Delhi District Court
State Bank Of India vs Dilip Singh on 13 February, 2024
IN THE COURT OF SH. SANJEEV KUMAR SINGH, DISTRICT
JUDGE(COMMERCIAL COURT)-13, CENTRAL DISTRICT, TIS
HAZARI COURTS, DELHI
CS (COMM.) No. 339/2022
CNR No. DLCT01-001697-2022
IN THE MATTER OF:
STATE BANK OF INDIA,
A Body Corporate Constituted
under the State Bank of India Act, 1955
having its Head Office/Central Office/Corporate
Office at State Bank Bhavan, Madam Cama Road,
Mumbai-440024, one of its Local Head Offices at 11,
Sansad Marg, New Delhi-01 and having one of its
Branches at Jhandewalan Extn, New Delhi-55 and
RACP at A1/24, Janakpuri, Nazafgarh Road,
New Delhi-110058
Through its Authorized Officer Ms. Deepika Mendiratta
.........PLAINTIFF
VERSUS
1. Mr. Dilip Singh
S/o Mr. Brij Raj Singh
R/o H.No. 1121, Vivekanand Nagar-4,
Ghaziabad, U.P-201001
Also at: Flat No. C-303, Hariom Complex, Sector-18
Plot No. 80, Kamothe, Navi Mumbai, Mumbai-410209
Office At: UCO Bank
Building, 359, Dr. D.N. Road, Fort,
Integrated Treasury Branch, Mumbai-400001
2. Manju J Homes India Limited
Through IRP Mr. Anurag Nirbhaya
(Having Registration No. IBBI/IPA-001-
State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 1 of total pages 19
IP-P-00870/2017-2018/11468)
At: 204, Sagar Plaza, Plot No. 19
District Centre, Laxmi Nagar, New Delhi-110092.
...........DEFENDANT
Date of Institution : 27.01.2022
Judgment Reserved on : 09.02.2024
Date of Decision : 13.02.2024
EX PARTE JUDGMENT
1. The Plaintiff bank has filed the present suit against the defendant
seeking recovery of Rs. 12,14,567/- as on 10.01.2022 alongwith cost,
expenses, pendente lite and future interest @ 7.80% per annum with
monthly rest till realization.
2. The version of the Plaintiff is that plaintiff is a body corporate
constituted under The State Bank of India Act, 1955(Act No. XXIII of
1955) having its head office at State Bank Bhawan, Madam Cama Road,
Mumbai-440024; that it is a body with perpetual succession and it can
sue and be sued in its own name; that it is engaged in the field of
banking having various local head offices; that one of its local head
office is at 11, Sansad Marg, New Delhi and having various branch
offices throughout India including one of its branch at Jhandewalan
Extensions, New Delhi-55 and RACPC at A1/24, Janakpuri, Nazafgarh
Road, New Delhi-110058.
3. It is further the version of the plaintiff that present suit has been
signed, verified and instituted by Ms. Deepika Mendiratta on behalf of
plaintiff bank, who was fully conversant with the facts of the present suit
and was competent & authorized to sign pleadings, Vakalatnama,
State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 2 of total pages 19
Affidavits, applications & executions and verify and institute the present
suit. It is pertinent to mention herein that Ms. Deepika Mendiratta was
substituted by Sh. Vikas, Assistant Manager on an application moved on
behalf of plaintiff bank in this regard, which was allowed by ld.
Predecessor vide order dated 03.09.2022.
4. It is further the version of the plaintiff that on re-organization
of set up of the State Bank of India, for the convenience of operation &
execution, RACPC at A-1/24, Janakpuri, Najafgarh Road, New Delhi-58
was introduced/established by the plaintiff bank for maintenance &
follow up of loan accounts of branches falling within its jurisdiction
including follow up and recovery of money involved in NPA Accounts
by institution of suit and/or other appropriate recovery measures as
applicable; that for practical purposes, RACPC at A-1/24, Janakpuri,
Najafgarh Road, New Delhi-58 has become the plaintiff bank including
the present suit hence RACPC at A-1/24, Janakpur, Najafgarh Road,
New Delhi-58 in place of Jhandewalan Extension, New Delhi-55 is filing
the present suit.
5. It is further the version of the plaintiff that plaintiff being one of
the scheduled bank of the Nation has been engaged in the business of
Banking whereas Mr. Dilip Singh the defendant No.1, who is borrower
had approached the plaintiff at its Jhandewalan Extension, New Delhi-
55 branch for granting of financial assistance by way of housing loan
facility under SBI Housing Loan Scheme for purchasing of " Flat No. H-
603, 6th Floor, Tower-H, Tye 2BHK, Red Apple Homez, Khasra No.
