Delhi District Court
Lic Housing Finance Ltd vs Sujata Keswani on 26 September, 2024
THE COURT OF MS. NEHA PALIWAL SHARMA:
DISTRICT JUDGE-03, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
CS DJ No: 620337/2016
CNR No. DLCT01-014199-2016
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. Sujata Keswani
D/o Sh. Chander Keswani
R/o H-1/112, 3rd Floor,
Vikas Puri, New Delhi-110018
Also at:
C/o Ms. Anjali Juneja,
T-66, Vishnu Garden,
New Delhi
2. Golf Course Sahakari Awas Samiti Ltd.
D-162, Sector-10,
Noida
Also through:
Secretary,
Interim Committee,
Golf Course Sahakari Awas Samiti Ltd.
Uttar Pradesh Awas Vikas Parishad
Second Floor, Sector 16-A,
Hall No. S-4, Vasundhara Complex,
Vasundhara, Ghaziabad.
.....Defendants
CS DJ No. 620337/2016 Page No. 1 of 20
Date of institution : 02.09.2014
Reserved for Judgment : 24.09.2024
Date of decision : 26.09.2024
JUDGMENT
(1) This is a suit for recovery of Rs.24,84,419.98p (Rupees Twenty Four Lacs, Eighty Four Thousand, Four Hundred Nineteen and Ninety Eight Paisa only) filed by the plaintiff against the defendants.
(2) Succinctly put, the case of the plaintiff, as per the plaint, is that it is a company incorporated under the provisions of Companies Act, 1956, having its registered office at Bombay Life Building, 45/47, Veer Nariman Road, Mumbai-400001 with one of its regional office at Jeevandeep Building, Parliament Street, New Delhi-110001 and having one of its area office as well as back office at Laxmi Insurance Building, Asaf Ali Road, New Delhi from where defendant no.1 had taken the loan and the process of sanction and disbursement of loan in question took place. Sh. Rajni Kant Uniyal, who was working as Deputy Manager (Recoveries) with the plaintiff company, was duly empowered to sign, verify the plaint, vakalatnama, to give evidence, statement etc. and to institute the suit against the defendants for recovery of the due outstanding amount from the defendants on behalf of the plaintiff.
(3) It is the case of the plaintiff that it is engaged in the business of giving financial assistance in the form of housing loans to individuals, for purchasing residential accommodations. Defendant no.1 took housing loan from the plaintiff under individual home loan scheme of the plaintiff. Loan agreement was executed between the plaintiff and defendant no.1 CS DJ No. 620337/2016 Page No. 2 of 20 wherein defendant no.2 was the builder/ society to whom the loan amount was disbursed.
(4) It is further the case of the plaintiff that defendant no.2 was a cooperative society registered on 07.04.2004 and was allotted a plot of land bearing no. 7, Sector Pi, II, Greater Noida, as per Lease Deed dated 29.03.2005 registered in the office of Sub-Registrar, Gautam Budh Nagar, Ghaziabad, Uttar Pradesh. Defendant no.2 was constructing a multi- storey group housing society wherein it was proposed that as per scheme, various flats will be constructed for its members. Consequently, in about April 2011, defendant no.1 approached and applied to the plaintiff company for a loan against the property/ flat/ unit no. 2051, 5 th Floor, Block/ Tower T-2 in Shiv Kala Charms, Plot No.7, Sector Pi-II, Greater Noida, U.P. under the plaintiff's individual home loan scheme for purchasing the said property. Defendant no.1 represented to the plaintiff company that she is a member of defendant no.2 society and she had been allotted the above flat/ unit. Defendant no.2 also assured that it will not issue any duplicate share certificate to defendant no.1 without consent of the plaintiff and further assured that in the event of default by defendant no.1, if the plaintiff enforced the security by sale, defendant no.2 would accept the purchaser of the said property as its member. It was further agreed by defendant no.2 that in the event of cancellation of above allotment on any ground, defendant no.2 shall refund to the plaintiff company the entire amount advanced/ disbursed by the plaintiff to defendant no.2 towards the cost/ value of the said property. It was further confirmed by defendants that they had complied with all the conditions set out by the local authorities, while sanctioning the layout plan etc. CS DJ No. 620337/2016 Page No. 3 of 20 (5) It is further the case of the plaintiff that considering the request of the defendants, it sanctioned a loan of Rs.21 lacs vide loan offer letter dated 24.06.2011 to defendant no.1 for purchase of the said property/ flat, out of which sanctioned amount, a sum of Rs.17,40,000/- was disbursed. Defendant no.1 duly signed and executed written loan agreement/ contract on 07.07.2011 and agreed to repay the said amount with interest in 240 equated monthly installments (EMIs). Defendant no.1 also agreed to pay additional interest as per rules of the plaintiff company and all other charges as applicable from time to time as per policy of the plaintiff company in case of delay/ default in making repayment of the loan.
