This is an appeal against order of Ld. Trial Court dated 14.01.2019. Plaintiff Sh. Rahul Mahajan had filed a suit before Ld. Trial Court for permanent and mandatory injunction against Housing Development Finance Corporation Limited (HDFC) and MCA No.10/19 Page no. 1 of 7 also M/s. Sunworld Residency Private Limited. Plaintiff filed the suit before Ld. Trial Court on the ground that defendant no. 2 Company had approached the plaintiff for purchase of an Apartment in its housing complex, "Sunworld Arista". Plaintiff visited India and Defendant no. 2 also arranged a meeting with the officers of defendant no. 1 for the purpose of availing home loan. It was represented to the plaintiff that a Supplementary Agreement shall be entered into with defendant no. 2 and also a Tripartite Agreement shall also be entered into between all the parties.
2. Further it was apprised to the plaintiff that in case booking is cancelled by the plaintiff, loan amount shall be returned by defendant no. 2 and defendant no. 1 shall have its recourse only against defendant no. 2. Consequently, the plaintiff vide Agreement dated 08.08.2015 agreed for the purchase of Apartment for a sum of Rs.1,25,77,500/- and plaintiff paid a booking amount of Rs.13,08,648/-. A Supplementary Agreement was also entered into between the plaintiff and Builder (defendant no.2). A Tripartite Agreement was also entered into between the parties of even date.
3. In terms of the Tripartite Agreement, defendant no. 1 disbursed the loan amount to defendant no. 2 Builder i.e. M/s. Sunworld Residency Pvt. Ltd. Being unsatisfied with the functioning of defendant no. 2 on 04.05.2017, vide separate letter sent to the Builder, the plaintiff was pleased to cancel the booking of the Apartment.
MCA No.10/19 Page no. 2 of 7
4. Defendant no. 2 responded to the said cancellation vide order dated 04.05.2017. Thereafter a suit was filed and an application under Order 39 Rules 1 and 2 CPC was moved by the plaintiff before the Ld. Trial Court thereby requesting an injunction against the bank thereby restraining the bank from taking the further EMIs from the bank account of plaintiff. The said application was allowed. Against the said application, the present appeal has been filed by HDFC.
The Case of the Appellant
5. It is submitted by Counsel for appellant / HDFC that Supplementary Agreement, if any, was entered into between the Builder and the client, bank is not a party to it, hence not bound by such Agreement.
6. Also attention of the Court is drawn to "Clause 58" of the Builder Buyer Agreement wherein it is specifically mentioned that Allottee shall not be entitled to seek Cancellation of allotment. Developer may in its sole discretion either accept allottee's request to cancel this allotment and refund the amount. However in the present case, Builder has not cancelled the allotment.
7. Attention of the Court is drawn to the letter dated 04.05.2017 written by plaintiff for cancellation of booking and reply to the same by Builder vide letter dated 13.05.2017 wherein his request for cancellation was declined. Rather it is submitted MCA No.10/19 Page no. 3 of 7 that Agreement of the client was further extended by one year.
8. Ld. Counsel for appellant has also drawn attention of the Court to Annexure A5 dated 22.08.2015 which is Subvention Scheme Informatory. It is submitted that it is clearly mentioned therein that HDFC shall not be responsible for any delay in delivery of the project. It is further mentioned therein that in case of delay in delivery of the flat, client shall continue to pay EMIs on time as per loan Agreement. Further HDFC is in no way promoting the Builder or the Project in any manner. Further it is submitted by Counsel for appellant that it is mentioned in Tripartite Agreement that Borrower has chosen the Builder of his choice. Hence to book the flat with the Builder was the choice of Borrower.
9. It is further submitted that in Para3 of the Tripartite Agreement, it is clearly mentioned that on account of any issues between the Borrower and Builder, the EMIs shall not be stopped.
