Delhi District Court
Monica Vats vs Lic Housing Finance Ltd And Ors on 24 August, 2024
In the Court of Sh. Deepanker Mohan
District Judge-04, Shahdara District,
Karkardooma Courts, Delhi
CS No. 211/2016
IN THE MATTER OF :-
LIC Housing Finance Ltd.
Laxmi Insurance Building
Asaf Ali Road, New Delhi
(Through its Authorized Signatory
Sh. Rajni Kant Uniyal) ..... Plaintiff
Versus
1. Ms. Monika Vats
W/o Sh. Amit Vats
D/o Sh. Mool Chand Sharma
R/o 6/16, Street no.4, Vishwas Nagar,
Shahdara-110032
New Delhi
2. Amit Vats
S/o Sh. V.P. Sharma
R/o 6/16, Street no.4, Vishwas Nagar,
Shahdara-110032
New Delhi
3. 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-16A
Hall no. S-4, Vasundhara Complex
Vasundhara, Ghaziabad
Page 1 of 36
Digitally
signed by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2024.08.24
18:24:02
+0530
ALSO THROUGH
The Registrar
UP Cooperative Group Housing Societies
UP Awas Vikas Parishad
104, Mahatma Gandhi Road
Lucknow, Uttar Pradesh .... Defendants
1. CS No. : 211/2016
2. Under Section : Suit for recovery of
Rs.26,34,872.27/- under
Order XXXVII of CPC.
3. Date of Institution : 30/04/2015
4. Reserved for Judgment : 29/05/2024
5. Judgment : 24/08/2024
AND
CS No. 469/2017
IN THE MATTER OF :-
1. Monica Vats
W/o Sh. Amit Vats
2. Amit Vats
S/o Late V.P. Sharma
Both R/o A-31, IInd & IIIrd floor,
Yojna Vihar, Delhi-110092 ..... COUNTER CLAIMANTS
Versus
1. Golf Course Sahakari Awas Samiti Ltd.
Office: D-162, Sector-10, Noida, Uttar Pradesh
ALSO THROUGH:-
Secretary
Page 2 of 36
Digitally
signed by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2024.08.24
18:24:10
+0530
Interim Committee
Golf Course Sahakari Awas Samiti Ltd.
Uttar Pradesh Awas Vikas Parishad
Second floor, Sector-16A
Hall no. S-4, Vasundhara Complex
Vasundhara, Ghaziabad
2. LIC Housing Finance Ltd.
Office: Laxmi Insurance Building
Asaf Ali Road, New Delhi ... Defendants
1. CS No. : 469/2017
2. Under Section : Counter-claim for recovery
of Rs.42,25,335/- along
with interest @ 11.5% per
annum and also future
interest till its realization.
3. Date of Institution : 30/03/2017
4. Reserved for Judgment : 29/05/2024
5. Judgment : 24/08/2024
JUDGMENT
1. Vide this common judgment, this court shall dispose off suit for recovery of Rs.26,34,872.27/- under Order XXXVII of CPC filed by plaintiff against defendants and counter claim for recovery of Rs.42,25,335/- along with interest @ 11.5% per annum and also future interest till its realization, filed by counter claimants (Defendant No. 1 and 2 in the main suit) against defendant Nos. 1 and 2 (Defendant no. 1 and Plaintiff in the main suit respectively).
Page 3 of 36
Digitally
signed by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2024.08.24
18:24:17
+0530
2. For the convenience and to avoid confusion, the parties shall be called/ mentioned as per their original status mentioned in main suit in the present judgment, even while dealing and determining the Counter claim.
3. The necessary facts mentioned in the plaint are as follows:
(I) It is stated in the plaint that plaintiff company is engaged in the business of giving financial assistance in the form of their loan schemes, for purchasing residential accommodation for individual etc. and one of their schemes is Individual Home Loan Scheme. Under the said scheme, a borrower who approaches plaintiff company for loan to purchase/construct the property submits an application form and after its sanction, the borrower enters into written agreement/contract with plaintiff company.
(II) Under the said loan scheme, defendants no.1 and 2 are the borrowers within the meaning of loan agreement executed between plaintiff and defendant no.1 and 2 and defendant no.3 is the builder/society to whom the loan amount has been disbursed. The defendant no.3 is also represented by the Secretary, Interim Committee, appointed by Uttar Pradesh, Awas Vikas Parishad, Lucknow. The defendant no.3 being a cooperative society was constructing multi society group housing society. The defendant no.1 approached and applied to plaintiff for the loan against the property/ flat/ unit no.4054, on 5th floor, measuring 1950 sq. ft. in Block/Tower-T4, in Shiv Kala Charms, Plot no.07, Sector-Pi, II, Greater Noida, UP under the plaintiff's individual home loan schemes for purchasing the said Page 4 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:24:24 +0530 property.
(III) The defendant no.1 also produced a share certificate reflecting membership no.276 issued by defendant no.3 society and further stated that defendant no.1 had been allotted the above-mentioned property in the project of defendant no. 3. The tentative cost of the said flat was Rs.25 lakhs out of which a sum of Rs.5 lakhs has already been paid by defendant no.1 to defendant no.3 society vide Receipt no. 973 dated 09.09.2008 as his share of purchase of the said property. The said payment of Rs.5 lakhs was confirmed by defendant no.3 society which also assured plaintiff that no other dues were outstanding against defendant no.1 in respect of the said property. The defendant no.3 also assured that it will not issue duplicate share certificate to defendant no.1 without obtaining written consent of plaintiff and further assured that in the event of default by defendants no.1 and 2, if plaintiff enforced the security, by sale, defendant no.3 would accept the purchaser of the said property as its member.
(IV) It was also agreed by defendant no.3, that in the event of cancellation of the above allotment/purchase of the flat before actual possession on any ground, defendant no.3 shall refund to plaintiff the entire amount advanced/disbursed by plaintiff, towards the cost/value of the said property. The plaintiff considered the request of defendants and vide offer dated 15/10/2008 sanctioned/granted loan of Rs.20 lakhs for the purchase of the above said property/flat to defendant no. 1 and out of which Rs.19,90,000/- was disbursed to defendant no.3 on 24/10/2008 under the instructions of defendant no.1 and 2 vide cheque Page 5 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:24:31 +0530 no.777020 drawn on HDFC Bank, KG Marg, New Delhi and defendant no.1 was allotted the loan account no.14011015783(14112133) and the above said disbursed amount was debited to her above-said loan amount.