1109-1110, village Morta, NH-58, Raj Nagar Extension, situated at
State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 3 of total pages 19
Ghaziabad, Noida-201017, Uttar Pradesh, admeasuring area 875 Square
Feet, developed by defendant No. 2 and allotted to the borrower i.e.
defendant No.1, vide allotment letter dated 14.12.2014; that defendants
had submitted their identification, residence & income proof etc, to the
plaintiff in order to avail such facility.
6. It is further the version of the plaintiff that defendant No.2 is a
company registered under Companies Act, 1956, which was developing
& constructing the residential flats/complex in the name of "Red Apple
Homez" projects situated at Ghaziabad, Noid-201017(U.P); that
defendant No. 2 has constructed and developed many flats, which it has
put to sale to the public at large; that one of such flat has been allotted
by defendant No.2 to defendant No.1 after executing allotment cum flat
buyer agreement dated 14.12.2014 in the name of defendant No.1 only.
7. It is further the version of the plaintiff that defendant No.
2/Builder is in the process of being declared as insolvent or
builder/defendant company is deemed to have been declared insolvent
by Hon'ble National Company Law Tribunal vide matter M/s Gagan
Ferrotech Limited Vs. M/s Manj J Homes India Ltd; that even an
Interim Resolution Professional(IRP) has been appointed by concerned
Tribunal to process the claims and to take necessary steps as required
under the statute(i.e. insolvency and bankruptcy Code, 2016) in payment
of operational/other debts of the defendant company, therefore in
pursuance thereof, the concerned name has been incorporated in the
array of defendant No.2 in the present case.
State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 4 of total pages 19
8. It is further the version of the plaintiff that considering the
proposal, requirement & financial feasibility & viability of defendant,
plaintiff bank after processing their criteria sanctioned sum of Rs.
13,50,000/- on 04.03.2016, for purchasing the " Flat No. H-603, 6th
Floor, Tower-H, Tye 2BHK, Red Apple Homez, Khasra No. 1109-1110,
village Morta, NH-58, Raj Nagar Extension, situated at Ghaziabad,
Noida-201017, Uttar Pradesh, admeasuring area 875 Square Feet,
developed by defendant No. 2 for which defendant No.1 availed home
loan as borrower, returnable to the plaintiff with agreed EMI per month,
interest and other charges as applicable in accordance with the terms &
conditions of sanction contained in the arrangement letter dated
07.03.2016 and memorandum of loan agreement dated 07.03.2016; that
as per the terms and conditions of the loan, duly acknowledged by
defendant No.1, the loan was to be disbursed by the bank in favour of
defendant No.2.
9. It is further the version of the plaintiff that as per terms &
conditions for grants of the said Housing Loan Facility, the defendants
executed following documents in favour of plaintiff bank:-
1) Allotment letter/Flat Buyer Agreement.
2) SBI Loan Application.
3) Tripartite Agreement.
4) Agreement to Mortgage.
5) Operations Letter.
6) Memorandum of Loan Agreement.
7) Arrangement Letter.
8) Annexure-I
State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 5 of total pages 19
9) Sanction Letter.
10) Statement of Assets & Liabilities.
11) Letter for Transferable rights related to mortgage property.
12) Other related documents.
10. It is further the version of the plaintiff that defendants had
agreed to pay interest on the outstanding loan amount at the effective
rate of interest @ 9.55 p.a monthly rests subject to revision from time to
time as per Banking Guidelines and penal interest over the applicable
interest rate to be charged for the overdue amount in the event of default
and for the period of default; that defendants had undertaken & agreed
to repay the loan amount in 360 EMIs of Rs. 11,509/- per month.
11. It is further the version of the plaintiff that aforesaid housing
loan facility was availed by defendant by opening House Loan Account
No. 35622713381, but defendant committed defaults in repayment of
loan amount and failed to repay the EMI per month; that message was
conveyed to the defendant No.1 being borrower and having no response
from the side of defendants, ultimately the plaintiff bank had to declare
the said loan account as NPA on dated 04.06.2019.