(6) It is further the case of the plaintiff that defendant no.1 created security/ lien against the said flat in favour of the plaintiff by depositing the relevant/ title documents on the said property/ flat as security for repayment of the loan. She also deposited the original agreement-cum- allotment letter and original share certificate. The plaintiff, defendant no.1 and defendant no.2 entered into a tripartite agreement and agreed that on handing over possession of flat in question, defendant no.1 shall mortgage the same in favour of the plaintiff and the flat shall be treated as 'security' against which the plaintiff advanced loan to defendant no.1 and paid the same to defendant no.2.
(7) It is further the case of the plaintiff that after availing the aforesaid loan, defendant no.1 failed to maintain financial discipline and started committing default in making the payment of due EMIs and showed complete negligence and deliberate default in payment of EMIs resulting in huge arrears in her account. Defendant no.1 had not paid any amount since October 2011 and the last payment of Rs.17,008/- was made CS DJ No. 620337/2016 Page No. 4 of 20 by her on 30.09.2011. Defendant no.2 had not completed the construction work and had made multiple allotments due to which the plaintiff was compelled to lodge criminal complaint against the builder/ society in Economic Offence Wing. The officials of plaintiff company had followed up for collection of EMIs/ dues by telephonic calls, visits and oral requests and had even sent legal notice dated 26.04.2014 to the defendants demanding the closure dues under the terms of loan agreement but the defendants had failed to pay the balance outstanding amount. Thus, defendant no.1 had violated the terms and conditions of the loan agreement as she had committed default in payment of EMI. Defendant no.2 also did not comply with the terms and conditions of tripartite agreement and hence, defendant no.2 is also jointly and severally liable to pay the outstanding amount. It is the case of the plaintiff that it is also entitled to interest @ 18% per annum and as per the books of account maintained by the plaintiff in due course of business, the defendants are liable to pay a sum of Rs.24,84,419.98p as outstanding loan as on 30.08.2014.
(8) Thus, it is prayed by the plaintiff that a money decree for Rs.24,84,419.98p along with pendentelite and future interest @18% per annum from 31.08.2014 till realization be passed in its favour and against the defendants and costs of the suit be also awarded in favour of the plaintiff and against the defendants.
(9) Initially the present suit was filed under Order XXXVII CPC before the Hon'ble High Court of Delhi vide CS (OS) 2879/2014 and was later on transferred to the District Courts. On 02.03.2017 pursuant to the statement made by the Ld. Counsel for the plaintiff, the present suit was CS DJ No. 620337/2016 Page No. 5 of 20 treated as an ordinary recovery suit.
(10) Written statement was filed by defendant no.1 to the plaint wherein preliminary objections were taken that this Court has no territorial jurisdiction to try and entertain the present suit as admittedly the suit property is situated at Noida and as per clause 10.13 of the alleged loan agreement, the jurisdiction has been specified as to be of Mumbai and no consent of the defendant has been taken to confer jurisdiction on the Courts at Delhi. The present suit is also not maintainable as the alleged loan agreement which has been entered into between defendant no.1 and the plaintiff was entered under undue influence, cheating and fraud as the connivance between defendant no.2 and plaintiff was not brought before defendant no.1 and thus, the said agreement is voidable at the behest of defendant no.1. Even if the case of the plaintiff and the documents relied upon are taken into consideration, it is defendant no.2 who is liable to make the payment to the plaintiff as the entire amount was directly disbursed into the account of defendant no.2 and it is the liability of defendant no.2 to pay back to the plaintiff in case of any default on the part of defendant no.1 or surrender of the flat in question as per the admitted tripartite agreement between the plaintiff and the defendants. The present suit does not disclose any cause of action and is liable to be rejected.