(V) The defendants no.1 and 2 agreed to the terms and conditions of the loan letter and in order to secure the above-said loan of Rs.20 lakhs sanctioned to and availed by defendants No.1 and 2, the defendants No.1 to 3 executed various loan documents and agreed to pay back the loan amount along with fixed rate of interest at the rate of 11.50% per annum with monthly rests as per the terms of and conditions of the offer letter and loan documents or such other rate which plaintiff may specify from time to time. The defendants No.1 and 2 further accepted and confirmed that defendant No.3 has taken the necessary permission and approvals from the concerned authority in respect of the project in which defendant No.1 has booked/ purchased the said property/ flat.
The defendants no.1 and 2, in order to secure the loan facility granted to him, signed and executed the documents i.e. Loan Agreement dated 17-10-2008 and APF - 7.
(VI) The defendants no.1 and 2 had also agreed to repay the said amount advanced by plaintiff with interest in 240 Equated Monthly Installments (EMI), regularly. The defendants no.1 and 2 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.
Page 6 of 36
Digitally
signed by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2024.08.24
18:24:39
+0530
(VII) The defendant no.1 also created security/lien/mortgage against the said property in favour of plaintiff by depositing the relevant/title documents of the above-said property/flat as security for the repayment of the aforesaid loan. The defendant no.1 to create such security also deposited documents in original i.e. original agreement cum allotment letter, original share certificate and original payment receipts, with the plaintiff.
(VIII) The plaintiff, defendants no.1 and 2 and defendant No.3 had also executed a Tripartite Agreement and agreed that on handing over possession of flat in question, defendant No.1 shall mortgage the flat in favour of 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 plaintiff advanced loan to defendant no. 1 and paid to defendant no.3. The defendant no.1 paid EMIs to plaintiff uptill October, 2012 but since November, 2012 the defendant No.1 has not paid the EMIs and has committed default in payment of EMIs resulting in huge arrears in her account. The defendant no.3 has also not completed the construction work and has made multiple allotments due to which plaintiff was compelled to lodge criminal complaint in Economic Offence Wing against builder/society i.e. defendant no.3. The defendant No.1 had violated the terms and conditions of the Loan Agreement and other loan documents as they had committed and continued default in making payment of EMIs and the defendant No.3 also did not comply the terms and conditions of the tripartite agreement. The plaintiff also issued a notice dated 31/12/2003 calling upon defendants to pay the outstanding amount but despite issuance of Page 7 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:24:46 +0530 legal notice, defendants failed to make payment of the outstanding loan dues. It is further stated that as per the books of account maintained by plaintiff in due course of its business, defendants are now liable to pay a sum of Rs.26,34,872.27 as outstanding loan as on 30/04/2015. It is further stated plaintiff is also entitled to interest @ 18% per annum on the suit amount. The plaintiff having no other remedy available to it, has filed the present suit for recovery against defendants.
4. Initially summons in a prescribed form under Order XXXVII CPC in the present suit were issued against defendants vide order dated 22/05/2015, however, the present suit was converted into an ordinary suit vide order dated 06/04/2016 and further summons were issued against defendants. Upon receipt of summons, defendants no.1 and 2 put their appearance through their counsel in the present matter on 18/02/2017 and subsequently filed their written statement on 30/03/2017. None has been appearing on behalf of defendant no.3 since 18/02/2017, hence Defendant No. 3 was proceeded ex-parte in the present matter (main suit) vide Order dated 26/08/2017.
5. Defendants no.1 and 2 pleaded in their written statement which is as under:-
(I) The defendant no.3, in connivance with various finance companies including plaintiff officials, had issued multiple allotment letter of flats.
The defendant no.3 has not delivered the possession of the flat to defendant no. 1 and 2 which was promised to be delivered by the end of December, 2008. The financial institutions i.e. (1) PNB Housing Finance Ltd. (2) LIC Housing Finance Ltd., (3) HDFC Bank Ltd. (4) Page 8 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:24:52 Axis Bank Ltd. and (5) FBL Bank, extended loans to the extent of 90% of the total consideration amount under sale and directly transferred the loan amount to the society's account i.e. defendant no.3. The project was abandoned by the builder/defendant no. 3 still these financial institutions including plaintiff kept on demanding the installments from defendant no. 1 and 2. The present suit is liable to be dismissed as the same flat has been allotted to more than two to seven persons. The financial institutions advanced more than one loan on the same flat to different persons. There are also various allotments in respect of non- existing flats.
(II) The defendant no.3 approached defendant no.1 and 2 and stated that plaintiff approved the pre-launch project and ready to finance the project in question. The defendant no.3 got the loan sanctioned from plaintiff and defendants no.1 and 2 signed the paper in good faith without knowing the contents which were later on filled up by plaintiff officials.
(III) The plaintiff officials played fraud upon defendants no. 1 and 2 and had paid the loan amount to defendant no.3 directly after obtaining the search report (NEC- non encumbrance certificate) of the title which was procured by plaintiff from his penal lawyer. It is further stated that according to tripartite agreement, the flat in question has already treated as a security against alleged sanctioned loan and plaintiff has liberty to sell out the same for the purpose to recovery of his loan amount. A fraud has been committed by the defendant no. 3 in connivance with various financial institutions including plaintiff and Page 9 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:24:58 +0530 three FIRs bearing no. 62/2012 with P.S. EOW, 65/2012 with P.S. EOW and 143/2012 with P.S. EOW have been registered for the offences under Section 409/420/467/468/471/120-B IPC.
(IV) The Plaintiff is not entitled to recover any amount from the Defendant No. 1 and 2, however, the Defendant no. 1 and 2 are claiming recovery of Rs. 42,25,335/- with interest @ 11.5% per annum against plaintiff and defendant no. 3 by way of separate Counter claim.
6. On 30/03/2017, Counter claim along-with an application u/s 151 CPC seeking time to file court fees, was filed on behalf of defendant no. 1 and 2. The said application was allowed and Counter claim was registered separately vide Order dated 09/05/2017. On 26/08/2017, the Counter Claimant (Defendant no. 1 and 2 in the main suit) also filed the court fees of Rs. 44,074/- in the counter claim.
7. The necessary facts mentioned in the counter claim are as follows:
(I) The defendant no.3 introduced a pre-launch project of the society in the name of Shiv Kala Charms Luxury Living Apartments, Greater Noida, U.P. at plot no.07, Sector, Pi-II, Greater Noida (G.B. Nagar).