The Case of the Respondent
10. It is submitted by Counsel for the respondent and she has drawn attention of the Court to Clause - 8 of the Tripartite Agreement wherein it is mentioned that in the event of Cancellation of residential Apartment for whatsoever reason, the entire amount advanced shall be refunded by the Builder to HDFC. Hence it is submitted that the Builder is liable to pay MCA No.10/19 Page no. 4 of 7 amount to the HDFC. Para 8 of the Tripartite Agreement is as follows:-
"8. That if the Borrower fails to pay the balance amount representing the difference between the loan sanctioned by HDFC and the actual purchase price of the flat/ residential apartment, or in the event of death of the Borrower or in the event of cancellation of the residential apartment for any reason whatsoever the entire amount advanced by HDFC will be refunded by the Builder to HDFC forthwith. The Borrower hereby subrogates all his rights for refund with respect to the said residential apartment in favour of HDFC."
11. It is further submitted by Counsel for respondent that as per Clause -7 of Supplementary Agreement, the Client has the option of cancellation of its booking after the completion of 24-months from the date of bank loan disbursement. It is also mentioned therein that in case of such cancellation, the Developer shall refund the booking amount alongwith interest.
12. Also attention of the Court is drawn to Clause -9 of the Supplementary Agreement. It is mentioned therein that in case of Cancellation of allotment, the Developer shall settle the loan account of bank first.
MCA No.10/19 Page no. 5 of 7 Reason for Decision
13. I have heard both the sides and gone through the record.
14. Needless to say that the various documents relied upon by the parties i.e. Supplementary Agreement, Tripartite Agreement all were executed on the same date i.e. 08.08.2015. Further they are pre-prepared documents and are not customized by the Bank or by the Builder according to each client. Clients have no option in such cases but to sign on the documents which are pre- prepared by the Bank before granting of home loan. Further there are several such Projects which are sponsored by the banks also. However as the arguments was not advanced before the undersigned whether this project was pre-sponsered and was advertised with the name of HDFC, I refrain from giving any opinion on the same.
15. Nevertheless, there are various clauses in these documents some of which are in favour of Borrower / Client with respect to the cancellation and refund of the amount by Builder to the Bank. While other clauses favour the Builder. Further as the Supplementary Agreement dated 08.08.2015 was also entered on the same day and is part of rest of the documents, whether Bank can get away with its responsibilities by merely saying that it is not a party to this Agreement, cannot be decided at this stage. The said issue requires trial.
16. Further this fact cannot be ignored that in such type of agreements, there is no bargaining power at the end of Borrower / MCA No.10/19 Page no. 6 of 7 Client. Hence what will be the consequences of such unequal bargaining power between the parties cannot be decided at this stage and can be decided only after leading evidence by both the parties. Needless to say, arguments on this issue was also not advanced before the undersigned.
17. In view of various clauses on record, some of which are in favour of Borrower, by way of which Builder is to refund the amount to the Bank and in view of prima facie unequal bargaining power involved while entering into these documents between the parties, it appears there is a prima facie case in favour of respondent. If after leading evidence, it is the opinion of Ld. Trial Court that EMIs and rest of the loan amount is to be paid by the Borrower to the Bank, Court may award interest on such amount which has remained unpaid during all these period. Hence, no loss shall be suffered by the respondent. Hence, balance of convenience is also in favour of respondent.
18. In view of the above, there is no merit in the appeal and the same is hereby dismissed.
19. Trial Court Record (TCR) be sent back. Copy of this order be sent to the Ld. Trial court alongwith Trial Court Record.
20. Appeal file be consigned to record room after due compliance. TWINKLE Digitally signed by TWINKLE WADHWA WADHWA Date: 2022.05.21 15:33:32 +0100 Announced in the open court (Twinkle Wadhwa) On this 21st Day of May 2022 Ld. ADJ-03, Central THC/Delhi/21.05.2022 MCA No.10/19 Page no. 7 of 7