(11) It is further the case of defendant no.1 that the present suit is based on concealment and distortion of the material facts and is misleading. The true and correct facts are that M/s. Golf Course Sahakari Awas Samiti Ltd., is a society which is working as part of an umbrella of Shiv Kala SRS Group of Companies/ entities. The aforesaid society and CS DJ No. 620337/2016 Page No. 6 of 20 concerned officers of the plaintiff/ LIC Housing Finance Ltd. in collusion with each other, cheated numerous persons including defendant no.1 by extending loans and selling them flats, which were neither completed nor handed over to any of the allottees. The said connivance is evident from the fact that the loan was pre-approved by the plaintiff despite having known that the society is a defaulter with Noida authorities and the allotment of said plot was to be cancelled by Greater Noida Authority and is in fact, now cancelled.
(12) It is further the case of defendant no.1 that in the year 2006- 2007, defendant no.2 introduced a pre-launch project namely "Shiv Kala Charms" proposed to be developed at Plot No. 07, Sector-Pi-II, Greater Noida, Gautam Budh Nagar, UP for residential flats and collected money from general public including defendant no.1. Defendant no.2 offered to sell flats and getting the said purchase financed through the plaintiff and other financial institutions, with which defendant no.2 had already made finance arrangements after getting project approval. Acting on the said offer, defendant no.1 booked flat bearing no. 2051 admeasuring approx. 1450 Sq. Ft. of super area on 5 th Floor, in block / tower T-2 as purchasers in Shiv Kala Charms, Plot No. 07, Sector-Pi-II, Greater Noida, (Gautam Budh Nagar), U.P. Defendant no.1 was informed that the total base price of the said residential unit/ flat would be Rs.30,00,000/- (Rupees Thirty Lakh Only) and she was allotted the above flat vide agreement cum allotment letter and accordingly a Tripartite Agreement was executed between defendant no.1, defendant no.2 and the plaintiff. By virtue of the said agreement, the plaintiff agreed to sanction and disburse loans directly to the Society, that is defendant No.2. The plaintiff was brought into the CS DJ No. 620337/2016 Page No. 7 of 20 picture by defendant no.2 itself and not by defendant no.1 and defendant no.2 made arrangements with the plaintiff to extend the loans to persons like her, who were booking the flats. Defendant no.1 was made to enter into a tripartite agreement with the plaintiff including defendant no.2 as well as a loan agreement dated 07.07.2011 on the assurance that the project launched by defendant no.2 has been pre-approved by the plaintiff on the basis of a due diligence conducted by it confirming that defendant no.2 has proper right and title over the land where the project was to be built. It was also assured that the investment of defendant no.1 was secured. The plaintiff had disbursed the loan on 24.06.2011, that is, before signing of the loan agreement dated 07.07.2011 that too based on the NOC issued by the builder i.e. defendant no.2 for marking lien on the flat booked by defendant no.1, which at the relevant time was not even completely constructed, which clearly shows the connivance between the plaintiff and defendant no.2.
(13) It is further the case of defendant no.1 that the flat was offered for sale at attractive price and the involvement of plaintiff in the said transaction and the due diligence conducted by them, assured defendant no.1 that the property was free of any liability/ encumbrance and the title was clear. On the basis of the said assurance, defendant no.1 agreed to buy the flat in question and entered into the tripartite agreement for purchase of the flat without realizing that she was being cheated by the plaintiff in connivance with defendant no.2. Later, defendant no.1 discovered that the plaintiff had connived with defendant no.2 and submitted false report that the title of the flat being purchased/ booked by defendant no.1 was clear. Further, it was discovered that defendant no.2 CS DJ No. 620337/2016 Page No. 8 of 20 was in arrears with the NOIDA authorities, was a defaulter and the flats had been overbooked and many flats were sold to more than one buyer. After having come to know of the above irregularities, defendant no.1 made various complaints and correspondence to the plaintiff seeking explanation regarding the said cheating but no response came from the plaintiff and thereafter, she was constrained to intimate the plaintiff that they would be stopping payment of the installments and if any recovery was to be made, the same can be made from the builder, that is, defendant no.2. Since many similarly placed innocent purchasers were duped and defrauded by defendant no.2 in connivance with many financial institutions including the plaintiff, various complaints were lodged by such flat purchasers including defendant no.1 before various authorities including but not limited to NHB, RBI, concerned District Magistrate, Local Police Stations as well as EOW etc. Pursuant to the said complaints the National Housing Board conducted an enquiry and issued a report to the extent that there was connivance between the builder and the financial institutions in defrauding innocent flat purchasers and many of the complaints culminated into FIRs and the charge sheet was filed. As per clause 4, 7 and 8 of the tripartite agreement it was categorically agreed that in case of breach of any of the terms and conditions of the agreement, the entire amount advanced would be recoverable from the builder, that is, defendant no.2.