The defendant no.3 in collusion with officials of different financial institution i.e. (1) PNB Housing Finance Ltd. (2) HDFC Bank Ltd. (3) Axis Bank Ltd. and (4) FBL Bank finance company and (5) Plaintiff, had stated that Shiv Kala Charms Luxury Living Apartments, is a pre- launch project and the financial institutions have approved the project for loan and they agreed to sanction the loan for purchase of flats in the above-said pre-launch project. The defendant no. 1 and 2 (counter Page 10 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:25:06 +0530 claimants) agreed to book the flat in the above-said project and deposited Rs.5 lakhs vide receipt no.769 dated 05/09/2008 with defendant no. 3 society through cheque bearing no.105168 of HDFC Bank. The defendant no.3 booked and allotted flat bearing no.4054, approx.1950 sq. ft. (super area) at 5 th floor at T-5 in the name of defendant no. 1 and 2 in the afore-said project.
(II) The authorized representative of defendant no.3 stated to defendants no. 1 and 2 that deferent financial institutions including plaintiff are already approved the project and ready to finance the loan to the flats of the society. Under the above-said impression, defendants no.1 and 2 agreed to obtain the loan from plaintiff and after obtaining the search report (NEC) of title, plaintiff disbursed the loan amount to defendant no.3 directly. The defendant no 1 and 2 just signed the papers in good faith without knowing its contents which were later on filled up by the plaintiffs' official.
(III) The defendant no. 1 and 2 had paid the EMIs to plaintiff with the hope that the possession of the flat will be handed over to him by defendant no. 3. The Plaintiff already admitted in its plaint (C.S. no.
211/2016) that defendant no.3 had not completed the construction work and had made multiple allotments. It is further stated that several allottees made the complaints against defendant No. 3 and financial institutions to Delhi Police and three FIRs have also been registered against the defendant no. 3 and its directors and associates.
8. Written statement was filed on behalf of defendant no. 2 (Plaintiff in the main suit) in the Counter claim on 20/09/2018 in which Page 11 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:25:12 it was pleaded as under:-
(I) The plaintiff did not approve any pre-launch of the project and did not agree for financing of flats in any pre-launch of the project. The Counter claimants have approached the plaintiff for grant of loan in respect to the flat after they had selected and booked it in the month of September, 2008. The Counter Claimant no.1 had already paid booking amount after becoming member of society/defendant no.3. The project was allowed for retail financing of the flats by many financial institution and banks including (1) Plaintiff, (2) PNB Housing Finance Ltd., (3) HDFC Bank Ltd., (4) Axis Bank Ltd. and (5) FBL Bank finance company. The Counter claimants approached Plaintiff for grant of loan after getting the flat finalized & booked by depositing a sum of Rs. 5 Lakh through cheque with defendant no. 3 and thereafter, Plaintiff considering the documents and income proofs filed by the Counter claimants, approved and granted the loan to Counter claimants.
(II) The plaintiff has no role at all regarding the booking/allotment of the subject flat. The plaintiff granted and sanctioned the loan facility to the counter claimants on the basis of the documents submitted by them.
The plaintiff had disbursed the loan amount regarding subject flat to defendant no. 3, only after Counter claimant produced the receipt against the payment of margin money of Rs.5 lakhs paid to defendant no.3. The Counter claimants had already purchased/booked the subject flat with defendant no. 3 and Counter claimant/ defendant no. 1 was already a member with the society/builder i.e. defendant no.3.
Page 12 of 36
Digitally
signed by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2024.08.24
18:25:21
+0530
(III) The fraud has been committed by defendant no.3 by issuing multiple share certificates, allotment letters to the home buyers. As per the loan documents executed and submitted by Counter claimants, the said flat was allotted in the name of Counter claimant/defendant no.1. The counter claimants/defendant no. 1 and 2 had approached the Plaintiff for grant of loan after assuring themselves and inquiring about the status and nature of the property which was to be purchased by them. The plaintiff, after going through the documents and repaying capacity of Counter claimants, granted/sanctioned/advanced loan to them and was in no way concerned with the transaction of purchase of the property. The Plot was allotted by Greater Noida Authority and there is question of title of the flat i.e. NEC/Search report, as the project was under construction. The flat was allotted by way of unregistered agreement cum allotment letter and was not allotted by way of any registered document. The plaintiff has no role at all regarding the booking/allotment of the subject flat.
(IV) The Plaintiff disbursed loan regarding the subject flat to the Counter claimants/ defendant no. 1 and 2, after Counter claimants produced the agreement cum allotment letter, share certificate, NOC from society and receipts against the payment of margin money of Rs.5 lakhs to the society/builder i.e. defendant no.3 and Counter claimant/ defendant no.1 had already purchased/booked the subject flat and she was already a member with the society i.e. defendant no.3. The EMIs were paid as per the terms and conditions of the loan documents since the loan was advanced to Counter claimants. The plaintiff came to know about the multiple allotments and non-construction of the flats Page 13 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:25:28 +0530 only in the year 2011. It is further stated that Counter claimants are liable to pay the amount of Rs.26,34,872.27/- along with pendente-a- lite and future interest @ 18% and other charges to Plaintiff in terms of the loan documents as they have availed a loan from plaintiff.
(V) The Counter claimants have taken the loan and they even paid their EMIs upto a certain period but subsequently they stopped paying their installments with oblique motive and they have no right at all to withhold the repayment of the loan amount. The Counter claimant nos.
1 and 2 by paying/depositing the installments have admitted the grant of loan after execution of loan documents and cannot circumvent their liability by raising false and frivolous allegations.
9. Pleadings in the present suit as well as counter claim was completed and on 16/12/2019 issues were framed, however, the issues of main suit were framed in Counter claim and issues of Counter claim were framed in the main suit. Vide Order dated 29/05/2024, the same was rectified and issues framed in main suit are treated as issues framed in counter claim and issues framed in Counter claim are treated as issues framed in main suit. The following issues are treated to be framed in the main suit which are as under:-
(1) Whether plaintiff is entitled to recovery of Rs.26,34,872.27/-, as prayed? OPP (2) Whether plaintiff is entitled to pendente-lite and future interest on the said amount and if so, to what extent and for what period? OPP (3) Relief.Page 14 of 36 Digitally signed by DEEPANKER
DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:25:35 +0530
10. The following issues are treated to be framed in the counter claim which are as under:-
(1) Whether the counter claimant is entitled to the relief as prayed for? OPP (2) Whether the counter claimant is entitled to the relief as prayed for? OPP (3) Relief
11. Vide Order dated 01/06/2023, it was ordered that evidence in the main suit and counter claim shall be recorded in C.S. No. 211/2016, being common and shall be read in both the cases i.e. C.S. No. 211/2016 and C.S. No. 469/2017.