12. It is further the version of the plaintiff that defendant No.1,
defendant No. 2 and plaintiff bank also jointly executed a Tripartite
Agreement dated 07.03.2016 to further secure the loan granted by
plaintiff bank to defendant No.1; that by way of above said tripartite
agreement the parties agreed that plaintiff bank shall have first lien over
the " Flat No. H-603, 6th Floor, Tower-H, Tye 2BHK, Red Apple Homez,
State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 6 of total pages 19
Khasra No. 1109-1110, village Morta, NH-58, Raj Nagar Extension,
situated at Ghaziabad, Noida-201017, Uttar Pradesh, admeasuring area
875 Square Feet; that defendant No. 2 also agreed that in the event of
default in repayment of loan and/or any other default which makes
defendant No.1 liable for repayment of the entire amount outstanding in
the said loan, defendant No.2 shall at the request of plaintiff bank be
under obligation to cancel the booking and pay all the amount received
by defendant No.2 on behalf of defendant No.1 to the plaintiff bank.
13. It is further the version of the plaintiff that after waiting for a
considerable period of time, the applicant bank left with no other
alternative but to recall the entire outstanding loan by serving legal
notice dated 01.09.2021 upon defendants, but no heed was paid by the
defendants to the request of applicant bank and the account remained
un-liquidated till date.
14. It is further the version of the plaintiff that defendants are
jointly and severally liable to pay the entire amount outstanding to the
loan account of defendant No.1, alongwith interest to the applicant bank
in view of the default in payment of loan by the defendant No.1.
15. It is further the version of the plaintiff that since defendant No.1
failed to make regular payment of the amount due, defendant No.2 has
failed to deliver possession of Flat No. H-603, 6th Floor, Tower-H, Tye
2BHK, Red Apple Homez, Khasra No. 1109-1110, village Morta, NH-
58, Raj Nagar Extension, situated at Ghaziabad, Noida-201017, Uttar
Pradesh, admeasuring area 875 Square Feet to defendant No.1 in terms
State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 7 of total pages 19
of Tripartite Agreement(TPA), therefore defendant No. 2 is liable to pay
the entire amount received by it on behalf of defendant No.1 to the
applicant bank; that otherwise also defendant No. 2 is liable to indemnify
the applicant bank in terms of TPA dated 07.03.2016 since it has failed to
complete the project & deliver the secured asset within the stipulated
time thereby violating the essential terms of the TPA and flat buyers
agreement; that defendant No.2 also failed to give regular updates on
construction of flats as per the terms of the Tripartite Agreement; that the
present status of the flats is that entire project is stand still and no
construction is underway; that as present the applicant bank's security is
at risk of being extinguished and process of declaring defendant No.
2/builder as insolvent is now underway, even IRP has also been
appointed, therefore the applicant has replaced defendant No.2 with IRP
under memo of parties.
16. It is further the version of the plaintiff that as per the
statement of account maintained by plaintiff bank, there is a debit
balance of Rs. 9,46,505/- as on 10.01.2022, exclusive of interest &
expenses which the defendants herein being borrowers are liable to pay
to the plaintiff; that account of defendant No.1 was declared as NPA on
04.06.2019 and from the date of account becoming NPA , the plaintiff
bank has not debited the interest from the Loan Account of defendants
and now defendants are liable to pay following amount to the plaintiff
bank:-
Outstanding amount as per statement
of account Rs. 9,46,505/-
Accrued interest upto the date of 10.01.2022 Rs. 2,51,510/-
State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 8 of total pages 19
Penalty upo the date of 10.01.2022 Rs. 16,552/-
------------------------
Total Rs. 12,14,567/-
------------------------
17. It is further the version of the plaintiff that plaintiff is also entitled to further interest @ 07.80% with monthly rest from date of institution of this suit till realization of entire dues.
18. It is further the version of the plaintiff that cause of action in favour of plaintiff and against the defendants firstly arose when a sum of Rs. 13,50,000/- was sanctioned on 04.03.2016; that it further arose on such date when first installment became due and deposited by defendants on 01.04.2016; that it further arose on 05.03.2019 when last installment was paid; that is further arose on different dates when plaintiff sent reminder of the outstanding payment to defendants; that it also arose on 01.09.2021 when legal notice was sent and cause of action is still subsisting.
19. It is further the version of the plaintiff that the loan documents were executed in favour of plaintiff bank at New Delhi and loan account of defendants is maintained at RACPC Janakpuri, New Delhi; that the housing loan agreement was executed and loan amount was sanctioned & advanced at Jhandewalan Extension, New Delhi-55 and hence this Court has jurisdiction to entertain, try and dispose the present suit.
20. It is further the version of the plaintiff that subject matter of the suit is a 'commercial dispute' as defined in Section 2(1)(c) of the State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 9 of total pages 19 Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015.