(14) It is further the case of defendant no.1 that she had been regularly making the payments of EMI's till 30.09.2011 but was constrained to stop the same upon having come to know of the connivance between the plaintiff and the society of cheating and CS DJ No. 620337/2016 Page No. 9 of 20 defrauding her alongwith other such allottees/ purchasers of the flats with due intimation to the plaintiff. On account of the cheating having been committed by the plaintiff and defendant no.2 in connivance with each other against defendant no.1, the agreement being relied upon by the plaintiff became a voidable agreement at the behest of defendant no.1 herself. On account of the cheating committed by the builder in connivance with the financial institutions like the plaintiff, various complaints were filed against the builder which were culminated into FIRs which are being investigated by the Economic Offences Wing. In various FIR's including FIR bearing No. 62/2012 dated 08.06.2012 as well as 63/2012, 143/2012, 65/2012 and 18/2015 etc. part charge sheet has been filed. Records show that the plaintiff including other financial institutions had funded around 340 flats against the approved 140 flats. The plaintiff had also lodged a complaint against the builder, alleging cheating confirming the element of fraud and cheating but despite the same, the plaintiff had filed recovery suit against defendant no.1. Defendant no.1 was constrained to stop payment of the EMIs on the belief that as per the tripartite agreement in the eventuality of default, the plaintiff would recover the entire amount from the builder but the plaintiff instead filed the present suit for recovery against her. Even the flat under question was mortgaged with the plaintiff and if the recovery is to be made, the same can also be made by selling the said flat.
(15) It is the case of defendant no.1 that the suit of the plaintiff is not maintainable against her as she is not liable to make any payment to the plaintiff and in-fact she is entitled to be compensated for the damages caused by the act of the plaintiff in cheating and defrauding her in CS DJ No. 620337/2016 Page No. 10 of 20 connivance with defendant no.2 causing financial loss and loss of reputation to her, mental and physical harassment to her which is assessed to the tune of Rs.70 Lacs.
(16) In her reply on merits, defendant no.1 had denied each and every contention of the plaintiff. It is the case of defendant no.1 that the plaintiff had itself admitted that defendant no.2 had not completed the construction work and had made multiple allotments due to which the plaintiff was compelled to lodge criminal complaint in EOW against the builder/ society, which was one of the various grounds which constrained defendant no.1 to stop paying the installments. She had already paid the EMIs till 30.09.2011 and was deprived of her hard earned money to the tune of approximately Rs.8 lacs. Rather, the plaintiff is bound to refund the amount paid by her by way of EMIs to the plaintiff. The plaintiff is further bound to pay to her Rs.7,50,000/- which was paid to the builder, Rs.30,00,000/- towards loss of opportunity and Rs.32,50,000/- as damages with interest @ 18% per annum. Thus, it is prayed that the suit of the plaintiff be dismissed.
(17) On the basis of the above averments, a separate counter claim was also filed by defendant no.1 against the plaintiff seeking recovery of a sum of Rs.70 lacs along with interest. However, no court fees despite directions was filed by defendant no.1 qua the counter claim.
(18) Defendant no.2 Golf Course Sahakari Awas Samiti Ltd. was duly served with dasti summons. As none appeared on behalf of defendant no.2, it was proceeded with ex-parte vide order dated 16.08.2018.