12. Plaintiff to prove his case examined only one witness i.e. I. PW-1 deposed as follows which is as under:-
(i) PW-1 Sh. Manoj Kumar filed his evidence affidavit. On 16/08/2022, PW-1 tendered his evidence by way of affidavit as exhibited as Ex.PW1/A and also relied on following documents i.e. (1) Copy of authority letter dated 09/08/2021 - Ex.PW1/1(OSR), (2) Copy of authority letter dated 13/05/2014 - Ex.PW1/2(OSR), (3) Copy of GPA in favour of Smt. Sunita - ExPW1/3(OSR), (4) Loan application furnished by defendant no.1 - Ex.PW1/4, (5) Original receipt dated 09/09/2008 for Rs.5 lakhs - Ex.PW1/5, (6) Loan offer letter dated 15.10.2008 - Ex.PW1/6, (7) Loan agreement dated 17/10/2008 -
Ex.PW1/7, (8) Original Tripartite agreement - Ex.PW1/8, (9) Original Page 15 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:25:43 +0530 share certificate no. 276 dated 09/09/2008 - Ex.PW1/9, (10) Original agreement cum allotment letter dated 09/09/2008 - Ex.PW1/10, (11) Legal notice dated 31/12/2013 along with four postal receipts and AD Card - Ex.PW1/11 to Ex.PW1/16 & (12) Computer generated statement of account - Ex.PW1/17 (objected by Ld. counsels for defendants as to the mode of proof). PW-1 was cross examined at length by Ld. Counsel for defendants no.1 and 2 on 10/01/2023.
(ii) PW-1 was cross examined by Ld. counsel for defendant wherein he submitted that he joined the plaintiff's company in September 1995 as Assistant Manager. He further submitted that he did not remember that when Sh. Y. Visvanath Gowd, Managing Director of plaintiff's company joined the company. He admitted the suggestion that authority letter dated 09/08/2021 and GPA along with Ex.PW1/1 did not having the contents in regard of the present case and the name of the court. He further submitted that the loan documents in the present case did not bear his signatures. He further deposed that he was aware regarding the project qua Golf Course Society. He further submitted that there was 140 flats to be constructed by the Golf Course Society.
He deposed that he did not remember how many flats has been financed by plaintiff's company. He deposed that he can produce the record pertaining to the financed flats by the LIC. He deposed that he was aware that the flats had been allotted multiple times. He deposed that he could not say whether the complaints made by complainants against Golf Course Society was maintained separately or individual. He deposed that LIC made complaint against the builder in April 2012 but he did not file the same in the present case and he was also not aware regarding said complaint.
Page 16 of 36
Digitally
signed by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2024.08.24
18:25:50
+0530
(iii) He deposed that the project in question was not pre-financed by plaintiff's company. He deposed that he was not aware whether the project in question was pre-launched project or not. He deposed that he did not file non-encumbrance certificate. He voluntarily deposed that it was not done as was not required as the leased land was allotted by the Greater Noida Authority. He deposed that plaintiff's company was one of the complainants in the FIR no.62/12, however, he was not aware in regard of FIR no.65/12 and FIR no.143/12 which were lodged in the Crime Branch against plaintiff. He deposed that the loan was financed on the demand bases as it was society and with the consent of defendants no.1 and 2 the loan was disbursed to defendant no.3 in one time in October, 2008.
(iv) He deposed that the Golf Course Society handed over possession of the flat only one buyer i.e. Sh. Sanjay Kumar Singh financed by plaintiff's company. He admitted the suggestion that defendants no.1 and 2 did not receive the possession of flat in question as per my knowledge. He deposed that he had filed the statement of account Ex.PW1/17. He admitted the suggestion that statement of account Ex.PW1/17 did not bear stamp and signature of any official. He admitted the suggestion that EMIs had been paid by defendants no.1 and 2 to plaintiff which are already mentioned in the statement of account Ex.PW1/17. He deposed that flat in question was never mortgaged to plaintiff's company. He denied the suggestion that plaintiff's company shall recover the loan amount by selling out the flat in question. He deposed that plaintiff's company did not take any steps against defendant no.3 to recover the loan amount except the present case. He admitted the suggestion that the loan application Ex.PW1/4 & Page 17 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:25:56 +0530 Tripartite Agreement Ex.PW1/8 did not bear any date. He admitted the suggestion that Tripartite Agreement Ex.PW1/8 did not bear stamps of the plaintiff's company official. He admitted the suggestion that agreement cum allotment letter Ex.PW1/10 was only in favour of defendant no.1 and there was no witness.
(v) He deposed that plaintiff's company had filed the document Ex.PW1/4 which prove that defendant no.2 was also borrower in regard of the present suit. He deposed that sanction letter/loan offer letter Ex.PW1/6 was signed by Alok Geol, Manager of the plaintiff's company at point A and he is still working with plaintiff's company. He denied the suggestion that he had never worked with Sh. Alok Goel. He denied the suggestion that the loan in question was sanctioned and disbursed in a fraudulent manner by plaintiff's company in collusion and convenience of defendant no.3. He denied the suggestion that plaintiff's company did not provide the details/fates of complaint lodged by plaintiff's company in the EOW Cell as the loan in question was sanctioned and disbursed in a fraudulent manner by plaintiff's company in collusion and convenience of defendant no.3.
(vi) He admitted the suggestion that he had not filed the certificate under Section 65B in regard of payment paid by defendant no.1. He denied the suggestion that plaintiff deliberately not produced the person who had advanced loan to defendant as witness in this case as they have manipulated the document.
13. On 10/01/2023, plaintiff evidence was closed and the matter was listed for defendant evidence.
Page 18 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date: 2024.08.24 18:26:02 +0530
14. Defendants no.1 and 2 to defend their case have examined three witnesses i.e. I. DW-1 deposed as follows which is as under:-
(i) DW-1 namely Ms. Monika Vats filed her evidence affidavit. On 01/06/2023, DW-1 tendered her evidence by way of affidavit as exhibited as Ex.DW1/X and also relied on following documents i.e. (1) Calculation sheet of installments and principle amount - Ex.DW1/1.
DW-1 was cross examined by Ld. counsel for plaintiff at length on 20/10/2023.
