Delhi District Court
Sh. Ramesh Gupta vs Unknown on 20 May, 2015
IN THE COURT OF MS. SUJATA KOHLI, LD. ADJ. DISTT. JUDGE,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Suit no. 353/14/2010
Unique ID No. 02401C0059992010
In Re:
Union Bank of India, a body corporate constituted under
Banking companies (Acquisition & Transfer of Undertaking) Act, 1970
having its Head office at
239, Vidhan Bhawan Marg, Nariman Point, Mumbai400021
and having a branch at Kashmere Gate, Delhi
through its branch manager Shri J.N. Singh.
Versus
1.Sh. Ramesh Gupta S/o Sh. Murari Lal R/o 49, Pocket1/4, Sector16, Rohini, Delhi110085 Also at First Floor property no. 60, Pocket G2, Sector11, Rohini, Delhi.
2. Sh. Desh Raj Baba R/o 12/206/207,
3. I&II floor, Sector16, Rohini, Delhi.
Suit under order XXXIV CPC for recovery of Rs. 8,40,220/ EXPARTE JUDGMENT
1. Plaintiff bank has filed the present suit against the defendants, for foreclosure and sale of property alleged to have been mortgaged with it by defendant no. 1 the principle borrower.
2. The plaintiff bank has alleged that the defendant no. 1 approached the plaintiff bank on 08.08.2004 for a housing loan of Rs. 10 lakh for purchase of flat and its renovation and on 19.08.2014 the plaintiff bank sanctioned the said housing loan as a term loan, which was to be repayable in 240 equal monthly installments of Rs. 8,521/ alongwith interest @ 8.25% below the PTLR rate subject to minimum of 10.75% per annum.
3. The defendant no. 1 is alleged to have executed various documents as a security i.e demand promissory note, housing loan agreement dtd. 19.08.2014 fresh demand promissory note dtd. 30.06.2007 and also a balance confirmation note. D2 stood as a guarantor and executed a letter of guarantee dtd. 19.08.2004.
4. It is alleged that the contents of all the documents were fully read over and explained to the defendants, who after understanding the contents and their consequences, signed them.
5. Further alleged, that in order to secure the dues, the D1 also created an equitable mortgaged by deposit of title deeds of his immovable property i.e. semi built unfinished entire first floor without roof rights of the built up property from ground floor to unfinished entire first floor bearing no. 60, Pkt. G2, Sector11, area measuring about 50.4 sq. mtrs. Situated at Rohini, Delhi110085 (hereinafter referred to as a suit property) along with free hold rights of the land underneath. The original sale deed was deposited with the plaintiff bank, which was duly registered as per particulars stated in para 8 of the plaint.
6. It is alleged that the defendant no.1, after availing the loan facility failed to adhere to the repayment schedule and he became highly irregular showing outstanding dues from time to time. As on 12.11.2009, a sum of Rs. 8,40,220/ was shown to be overdue and outstanding against the defendant no. 1 in his loan account.
7. Plaintiff bank issued various requests and reminders including letter dated 01.06.2009 and 29.08.2009 but despite duly receiving them, the defendant no.1 failed to regualrise his account. His loan account was declared as non performing asset on 30.10.2009 by the plaintiff bank.
8. The plaintiff bank, however, also issued legal notice dtd. 30.10.2009 to both the defendants but to no avail. The notice was duly received but the defendant no. 1 to fail to repay and regularize the accounts. As such, the plaintiff bank has been compelled to come to court seeking recovery of the amount inclusive of interest i.e Rs. 8,40,220/ calculated up till 12.11.2009 praying for further pendente lite and future interest thereon @ 8.25% p.a.
9. It is further prayed that in the event, the D1 and D2 failed to comply and pay the loan, even after passing of the preliminary money decree, the plaintiff bank may be permitted to sell the suit property and to recover their dues from the sale proceeds.
10.The defendant could not be served by ordinary process as per record and eventually they were allowed to be served by way of substituted service by way of publication. They did not appear in spite of publication and as such, they were proceed exparte vide order of Ld. Predecessor.