CS DJ No. 620337/2016 Page No. 11 of 20(19) After perusal of the pleadings of the parties and on the basis of material available on record, following issues were framed for trial by the Ld. Predecessor of this Court vide order dated 20.11.2018:
1. Whether the plaintiff is entitled for recovery of the suit amount, as prayed for by the plaintiff in the plaint and from whom? OPP
2. Whether the plaintiff is entitled to the interest? If so, at what rate and for which period? OPP
3. Relief.
(20) Thereafter, the matter was fixed for plaintiff's evidence.
(21) The plaintiff in support of its case had examined its Manager Sh. Naveen Kumar Sinha as PW1. PW1 had tendered his evidence by way of affidavit Ex.PW1/A. He in his affidavit had relied upon following documents:-
1. Copy of authorization letter dated 13.05.2014, Ex.PW1/1 (OSR).
2. Copy of GPA, Ex.PW1/2 (OSR).
3. Original loan offer letter dated 24.06.2011, Ex.PW1/3.
4. Loan agreement dated 07.07.2011, Ex.PW1/4.
5. Original tripartite agreement between plaintiff and defendants, Ex.PW1/5.
6. Original agreement cum allotment letter, Ex.PW1/6.
7. Original share certificate, Ex.PW1/7.CS DJ No. 620337/2016 Page No. 12 of 20
8. Letter dated 18.01.2014 along with two postal receipts and one AD Card, Ex.PW1/8 to Ex.PW1/11 respectively.
9. Notice dated 26.04.2024 along with five postal receipts and one AD Card, Ex.PW1/12 to Ex.PW1/18 respectively.
10. Statement of account duly signed by Sh. Rajni Kant, Ex.PW1/19.
(22) PW1 was partly cross-examined by the Ld. Counsel for defendant no.1 wherein he had admitted that in the authority letter there is no mention of word 'deposition'. He further admitted that regulatory body of the plaintiff is national housing bank (NHB) and the plaintiff is duty bound to follow its guidelines, rules and regulations. PW1 further admitted that before sanctioning the loan, it is mandatory that due diligence of the property as well as viability of the project is required to be determined.
(23) Further cross-examination of PW1 was deferred for want of certain documents viz. NHB guidelines of the relevant time, complete file pertaining to due diligence of the project, viability and valuation report verification of sanction plan of project, complete file pertaining to proposal of defendant no.2 society, guidelines of the process for pre- approving of project, complete file showing the personal discussion approval of the project, complete file showing the personal discussion and minutes with defendant no.2 and its members, report of verification of financial status and capacity of defendant no.2, assurance of defendant no.2 that they will not issue duplicate certificate, list of officials who sanctioned the project as well as the present loan agreement and list of all CS DJ No. 620337/2016 Page No. 13 of 20 the flats sanctioned by the plaintiff in the said project. However, thereafter defendant no.1 stopped appearing before the Court and abandoned the proceedings. Court notice was also served upon the counsel for the defendant no.1 but none had appeared on behalf of defendant no.1 and hence, vide order dated 07.06.2023 the right of defendant no.1 to further cross-examine PW1 was closed. Vide separate statement of AR of the plaintiff, plaintiff's evidence was also closed on 07.06.2023 and the matter was fixed for defendant's evidence.
(24) At the stage of defendant's evidence, as none appeared on behalf of defendant no.1, the defendant's evidence was closed by the Ld. Predecessor of this Court vide order dated 27.09.2023 and the matter was fixed for final arguments.
(25) Arguments heard as advanced by Ld. Counsel for the plaintiff Ms. Roma Singh and material available on record perused.
Issue-wise findings are as under:
Issues no. 1 and 2:
- Whether the plaintiff is entitled for recovery of the suit amount, as prayed for by the plaintiff in the plaint and from whom? OPP
-Whether the plaintiff is entitled to the interest? If so, at what rate and for which period? OPP (26) Both the above issues are taken up together being interconnected and as onus of proving both the issues was on the plaintiff.