(ii) DW-1 was cross examined by Ld. counsel for plaintiff wherein she admitted the suggestion that the subject flat was booked by her husband. She admitted the suggestion that they had paid a sum of Rs.5 lakh from their own pocket and for remaining payment, she with her husband in joint name took a loan from plaintiff's company. She admitted the suggestion that the entire affair regarding subject flat was looked after by her husband. She admitted the suggestion that all the EMIs regarding subject loan had been paid by him through HDFC Bank. She admitted the suggestion that she had paid EMIs from December, 2008 till October, 2012 and thereafter no EMI has been paid. She admitted the suggestion that she stopped paying EMI because the builder did not give him possession of the subject flat. She denied the suggestion that the delivery of possession is not the responsibility of plaintiff. She denied the suggestion that she has no right to stop the payment of EMI due to above reason as plaintiff's company was only a financier. She denied the suggestion that there was no collusion at all of any kind whatsoever on the part of plaintiff's company with defendant Page 19 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:26:10 no.3. She denied the suggestion that she had not placed on record any document in support of her allegation levelled upon plaintiff's company.
(iii) She denied the suggestion that complaint dated March, 2017 has been filed by her just as a tool regarding counter-blast to the present suit. She denied the suggestion that complaint March, 2017 to EOW was made after receipt of summons of the present suit. She deposed that the address mentioned on legal notice dated 31.12.2013 is correct.
She deposed that she did not know whether she had given any reply of the notice to plaintiff's company. She deposed that she did not know whether they had written any letter to plaintiff's company regarding any claim/amount payable by plaintiff's company to them. She voluntarily deposed that the entire affairs were being dealt with by her husband. She denied the suggestion that she is not entitled to any amount from plaintiff's company. She denied the suggestion that no demand in writing was ever made by her to plaintiff's company as she is not entitled to any amount from the plaintiff's company. She denied the suggestion that she had wrongly withheld the payment of outstanding loan amount to plaintiff's company. She denied the suggestion that plaintiff's company is entitled to the suit amount along with interest as claimed in suit.
II. DW-2 deposed as follows which is as under:-
(i) DW-2 namely Sh. Amit Vats filed his evidence affidavit. On 01/06/2023, DW-2 tendered his evidence by way of affidavit as exhibited as Ex.DW2/X and also relied on following documents i.e. (1) Calculation sheet of installments and principle amount which is already Page 20 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:26:22 exhibited as - Ex.DW1/1. DW-2 was cross examined by Ld. counsel for plaintiff at length on 14/19/2023.
(ii) DW-2 was cross examined by Ld. counsel for plaintiff wherein he deposed that the subject flat was booked by him in the name of his wife namely Smt. Monika Vats in the year 2008. He admitted the suggestion that he had booked the subject flat by way of booking amount of Rs.5 lakhs through bearing no.105168 as per receipt Ex.PW1/5. He deposed that the total cost of the subject flat was Rs.25 lakhs. He deposed that as far as question of remaining amount of subject flat is concerned, he took the loan from LIC Housing Finance vide application Ex.PW1/4.
He admitted the suggestion that he had paid all the EMIs regarding this loan to LIC Housing Finance from his wife's bank account with HDFC Bank, Vishwas Nagar, Delhi. He deposed that the EMI amount was Rs.21,320/. He admitted the suggestion that the first EMI regarding subject loan was paid on 01/12/2008 and last installment was paid on 05/10/2012 and thereafter no EMI has been paid. He admitted the suggestion that all the EMIs were paid by ECS mode. He admitted the suggestion that all the EMIs paid by him in this account are duly reflected in the statement of account Ex.PW1/17. He deposed that after October, 2012, he stopped paying his EMIs because he was informed that the builder and bank and financial institutions had committed some fraud. He deposed that he got the said information from other buyers in the subject project. He deposed that he could not tell the name of any such buyer. He denied the suggestion that he has no right to stop the payment of EMIs to LIC HF who has just financed the subject loan.
(iii) He was shown a document/complaint dated 28/03/2017 which is Page 21 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:26:29 +0530 already marked as Mark A. After seeing the document, he deposed that he had not made any other complaint besides Mark A. He denied the suggestion that this complaint was a manipulated one which was done after receipt of summons of present case as a counter blast to the present suit. He admitted the suggestion that he had not filed any court case qua LIC HF as stated by him in para no.7 of his affidavit. He denied the suggestion that there was no connivance at all on the part of LIC HFL and averments made by him in this regard in his affidavit are false and incorrect. He denied the suggestion that he had not placed any documentary proof regarding the said connivance on the part of the officials of the LIC HF.
(iv) He admitted the suggestion that the address mentioned in Ex.PW1/11 was correct but it is now changed approximately three years ago. He deposed that he did not remember whether he had given any reply to the notice Ex.PW1/11. He denied the suggestion that he had not given any reply to the notice because had had no defence in the matter. He denied the suggestion that he had wrongly withheld repayment of loan amount. He deposed that he had not filed any calculation regarding the amount claimed by him in para no.11 of his affidavit. He deposed that he had claimed this amount because he had not received possession of the subject flat from the builder. He admitted the suggestion that he had not written any letter or sent any notice to LIC HFL regarding the said claim amount as stated in para no.11 of his affidavit. He denied the suggestion that the counter claim is just a counter blast to the suit filed by plaintiff. He denied the suggestion that his counter claim is time barred as the last payment of EMI was made in the subject loan account in October, 2012. He denied Page 22 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:26:34 +0530 the suggestion that he had failed to prove his counter claim qua LIC HF. He denied the suggestion that the amount claimed in counter claim is false and frivolous.
III. DW-3 deposed as follows which is as under:-
(i) DW-3 namely Inspector Vijay Kasana, Belt no.D-4667, presently posted at EOW, Mandir Marg, New Delhi, who was the summoned witness. He brought the copy of the FIR bearing no.62/12 along with final report running into 93 pages from the records of PS EOW, Mandir Marg - Ex.DW3/A (Colly.), copy of the FIR no.65/2012 along with final report running into 40 pages from the records of PS EOW, Mandir Marg - Ex.DW3/B (Colly.) & copy of the FIR no.143/2012 along with final report running into 33 pages from the records of PS EOW, Mandir Marg - Ex.DW3/C (Colly.). He was not cross examined by Ld. counsel for plaintiff.
15. On 03/02/2024, defendant evidence qua defendant no. 1 and 2 was closed. The Defendant No. 3 was proceeded ex-parte in C.S. No. 211/2016 vide Order dated 26/08/2017 and in C.S. No. 469/2017 vide Order dated 20/12/2023. No written statement has been filed by defendant no. 3 in both the cases. The matter was listed for final arguments.