21. It is further the version of the plaintiff that suit of the plaintiff is within the limitation as the loan was sanctioned and granted on 04.03.2016, loan account was declared NPA on 04.06.2019, legal notice dated 01.09.2021 was served upon defendants through Speed Post and when defendants failed to repay the outstanding amount, Pre-Mediation proceedings were initiated by the plaintiff, but defendants did not provide their appearance on any date and therefore Non-Starter report dated 24.11.2021 was issued by DLSA.
22. It is prayed that decree for a sum of Rs. 12,14,567/- alongwith pendent lite and future interest @ 7.80% p.a with monthly rests from the date of filing of the suit till payment and/or realization and costs of the suit may be passed in favour of plaintiff and against the defendants jointly and severally.
Defendant is Exparte:-
23. The summons of the suit were sent to defendants, pursuant to which ld counsel for defendant No. 2 appeared before the Court on 08.06.2022 and apprised the Court that as per N.C.L.T order dated 02.09.2019, moratorium has been granted. He also filed copy of order dated 02.09.2019 passed by N.C.L.T. As per order dated 18.07.2022, my Ld. Predecessor observed that in view of the said N.C.L.T order, the proceedings against defendant No. 2 company was stayed but case was proceeded further against defendant No.1, who is the principal borrower.
State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 10 of total pages 19 As far as defendant No. 1 is concerned, summons of the suit sent to defendant No. 1 by way of ordinary mode could not be served upon the defendant No.1 and thereafter on an application u/o 5 Rule 20 CPC, defendant No.1 was served by way of publication in the newspapers "Rashtriya Sahara" dated 15.10.2022. However, despite service defendant No.1 did not cause appearance and was accordingly ordered to be proceeded ex-parte vide order dated 19.12.2022.
EVIDENCE & LIST OF DOCUMENTS:
24. The plaintiff bank has examined Sh. Vikas. Assistant Manager of plaintiff as its sole witness as PW-1.
25. PW-1 tendered his evidence by way of affidavit Ex. PW1/A in which he reiterated the contents of the plaint and relied upon following documents:-
(i) Copy of gazette notification is Ex.PW-1/1.
(ii) Loan application and proposal form is Ex.PW-1/2(Colly).
(iii) Copies of documents qua intended housing loan is Ex. PW-1/3 (Colly).
(iv) Original allotment letter cum flat buyer agreement is Ex.PW-1/4.
(v) Original Tripartite agreement is Ex.PW-1/5.
(vi) Memorandum of loan agreement for home loan is Ex.PW-1/6.
(vii) Arrangement letter is Ex.PW-1/7.
(viii) Sanction letter is Ex.PW-1/8.
(ix) Agreement to mortgage is Ex.PW-1/9.
(x) Operation letter is PW-1/10.
(xi) Annexure-1 is Ex.PW-1/11.
(xii) Statement of assets and liabilities is Ex.PW-1/12.
(xiii) Letter of transferable rights is Ex.PW-1/13.
State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 11 of total pages 19
(xiv) Copy of orders dated 02.09.2020 and 09.01.2020 passed by NCLT is Mark A.
(xv) Legal notice and postal receipts is Ex.PW-1/15. (xvi) Loan statement of defendant is Ex.PW-1/16. (xvii) Certificate u/s 2A r/w Section 65B is Ex.PW-1/17. (xviii) Certificate of accrued interest is Ex.PW-1/18.
26. I have heard the arguments advanced by the learned counsel for the plaintiff and perused the record. I have also gone through the written arguments filed on behalf of plaintiff.
27. At the very Outset, I may observe that the provisions of Section 2 (1) (c) (i) of Commercial Courts Act, 2015 are very clear which reads as under:
(c) "commercial dispute" means a dispute arising out of-
(i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;
(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including tenders;
(vii) agreements relating to immovable property used exclusively in trade or commerce;
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x)management and consultancy agreements;
(xi) joint venture agreements;
(xii) shareholders agreements;
State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 12 of total pages 19
(xiii) subscription and investment agreements pertaining to the services industry including outsourcing services and financial services;
(xiv) mercantile agency and mercantile usage;
(xv) partnership agreements;
(xvi) technology development agreements; (xvii) intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits;
(xviii) agreements for sale of goods or provision of services;
(xix) exploitation of oil and gas reserves or other natural resources including electromagnetic spectrum; (xx) insurance and re-insurance;
(xxi) contracts of agency relating to any of the above; and (xxii) such other commercial disputes as may be notified by the Central Government.