(27) The plaintiff had claimed recovery of Rs.24,84,419.98p from the defendants on account of loan advanced by them to the defendants.CS DJ No. 620337/2016 Page No. 14 of 20
(28) PW1 Naveen Kumar Sinha in his evidence by way of affidavit Ex.PW1/A had reiterated and affirmed the contents of the plaint and had deposed in consonance with the plaint. He had proved the authorization letter dated 13.05.2014 (Ex.PW1/1) and general power of attorney (Ex.PW1/2). Original of both these documents were seen and returned. It was stated in the authority letter Ex.PW1/1 that it was issued by Ms. Sunita Sharma, Managing Director & Chief Executive Officer, in exercise of power conferred upon her vide para 21 of the power of attorney (Ex.PW1/2) given to her vide resolution passed in the board meeting dated 21.11.2013. Though PW1, in his cross-examination, admitted that in the authority letter there is no mention of word 'deposition', however, this would not be fatal to the case of the plaintiff in view of the authority letter Ex.PW1/1 authorizing PW1 to declare and affirm all plaints, written statements, applications, petitions, appeals, affidavits and other necessary pleadings and documents in the name of the company or in the name of any concern, firm or company in which the company is or may be interested or concerned, to appear before any judge, magistrate or other court. There is no reason to disbelieve that no power existed with PW1 to depose on behalf of the plaintiff. Even otherwise, as defendant no.1, after partly cross-examining PW1, had abandoned the proceedings, the testimony of PW1 had remained non-controverted, non-rebutted and non-
challenged.
(29) PW-1 had proved the loan offer letter dated 24.06.2011 (Ex.PW1/3), loan agreement dated 07.07.2011 (Ex.PW1/4) and the tripartite agreement (Ex.PW1/5). These documents establish that the loan amount, though paid by the plaintiff to defendant no.2 was actually paid CS DJ No. 620337/2016 Page No. 15 of 20 on behalf of defendant no.1. It is defendant no.1 who had applied for the loan vide her application Ex.PW1/4 and it was in pursuance of this application that loan offer letter Ex.PW1/3 was issued to her, loan was sanctioned and tripartite agreement Ex.PW1/5 was entered into.
(30) It is the case of defendant no.1, in her written statement, that since she did not get the flat from defendant no.2 and since the flat was agreed to be a security for repayment of loan amount, she is not liable to pay and liability, if any, is of defendant no.2. Reference has been made to clauses 4, 7 and 8 of the tripartite agreement Ex.PW1/5. However, this Court is of the opinion that these clauses only provide that the flat will be a security for repayment of loan amount and that on defendant no.1 getting the flat, it shall stand mortgaged with the plaintiff till the loan amount is repaid.
(31) Merely because defendant no.1 did not get the flat due to fraud or for any other reason and the security for repayment of loan does not exist, it does not mean that the plaintiff cannot recover the loan amount from defendant no.1 from her other assets. Defendant no.1 had herself admitted that she had repaid installments to the plaintiff till 30.09.2011. If the reasoning given by defendant no.1 is accepted to be correct, there was no reason for her to have repaid any amount to the plaintiff. Even otherwise, clause 10.2 of the loan agreement Ex.PW1/4 also provide that money was payable by the borrower to LICHFL.
(32) No evidence has been led by defendant no.1 in support of her contentions in the written statement. Therefore, this Court is of the opinion that there is no merit in the averment of defendant no.1 that since CS DJ No. 620337/2016 Page No. 16 of 20 she could not get the flat, she is not liable to repay the loan amount and that it should be recovered by the plaintiff from defendant no.2. The loan amount was paid to defendant no.2 on behalf of defendant no.1. The defendant no.1 is liable to repay the balance loan amount along with interest and other charges. There is no dispute on the calculation arrived at by the plaintiff in paragraph no.17 of the plaint. It is a settled law that a bald denial is no denial in the eyes of law.
(33) It is liability of the principal borrower to clear the outstanding dues and any issue between the borrower and the builder cannot come in the way of the plaintiff company from seeking recovery of the amount from defendant no.1. In this regard, reference is made to the case of Housing Development Finance Corporation Ltd Vs Umesh Kumar Rai & Anr. CS (OS) 2894/2012 decided by Hon'ble Delhi High Court on 02.09.2014 wherein, under similar circumstances relating to flat financed by the plaintiff with the builder, the leave to defend application of the defendant borrower was dismissed and suit was decreed against the borrower and builder.