16. Final Arguments were heard on 29/05/2024 and the present matter was adjourned for pronouncement of judgment.
17. It was argued by the Ld. Counsel for the Plaintiff that it was the defendant no. 1 and 2 who had approached the plaintiff for advancement of loan facility, after booking the subject flat with defendant no. 3 and payment of Rs. 5 Lakh as margin payment/ part Page 23 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:26:40 +0530 sale consideration amount. It was also argued that the defendant no. 1 and 2 had already become the member in the project of defendant no. 3 and deposited the original share certificate, original receipt and other documents and applied for the loan with plaintiff. It is further argued that considering the loan application, documents deposited by defendant no. 1 and 2 and verifying the financial capacity of defendant no. 1 and 2 to repay the loan amount, the plaintiff granted/ sanctioned loan of Rs. 20 Lakh and further an amount of Rs. 19,90,000/- was transferred to defendant no. 3 at the instance of defendant no. 1 and 2. It was further argued that the defendants no. 1 and 2 being the borrower also paid EMIs to plaintiff till October, 2012 and since November, 2012, the defendant no.1 and 2 have stopped making payments towards EMIs and made defaults. It was further argued that the Plaintiff had played no role in the allotment of subject flat and project of defendant no. 3 was not pre-approved by plaintiffs and it granted loan only after considering the application for loan filed by defendant no. 1 and 2. The officials of the plaintiff never worked in connivance with the defendant no. 3 and it was the defendant no. 3, who had made multiple allotments and committed fraud upon the financial institutions as well as upon the home buyers and three FIRs have already been registered in this regard. The loan granted by the plaintiff to defendant no. 1 and 2 is a public money and the plaintiff is entitled to recover the same with interest against the defendants. The defendants are liable to repay the suit amount along-with interest to the plaintiff as they have breached the terms and conditions of the loan agreements and tripartite agreement. It is further argued that the plaintiff is not liable to pay any amount claimed by the defendant no. 1 and 2 in their Counter claim and the Page 24 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:26:46 same is liable to be dismissed qua the plaintiff. It was also argued that the Counter claim is time barred because as per the statement of account, the defendant no. 1 and 2 lastly paid the EMI installment on 05/10/2012 and the present counter claim was filed on 30/03/2017 claiming the recovery of EMIs amount already paid to plaintiff. The counter claim have not being filed within three years from the date of last payment of EMI and therefore, the same is time barred and is liable to be dismissed.
18. The Ld. Counsel for the defendant no. 1 and 2 argued that the defendant no. 1 and 2 are not liable to pay any amount to plaintiff because defendant no. 3 in connivance with the officials of plaintiff and other financial institutions have made multiple allotments and some flats were also allotted which are not part of sanctioned plan (non- existence). It is further argued that the defendant no. 3 in connivance with the officials of financial institutions including plaintiff have played fraud upon the innocent home buyers and till date, no possession of the subject flat has been delivered by the defendant no. 3 to defendant no. 1 and 2. It was further argued that the lease of the plot allotted to defendant no. 3 for construction of flats including subject flat have already been cancelled by the Greater Noida Authority. It is further argued that defendant no. 3 has breached the terms and condition of tripartite agreement and agreements executed between them and therefore, it is only the defendant no. 3 who is liable to pay suit amount with interest to the plaintiff. It is further argued that the defendant/ counter claimant nos. 1 and 2 are also entitled for the amount claimed in the counter claim against the plaintiff and defendant no. 3 because till date the possession of the subject flat has not been Page 25 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:26:57 +0530 delivered to Defendant no. 1 and 2 by Defendant no. 3 and also because the lease of the plot allotted to Defendant no. 3 has been cancelled by the Greater Noida Authority.
APPRECIATION OF EVIDENCE AND DETERMINATION OF THE MAIN CASE (C.S. NO. 211/2016) ISSUE-WISE
19. ISSUE NO. (1):- Whether plaintiff is entitled to recovery of Rs.26,34,872.27/-, as prayed? OPP i. The following facts of the present case as well as Counter claim are not in dispute between the parties and also came on record, which are mentioned below:-
a. The defendant no. 3 i.e. M/s Golf Course Sahakari Awas Samiti Ltd., society registered under the Societies Act introduced a pre-launch project in the name of "Shiv Kala Charma Luxury Living Apartments" , Greater Noida, U.P. at plot No. 07, Sector-Pi-II, Greater Noida, (G.B. Nagar), Uttar Pradesh and the said plot was allotted by the Greater Noida Authority to defendant no. 3 vide Lease Deed dated 29/03/2005.
b. The Defendant no. 3 booked a flat/ unit no. 4054, on 5 th floor, measuring 1950 sq. ft. in Block/ Tower-T4, in Shiv Kala Charms, Plot no.07, Sector-Pi, II, Greater Noida, UP in the name of Defendant no. 1 for a total sale consideration amount of Rs. 25 Lakh out of which the Defendant no. 1 had paid Rs. 5 Lakhs as part sale consideration amount/ booking amount to Defendant No. 3 vide Receipt dated 09/09/2008 Ex. PW-1/5. The Defendant No. 3 also issued the share Page 26 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:27:04 +0530 certificate no. 276 dated 09/09/2008 Ex. PW-1/9 in favour of Defendant no. 1 and an agreement-cum-allotment Letter dated 09/09/2008 Ex.PW-1/10 was also executed between defendant no. 1 and defendant no. 3.
c. The Defendant no. 1 and 2 also do not dispute the execution, issuance and existence of the loan application form Ex.PW1/4, loan offer letter dated 15.10.2008 Ex.PW1/6 and loan agreement dated 17.10.2008 Ex.PW1/7 and their signatures on the said documents, on the basis of which the loan of Rs.20 lakhs was granted to defendants no.1 and 2 by plaintiff after depositing the original receipt Ex.PW1/5, original share certificate Ex.PW1/9 and original agreement cum allotment letter Ex.PW1/10. The execution of tripartite agreement Ex.PW1/8 is also not in dispute.
d. The loan facility of Rs. 20 Lakh was sanctioned and granted to the defendant no. 1 and 2 by plaintiff and out of the said amount, Rs. 19,90,000/- (Rupees Nineteen Lakh ninety thousand only) was disbursed to the defendant no. 3.
e. The defendant no.1 and 2 paid 47 EMIs of Rs.21,320/- each to the plaintiff from 05.12.2008 to 05.10.2012 and since November, 2012, the defendants no.1 and 2 stopped making payment of EMIs to plaintiff.
f. The defendant no.3 till date has not handed over the physical possession of the subject flat booked to defendant no.1 and 2.