11. The plaintiff bank examined Smt. Amrita Sharma, Manager as PW1 on her affidavit Ex. PW1/A and also tendered documents from Ex. PW1/1 onwards to Ex. PW1/13 mentioned as under:
(i) Certified copy of POA dtd. 19.06.2002: Ex. PW1/1
(ii) Sanction letter dtd. 19.08.2004: Ex. PW1/3
(iii) Demand promissory note dtd. 19.08.2001: Ex. PW1/4
(iv) Housing loan agreement dtd. 19.08.2004: Ex. PW1/5
(v) Letter of guarantee: Ex. PW1/6
(vi) Original sale deed dtd. 26.08.2014: Ex. PW1/7
(vii) Debit balance confirmation slip: Ex. PW1/9
(viii) DP notice dtd. 30.06.2007: Ex.PW1/9A
(ix) Statement of account of the defendant: Ex.PW1/13(Colly)
12.(Ex. PW1/2, EX. PW1/8, Ex. PW1/11 and Ex. PW1/12 as mentioned in the affidavit were converted into Mark A, Mark B & C Mark D & E, and Mark F respectively during the tendering of the affidavit of PW1)
13.The plaintiff bank also examined Sh. J.N. Singh, Chief Manager as PW2 on his affidavit Ex. PW2/A and this witness tendered in evidence the power of attorney, memorandum of deposit of title deed and the certified copy of statement of account as Ex. PW2/1 to Ex. PW2/3.
14. None appeared for the defendant even to crossexamine the witness of the plaintiff and the matter came up for exparte final arguments.
15.I have heard the arguments of the Ld. Counsel for the plaintiff and have carefully perused the record.
16.Defendant has failed to contest the averments made buy the plaintiff bank and in fact the record shows that the defendant had been served ordinarily as well as on all the addresses furnished by them and even by affixation. The claim made by the plaintiff bank remains unrebutted and besides it has been duly corroborated by the various documents referred about.
17. In view of the balance confirmation letter Ex. PW1/9, the cause of action starts to arise afresh and the limitation gets revived as the suit was filed on 16.02.2010 while the confirmation letter was executed on 31.07.2007. Thus, the suit is well within limitation. Computerised statement of account is showing the last outstanding balance wherein inclusive of the interest calculated upto 12.11.2009 as Rs. 8,40,220/. The interest after declaring the loan account as nonperforming asset has not been calculated by the bank when they have come with the suit on 16.02.2010. Original sale deed executed in favour of the defendant no. 1 and deposited by defendant no. 1 with the plaintiff bank has been filed on the judicial fie and the same is Ex. PW1/7 pertaining to the built up property No. 60, Pocket G2, Sector11, area measuring 50.4 sq. mtrs at Rohini and same is duly registered with the concerned SubRegistrar.
18.Ex. PW2/2 also corroborates the averments that the sale deed had been deposited by the defendant no. 1 on his own free will with the plaintiff bank, being memorandum of deposit of title deeds and which includes the sale deed dated 06.08.2004 referred above.
19.In view of the above facts and circumstances, and the oral evidence duly supported by all the original documents above referred, there is no reason under the law, why the plaintiff bank should not be entitled to recover the amount due against the defendant no. 1 the principal borrower and the defendant no. 2 being the guarantor.
20.In view of the facts and circumstances, I pass the preliminary decree in favour of the plaintiff and against both the defendant in the foregoing terms: (I) that the defendants jointly and severally do pay into court on or before the day of 20.11.2015 cost of sum of Rs. 8,40,220/ with interest, pendente lite and future @ till realisation.
(ii) that on payment before such date as above declared of the amount as above stated the plaintiff shall bring into court all documents in its possession or power relating to the mortgaged property in the plaint mentioned and all such documents shall be delivered over to the D1 or to such person as he appoints, and the plaintiff shall, if so required reconvey or retransfer the said property free from the said mortgage and clear of all encumbrances created by the plaintiff, or any person claiming under him or any person under whom he claims, and free from all liability, whatsoever arising from the mortgage or, this suit and shall, if so required deliver up to the D1 quiet and peaceful possession of the said property.
(iii) And it is hereby further ordered and decreed that, in default of payment, as aforesaid, the defendant and all persons claiming through or under him shall be absolutely debarred and foreclosed of any or all rights of redemption of and in the property, described in the schedule annexed hereto (and (if the defendant no. 1 be in possession of the said mortgaged property) than the defendant shall deliver to the plaintiff quiet and peaceful possession of the said mortgaged property) and that the whole of the liability i.e. the amount above decreed, payable on date alone stated, arising from the said mortgage mentioned in the plaint, or from this suit, shall be then discharged and extinguished.
ANNOUNCED IN OPEN COURT ON 20.05.2015 (Sujata Kohli) ADJ(Central)THC