28. The provisions of Section 2(1) (c)(i) of the Commercial Courts Act, 2015 as above are very much clear. It is important to notice that the crucial expression that connects the classes of persons i.e. merchants, bankers, financiers and traders to the expression mercantile documents are the words "such as".
29. Hon'ble Calcutta High Court in Ladymoon Towers Private Ltd. Vs. Mahendra Investment Advisors Private Limited(I.A No. G.A 4 of 2021 in C.S 99 of 2020 order dated 13.08.2021). After setting out the dictionary meanings of the expressions "merchants" "bankers" "traders" and "financiers" the learned judge proceeded to observe as under:
"The definition section of the 2015 Act only contemplates a "commercial dispute" and not any other form of dispute where the basis of disagreement between the parties has a non-commercial cause. The graduation of disputes in Section 2(1)(c) taking into State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 13 of total pages 19 account all possible forms of agreements from which a "commercial dispute" may arise, makes it clear that the framers of the statute gave emphasis on the commercial flavour of the transaction as opposed to agreements entered into between parties without a commercial purpose. The qualification of the person being a Merchant, Banker, Trader or Financier imparts an unimpeachable commercial flavour to the transaction and the resulting dispute. The insolvency and Bankruptcy Cod, 2016, for example, defines a dispute from a broader perspective as any suit or arbitration proceedings relating to an existing debt - Section 5(6)(a). The commercial purpose would generally mean a transaction by which a person's commercial or economic interests may be advanced and would result in an economic benefit to that person. It would not include an agreement where profit-making is an incidental outcome of the transaction or may happen by accident. Although, a "hand loan", for example, is given by a person or entity to another with the expected outcome of the principal sum being returned with interest, the essential commercial flavour in such a loan may be lost by reason of the informal terms under which the money is lent and advanced and the consequent uncertainty which may result therefrom."
Therefore, the facts which are alleged in the plaint come under the commercial dispute.
30. Now, the next question is whether this Court has the pecuniary jurisdiction to adjudicate the matter which is in dispute. The provisions of Section 3 of Commercial Courts Act, 2015 provides that:
Section 3: Constitution of Commercial Courts:
3. (1) The State Government, may after consultation with the concerned High Court, by notification, constitute such number of Commercial Courts at District level, as it may State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 14 of total pages 19 deem necessary for the purpose of exercising the jurisdiction and powers conferred on those Courts under this Act:
[Provided that with respect to the High Courts having ordinary original civil jurisdiction, the State Government may, after consultation with the concerned High Court, by notification, constitute Commercial Courts at the District Judge level:
Provided further that with respect to a territory over which the High Courts have ordinary original civil jurisdiction, the State Government may, by notification, specify such pecuniary value which shall not be less than three lakh rupees and not more than the pecuniary jurisdiction exercisable by the District Courts, as it may consider necessary.] 3[(1A) Notwithstanding anything contained in this Act, the State Government may, after consultation with the concerned High Court, by notification, specify such pecuniary value which shall not be less than three lakh rupees or such higher value, for whole or part of the State, as it may consider necessary.]
31. The Commercial Courts Act was amended on 03.05.2018 and by virtue of the amendment and by virtue of the amendment and by virtue of notification, the pecuniary jurisdiction of the commercial courts shall not be less than Rs. 3,00,000/-. In the present case, the claimed amount as mentioned in the plaint is of Rs. 12,14,567/- and as such this Court is having jurisdiction to adjudicate the matter which is in dispute.
32. This Court has territorial jurisdiction to try the present suit as the above mentioned documents were executed in favour of plaintiff bank at New Delhi. Housing Loan Agreement for availing the said housing loan was executed and the loan amount was sanctioned and advanced at Jhandewalan Extension, New Delhi-55 and are payable at Delhi which falls within the territorial jurisdiction of this Court.
State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 15 of total pages 19
33. Perusal of record reveals that before filing of the present suit, the Pre-Institution Mediation was initiated by the plaintiff bank and the Non-Starter Report dated 24.11.2021 is on the record, which reflects that notices were issued to the defendants for 30.10.2021 and 24.11.2021. The notices were issued to the opposite party for both the above said dates for obtaining consent to participate in mediation process. On both the said dates, Ms. Vaishali & Sh. Avijit Singh, ld counsels for plaintiff bank were present, but none was present on behalf of respondents and therefore Non-Starter report dated 24.11.2021 was issued by CDLSA on 18.12.2021.