(34) In Housing Development Finance Corporation Vs. Sandeep Kumar in CS (OS) 2502/2012 decided on 11.03.2015, the Hon'ble Delhi High Court held that the Tripartite Agreement did not absolve the borrower's liability and this legal position was confirmed by the Hon'ble Division Bench of the Delhi High Court in Sandeep Kumar Vs Housing Development Finance Corporation Ltd. RFA (OS) 50/2015 decided on 25.08.2015 wherein it was held that even if the builder was to return money directly to the lender bank and he having failed to do so, the same did not absolve the borrower of his liability.
CS DJ No. 620337/2016 Page No. 17 of 20(35) Considering the aforesaid legal position, in such circumstances, defendant no.1 has the liability to pay the outstanding loan amount to the plaintiff. However, as amount was disbursed in the account of defendant no.2, defendant no.2 is also liable to pay the amount to the plaintiff. The tripartite agreement Ex.PW1/5, creates a liability of defendant no.2, in- addition, and not to the exclusion of the liability of defendant no.1, to refund the loan amount to the plaintiff. The plaintiff was well within its contractual rights to initiate the legal proceedings against defendant no.1 borrower as well as defendant no. 2 Builder/Housing Society.
(36) Moreover, defendant no.2 has not chosen to appear to rebut the specific averments proved on oath by the plaintiff through its witness PW1 and by way of the documentary evidence adduced by the plaintiff during trial. It is presumed that defendant no.2 has no defence to raise and the testimony of PW1 having gone unrebutted in so far as defendant no.2 is concerned, defendant no. 2 is also jointly and severally liable to repay the aforesaid amount to the plaintiff.
(37) Nothing contradictory has come on record during part cross- examination of PW1. His testimony has been consistent and coherent. No evidence to the contrary has been led by defendant no.1. There is no reason to disbelieve the testimony of PW1. The plaintiff has therefore successfully proved that both the defendants are jointly and severally liable to pay Rs.24,84,419.98p.
(38) It may noted that defendant no.1 had also filed a counter claim for a sum of Rs.70 lacs against against the plaintiff. However, it is evident from the record that she had not filed the requisite Court Fees on CS DJ No. 620337/2016 Page No. 18 of 20 the same. Ld. Counsel appearing for defendant no.1 had sought time to file Court Fees on the counter-claim, as evident from proceeding sheets dated 24.08.2017 and 20.11.2018 despite which the same was not filed. Even otherwise, defendant no.1 had failed to pursue her counter-claim and had even abandoned the present proceedings at the stage of plaintiff's evidence.
(39) So far as the aspect of interest is concerned, in the plaint, the plaintiff had claimed interest @ 18% per annum on such sum, till its realization. As per the provisions of Section 34 (1) CPC, where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent, per annum, as the Court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.
(40) Further, the rate of interest claimed by the plaintiff seems exorbitant and hence, in the considered opinion of this Court, as per the prevailing rates of interest provided by the bank, interest @ 6% per annum would be just and proper.
(41) Both the issues are accordingly decided in favour of the plaintiff and against the defendants.
CS DJ No. 620337/2016 Page No. 19 of 20Relief:
(42) In the light of above discussions and findings, the present suit is hereby decreed. Both defendant no.1 and defendant no.2 shall, jointly and severally, pay to the plaintiff a sum of Rs.24,84,419.98p (Rupees Twenty Four Lacs, Eighty Four Thousand, Four Hundred Nineteen and Ninety Eight Paise) with interest thereon @ 6% per annum from the date of filing of the suit till the date of realization of the said amount. Keeping in view the nature of the matter, parties are directed to bear their own costs. Decree sheet be prepared accordingly.
(43) File be consigned to record room, after due compliance.
Announced in the Open Court 26.09.2024 (Neha Paliwal Sharma) District Judge-03, Central District, Tis Hazari New Delhi It is certified that this judgment contains 20 pages and each page bears my signatures.
(Neha Paliwal Sharma) District Judge-03, Central District, Tis Hazari, New Delhi CS DJ No. 620337/2016 Page No. 20 of 20