g. The lease deed dated 29.03.2005 executed in favour of defendant no.3 by Greater Noida Authority for development of the project "Shiv Kala Chand" has been cancelled for non-payment of dues. The said fact Page 27 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:27:11 +0530 was taken on record vide Order dated 29/05/2024 as well as proved by DW-3 by producing the copy of FIR no. 62/12 along-with final report from the records of police station EOW, Mandir Marg- Ex.DW-3/A (Colly), copy of FIR no. 65/12 along-with final report from the records of police station EOW, Mandir Marg- Ex.DW-3/B (Colly) and copy of FIR no. 143/12 along-with final report from the records of police station EOW, Mandir Marg- Ex.DW-3/C (Colly) h. The defendant no.3 has also made multiple allotments of one unit to different persons and also made allotments of the flat/units which are not in existence and three FIRs i.e. FIR bearing no.62/2012, registered at PS EOW, FIR bearing no.65/12, registered at PS EOW and FIR bearing no.143/2012, registered at PS EOW, for the offences u/s 409/420/467/468/471/120-B IPC have been registered against the defendant no.3 and its associates.
ii. It has come on record that plaintiff has granted loan facility of Rs. 20 Lakh to defendant no.1 and 2 for purchasing the flat booked with defendant no.3 and after execution of necessary loan documents, an amount of Rs. 19,90,000/- was disbursed to Defendant no. 3. The defendant no. 1 and 2 also made payment of EMIs for the period from 05.12.2008 to 05.10.2012 and thereafter, the defendant no.1 and 2 made defaults in making payment of EMIs to plaintiff.
iii. The allotment of subject flat to defendant no. 1 by defendant no. 3, execution of loan agreements and Tripartite agreement Ex.PW-1/8 between the plaintiff and defendants no. 1 to 3 in respect to the subject flat and pursuant to the said agreements, disbursement of loan amount to defendant no. 3 has been admitted by the parties and has also been Page 28 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:27:16 proved in accordance with law. It has also come on record that since November, 2012 the Defendant No. 1 and 2 have stopped making payment of EMIs to Plaintiff. The loan amount sanctioned to the defendant no. 1 and 2 and pursuant to the same, amount disbursed to defendant No. 3 is a public money and considering the facts and circumstances of the case and evidence came on record, the plaintiff is entitled to recover the loan amount along-with interest because the loan amount is still outstanding.
iv. The clause no. 6 of the Tripartite agreement Ex. PW-1/8 provides
"6. In the event of cancellation of the allotment by the Society the society shall refund to the company forthwith the entire amount received from it." The plaintiff has filed two letters (at page no. 50 to
52) along-with the plaint at the time of institution of suit which were issued by the defendant no. 3 to the plaintiff and defendant no. 1, however, the same were not exhibited during evidence but as the same was filed by plaintiff and also not in dispute, then the same can be read against plaintiff. The clause no. 8 of the Letter at page no. 50 and 51 of the List of documents filed by plaintiff (issued by defendant no. 3 to plaintiff) denotes: "8. In the event of the cancellation of the above allotment/ purchase of a flat before actual possession thereof by him/ her either account of his/ her withdrawing the application or cancelling the allotment for any reasons whatsoever, the society undertakes to refund the LIC Housing Finance Ltd. the entire amount advanced by them on behalf of the allottee towards the cost/ value of the flat."
v. Combined reading of both the clauses, clearly establish that in case of cancellation of allotment/ purchase of a flat for any reason Page 29 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:27:23 +0530 whatsoever, the defendant no. 3 shall be liable to refund the entire amount advanced by plaintiff on behalf of the allottee.
vi. It has come on record, that till date the possession of the subject flat has not been delivered to the defendant no.1 and 2. The evidence and admission of parties further proves that the Lease deed dated 29/03/2005 executed by Greater Noida in favour of Defendant no. 3 Samiti for development of project "Shiv Kala Charms" has been cancelled on the pretext of non-payment of dues. The cancellation of the plot on which the apartment of the subject flat is to be constructed, makes the performance of agreements executed between plaintiff and defendant no. 1 to 3 impossible. The cancellation of lease deed dated 29/03/2005 establish that the agreements executed between plaintiff and defendants have been frustrated and the defendant no. 3 cannot fulfill its contractual obligations and therefore, it amounts to cancellation of allotment of flat because the performance of contract by defendant no. 3 has become impossible due to the fault of defendant no. 3. The agreements executed between plaintiff and defendants have been frustrated and therefore, co-joint reading of clause no. 6 of Tripartite Agreement Ex. PW-1/8 and clause no. 8 of the Letter issued by defendant no. 3 to plaintiff clearly establish that it the defendant no. 3 who is liable to refund the amount advanced by the plaintiff of behalf of defendant no. 1 and 2 to defendant no. 3.
vii. Considering the facts and circumstances of the case, material came on record and considering the fact that the Lease deed dated 29/03/2005 has been cancelled due to the fault of defendant no. 3 making the performance of contractual obligations by defendant no. 3, Page 30 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:27:29 +0530 under the agreements with plaintiff and defendant no. 1 and 2 in respect to subject flat, as impossible and frustrated, therefore, the Plaintiff is entitled to recover the suit amount i.e. Rs.26,34,872.27 only against the defendant no. 3. This Court also concludes that the defendant no. 1 and 2, being the home buyer, cannot be held liable to pay the suit amount to plaintiff because they cannot be held liable for the default of defendant no. 3 particularly when the defendant no. 3 is under legal obligation to refund the amount advanced to defendant no. 3, on behalf of defendant no.1 and 2, in lieu of the clause no. 6 of Tripartite agreement Ex. PW-1/8 and clause no. 8 of the letter issued by the defendant no. 3 to plaintiff.
viii. Issue no. (1) of the suit C.S. No. 211/2016 is decided accordingly in favour of plaintiff and against defendant no. 3.