34. Perusal of record reveals that defendant made the payment of last installment on 05.03.2019 and application for pre-institution was moved on behalf of plaintiff on 14.09.2021 and present suit was filed on 27.01.2022, therefore the suit of the plaintiff is well within limitation.
35. Ld counsel for plaintiff has also filed written arguments in the present case. I have also gone through the same throughly.
36. Ld. counsel for plaintiff submitted that defendant No.1 has already been proceeded exparte vide order dated 19.12.2022; that proceedings against defendant No.2 already stayed vide order dated 18.07.2022 since defendant No.2 is under liquidation before NCLT and as long as moratorium continues, no proceedings can be taken against the company, but defendant No.1 is a principal borrower hence he can not discharged from his liability.
State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 16 of total pages 19
37. It is pertinent to mention herein that in the present case an application was also filed on behalf of plaintiff for substitution/impleadment of necessary party i.e. IRP Sh. Anurag Nirbhaya(Manju J Homes). However, in view of submissions of ld counsel for plaintiff made on 09.02.2024, same was disposed of as withdrawn.
38. In view of the above discussion, there is no hitch in holding that the entire testimony of PW-1 has gone unrebutted in view of which the claim of plaintiff has gone undisputed and uncontroverted and there is no reason to disbelieve the same. Perusal of Ex. PW1/2(colly) reveals that defendant No. 1 had applied for home loan in the plaintiff bank on 20.02.2016 and as per Ex. PW1/16 i.e. loan statement of defendants, the closing balance as on 10.01.2022 in the loan account of defendants was Rs. 9,46,505/-. Hence, plaintiff bank has successfully proved that an amount of Rs.9,46,505/- was outstanding against defendants on 10.01.2022. Plaintiff has also claimed interest of Rs. 2,51,510/- upto the date of 10.01.2022 and penalty of Rs.16,552/- upto the date of 10.01.2022.
39. Keeping in view the facts and circumstances of the case, this Court is of the opinion that defendant No.1 being the Principal Borrower is liable to pay the outstanding amount to the plaintiff bank since it is defendant No.1, who approached the plaintiff bank for availing housing loan facility. The home loan was sanctioned to defendant No. 1 on 04.03.2016 and all the documents were voluntarily and consciously signed by defendant No.1 after understanding the implication of the State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 17 of total pages 19 same. It is pertinent to mention herein that although there is tripartite agreement between defendant No.1, defendant No.2 and the plaintiff bank, but since defendant No. 2 is under liquidation before the NCLT and as long as the moratorium continues, no proceedings can be taken against the company. It is also to be noted herein that as per the contention made on behalf of plaintiff bank that plaintiff bank had issued several reminders to defendant No.1 about the outstanding sum which was due upon him, but neither he has sent any reply nor he had communicated to the plaintiff bank in sufficient time. Further despite service of legal notice Ex. PW1/15, defendant No.1 has not approached plaintiff bank for settling his dues. Defendant No.1 has not opted to appear before the Court despite service by way of publication in the newspaper 'Rashtriya Sahara' dated 15.10.2022. Even otherwise, Bank is a Trustee of Public Fund and it can not compromise the public interest for benefiting the individuals and those who take loan and avail financial facility from the Bank are duty bound to repay the amount strictly in accordance with the terms of the contract. Hence, in the present case, defendant No.1 can not be absolved of paying the outstanding loan amount.
40. Keeping in view the above discussion, the present suit is hereby decreed in favour of plaintiff and against the defendant No. 1 and it is held that plaintiff is entitled to recover a sum of Rs. 12,14,567/- from defendant No1. So far as the interest component is concerned, the plaintiff has claimed interest @ 07.80% per annum which is in my considered opinion is excessive and, therefore, in the interest of justice, the plaintiff is entitled for recovery of the amount of Rs. 12,14,567/-
State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 18 of total pages 19 along with pendente-lite & future interest @ 6% per annum from the date of filing of the suit till realization of the amount from defendant No.1.
41. Cost of the suit is also awarded in favour of the plaintiff bank.
42. Decree sheet be prepared accordingly.
43. File be consigned to Record Room after due compliance.
Digitally signedSANJEEV by SANJEEV KUMAR SINGH KUMAR Date:
Announced in the open court SINGH 2024.02.13
15:46:44 +0530
Dated: 13.02.2024
(Sanjeev Kumar Singh)
District Judge, Commercial Court-13
Central District, Tis Hazari Courts,
Delhi/ 13.02.2024(MB)
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State Bank of India Vs. Dilip Singh & Anr. CS (Comm.) No.339/2022 20 of total pages 19