20. ISSUE NO. (2):- Whether plaintiff is entitled to pendente-lite and future interest on the said amount and if so, to what extent and for what period? OPP i. The Plaintiff is a financial institution who advances loan under its various loan schemes to public on interest. The defendant No.1 and 2 also took loan from the plaintiff on interest @ 11.50% per annum for purchasing the subject flat from defendant no. 3 and the loan taken by them from plaintiff was disbursed to the defendant no. 3. The total amount of Rs. 24,90,000/- (Rupees Twenty Four Lakh Ninety Thousand only) had been received by the defendant no. 3 towards the total cost of the subject flat from defendant no. 1 (i.e. Rs. 5 Lakh) and plaintiff on behalf of defendant no.1 and 2 (i.e. Rs. 19,90,000/-) but till Page 31 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:27:35 +0530 date no possession of the subject flat has been delivered by defendant no. 3 to defendant no. 1 and 2. Moreover, it has come on record that the Lease Deed dated 29/03/2005 has been cancelled by the Greater Noida Authority on the ground of non-payment of dues, making the performance of contractual obligation by defendant no. 3 impossible. The Defendant no.3 has not utilized the funds raised by it from public appropriately and properly which clearly proves that defendant no. 3 has utilized the same into its real estate business and further earned profits and therefore, the Defendant no. 3 is also liable to pay interest on the amount of Rs.26,34,872.27 from the date institution of the present suit till its realization, to the plaintiff.
ii. Considering the factual matrix of the case, material came on record, above-observations and also considering the fact that the plaintiff granted loan to defendant no. 1 and 2 @ 11.50% per annum in the year 2008 and currently the rate of interest on the loans given by the Nationalized Bank is not less than 11.50% per annum, therefore, this Court deem it appropriate to award interest @ 11.50% per annum on the amount of Rs.26,34,872.27 from the date institution of the present suit till its realization, in favour of the plaintiff and against defendant no. 3.
iii. Issue No. (2) of the of the suit C.S. No. 211/2016 is decided accordingly in favour of plaintiff and against defendant no. 3.
21. Relief Considering the facts and circumstances of the case and above observations, suit of the plaintiff is decreed and it is held that plaintiff Page 32 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:27:43 +0530 is entitled for money decree to recover a sum of Rs.26,34,872.27 along with interest @ 11.50% per annum from the date institution of the present suit till its realization, against defendant no. 3 i.e. M/s Golf Course Sahakari Awas Samiti Ltd. Cost of the suit is also awarded to the plaintiff against defendant no.3.
22. The suit of the plaintiff i.e. CS No.211/16 is accordingly decreed and disposed of.
23. Decree sheet be prepared accordingly.
APPRECIATION OF EVIDENCE AND DETERMINATION OF THE COUNTER CLAIM (C.S. NO. 469/2017) ISSUE-WISE
24. ISSUE NO. 1:- Whether the counter claimant is entitled to the relief as prayed for? OPP AND ISSUE NO. 2:- Whether the counter claimant is entitled to the relief as prayed for? OPP i. The Defendants/Counter claimants no. 1 and 2 by way of present Counter claim is claiming the recovery of Rs. 42,25,335/- against the plaintiff and defendant no. 3 along-with interest @ 11.50% per annum. The counter claimants are claiming the aforesaid amount by two identical prayers for recovery i.e. (1) Recovery for a sum of Rs.14,88,580/- along with interest & (2) Rs.27,36,755/- along with interest.
ii. It has come on record that defendants/counter claimants no.1 and 2 have paid 47 EMIs of Rs.21,320/- each to the plaintiff in respect to Page 33 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:27:50 +0530 the loan taken by them for purchasing the subject flat. The total amount of EMIs paid by defendant no.1 and 2 to plaintiff comes to Rs.10,02,040/-. It has also come on record that defendant no.1 has paid Rs.5 lakhs to the defendant no.3 at the time of booking of the subject flat vide receipt bearing No.979 Ex.PW1/5. It has also come on record that plaintiff has disbursed an amount of Rs.19,90,000/- to defendant no.3. Till date the defendant no.3 has not delivered the possession of the subject flat to the counter claimants/defendant no.1 and 2. The defendant no.3 has misused the amount taken from defendant no.1 and plaintiff and therefore, defendant no.3 is liable to return the said amount with interest to the counter claimants/defendants no.1 and 2.
iii. The counter claimants/defendants no.1 and 2 have not produced any substantial evidence to show their entitlement to recover the entire amount of Rs.42,25,335/- against plaintiff and defendant no.3. It is also noted that counter claimants/defendants no.1 and 2 had also not bifurcated the heads under which they are claiming the recovery of Rs.42,25,335/-. The entire counter claim is silent to substantiate the relief claimed for recovery of Rs.27,36,755/- by the counter claimants/defendant no.1 and 2. No evidence has been led by the counter claimants/defendants no.1 and 2 to establish that they are entitled for entire amount of Rs.42,25,335/-, however, as observed above and considering the default of defendant no.3 and factual matrix of the case, this court is of the considered opinion that the counter claimants/defendants no.1 and 2 are entitled for money decree to recover a sum of Rs.15,02,040/- along with interest @ 11.50% per annum from the date of institution of the counter claim till its realization against defendant no.3 i.e. M/s Golf Course Sahakari Awas Page 34 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:27:58 +0530 Samiti Ltd. because the defendant no.3 has not delivered the possession of the subject flat to the counter claimants/defendants no.1 and 2 till date and they have also not recalled the agreement-cum-allotment letter Ex.PW1/10 and share certificate Ex.PW1/9 till date.
iv. Considering the facts and circumstances of the case & above observations made while determining the issues of the main suit as well as counter claim, this court concludes that the counter claimants/defendant no.1 and 2 are entitled for money decree to recover a sum of Rs.15,02,040/- along with interest @ 11.50% per annum from the date of institution of the counter claim till its realization against defendant no.3 i.e. M/s Golf Course Sahakari Awas Samiti Ltd.
v. Issue No.1 and 2 of the counter claim are accordingly decided in favour of counter claimants/defendant no.1 and 2 and against the defendant no.3.
25. Relief Considering the facts and circumstances of the case and above observations, suit of the counter claimants/defendants no.1 and 2 is partly decreed and it is held that counter claimants/defendants no.1 and 2 are entitled for money decree to recover a sum of Rs.15,02,040/-
along with interest @ 11.50% per annum from the date of institution of the counter claim till its realization against defendant no.3 i.e. M/s Golf Course Sahakari Awas Samiti Ltd. Cost of the counter claim be also awarded in favour of counter claimants/defendants no.1 and 2 and against defendant no.3.
26. The counter claim i.e. CS No.469/17 is accordingly partly Page 35 of 36 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.08.24 18:28:03 decreed and disposed of.
27. Decree sheet be prepared accordingly.
28. Files of the main suit i.e. CS No.211/16 and counter claim i.e. CS No.469/17 be consigned to record room after due compliance.
Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date: Announced in the open Court 2024.08.24 18:28:15 on 24th August, 2024 +0530 (Deepanker Mohan) District Judge-04 Shahdara District/KKD Courts/Delhi 24.08.2024 Page 36 of 36