Delhi District Court
Charu Goel vs Punjab National Bank on 13 May, 2025
IN THE COURT OF MS. KIRAN BANSAL
LD. DISTRICT JUDGE (COMM-02) : SHAHDARA
KARKARDOOMA COURTS: DELHI
CS (Comm) No. 649/2022
Punjab National Bank, a body corporate constituted under the Banking
Companies (Acquisition and Transfer of Undertaking) Act, 1970 having its head
office at head office at plot no. 4, Sector 10, Dwarka, New Delhi - 110078, and
also having amongst other branch office at 1, Pocket D, DDA Market, Delhi-
110053, through its Chief Manager/Authorized Representative Mr. Hari Shanker
Kradam. ........Plaintiff
Versus
1. Ms. Charu Goel,
W/o Sh. Atul Singhal,
R/o B-74-75, Model Town,
East Ghaziabad,
Uttar Pradesh-201 001.
2. Sh. Atul Singhal
S/o Sh. Ashok Singhal
R/o B-74-75, Model Town,
East Ghaziabad,
Uttar Pradesh-201 001.
3. Sh. Pradeep Kumar
S/o Sh. Jiya Lal
R/o D-90, Swaran Jayanti Puram,
Ghaziabad, Uttar Pradesh-201 013
CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel
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4. M/s. Idea Builders (P) Ltd.
Corporate Office at
C-294, 1st Floor, Near Park,
Vivek Vihar, New Delhi - 110095 .... DEFENDANTS
AND
CS (COMM) 10/24
1. Ms. Charu Goel,
W/o Sh. Atul Singhal,
2. Sh. Atul Singhal
S/o Sh. Ashok Singhal
R/o B-74-75, Model Town,
East Ghaziabad,
Uttar Pradesh-201 001. ..... COUNTER CLAIMANTS /
DEFENDANTS
VERSUS
Punjab National Bank,
having its head office at:
Plot no. 4, Sector 10, Dwarka, New Delhi
Also at:
Branch office at:
Unit 1, Pocket D, DDA Market,
Delhi- 110053
CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel
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2.M/s Idea Builders (P) Ltd.
Cooperate Office at
D-248, Street No.10, Laxmi Nagar,
Delhi - 110092
Date of Institution :21.11.2022
Date of hearing arguments :22.01.2025
Date of conclusion :13.05.2025
BRIEF FACTS OF THE CASE : PUNJAB NATIONAL BANK Vs. MS.
CHARU GOEL & ORS.
1. The plaintiff (Bank) filed a suit for recovery against the defendants
for Rs.14,30,849-. It is alleged by the plaintiff that defendant no. 4 (builder)
allotted 2BHK flats to defendant no. 1 and 2 vide Allotment letter dated
01.10.2013. Defendant no. 1 and 2 approached the plaintiff bank for loan of
Rs.15,00,000/- and the plaintiff bank sanctioned the house loan of Rs.
15,00,000/- which was payable in 282 monthly installments of Rs.14,093/-,
which were to commence after moratorium period of 18 months. The said loan
was guaranteed by the defendant no. 3. The plaintiff bank further avers that the
defendant no. 1 and 2 submitted a no objection after obtaining it from defendant
no. 4 to mortgage the flat with the bank and in furtherance thereof, the bank,
defendant no. 1 and 2 and defendant no. 4 (builder) entered into a tripartite
agreement dated 26.12.2013.
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2. Thereafter, defendant no. 1 and 2 failed to adhere to financial
discipline and thus, account of defendant no. 1 and 2 was classified as NPA on
31.03.2021 and an amount of Rs. 14,30,849/- was reflected as outstanding
amount and therefore, the plaintiff bank has filed the present suit.
3. During the course of proceedings following applications were filed
in the main suit:
(a) Application under Order XIIIA for summary judgment read with Section
151 CPC read with Section 3 of Commercial Courts Act filed by the
plaintiff/bank dated 17.09.2024 filed on 20.09.2024 ;
(b) Application filed by defendant no. 1 and 2 under Order VII Rule 11 CPC
seeking rejection of plaint filed by the defendant dated 07.10.2024 filed on
09.10.2024;
(c) Application filed by the defendant to dismiss the plaint of the plaintiff dated
04.11.2024 filed on 08.11.2024.
COUNTER CLAIM: CHARU GOEL Vs. PUNJAB NATIONAL BANK CS
(COMM)10/24
4. The defendant no.1 and 2 filed the present counter claim on
03.01.2024 for recovery of an amount of Rs.8,00,465/- as well as damages for
an amount of Rs.1,00,000/-. The copy of the counter claim was supplied to the
defendant / bank on 05.01.2024 when the main suit was also fixed. The
defendant / bank filed WS as well as applications under Order VII Rule 11 CPC
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seeking rejection of the counter claim and raising the questions regarding the
maintainability of the same.
5. Following applications were filed by the plaintiff bank, in the
course of the proceedings in the counter claim / suit filed by the defendant no. 1
and 2:
Application under Order VII Rule 11 CPC seeking rejection of counter
claim filed by claimant / defendant dated 30.03.2024, on the ground that
NCLT declared moratorium against the Builder vide order dated
05.07.2023
Application under Order VII Rule 11 CPC dated 17.09.2024 for rejection
of plaint/counter claim filed by the borrower on the ground of non
compliance of Section 12A of the Commercial Courts Act.
6. Firstly taking up the application for summary judgment filed by the
plaintiff bank under Order XIII A CPC dated 17.09.2024 in the main suit. It is
stated that the defendant no.1 and 2 in their affidavit of admission and denial
have admitted the allotment letter cum flat buyer agreement, the loan
application dated 26.12.2013, the receipt of payment of loan amount of which
Rs.11,50,000/- was disbursed, Builder's letter and Tripartite Agreement. It is
stated that the defendant in their counter claim admitted the execution of
agreement and Power of attorney in favour of plaintiff bank and thus, prayer has
been made for decreeing the suit in a summary manner. Application is
supported by the affidavit of Sh. Deepak Kumar, Chief Manager of Punjab
National Bank.
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7. Reply has been filed on behalf of respondent no. 1 and 2 stating
that the suit is not maintainable as the same is barred by Section 12A of
Commercial Courts Act, as the plaintiff had not complied the provision related
to pre institution mediation and settlement. Further, it is stated that as per
provisions of summary judgement, it is clear that no application for summary
judgment can be filed after the court has framed the issues. Issues in the present
case have already been framed vide order dated 06.08.2024. It is stated though,
the plaintiff had granted loan of Rs.15,00,000/-, but, the amount of
Rs.15,00,000/- was never disbursed and only an amount of Rs.11,50,000/- was
disbursed, so, the plaintiff is entitled to interest on the principal amount of
Rs.11,50,000/-, but, still plaintiff has charged EMI for Rs.14,093/-. The plaintiff
bank is thus, charging interest on the extra amount of Rs.3,50,000/- which was
never disbursed and plaintiff has been claiming an amount of Rs.4,000/- per
month extra as EMI. Further, it is stated that as the loan was granted against
property bearing no. B-810, Red Apple Residency, Raj Nagar, Extension
Ghaziabad, the loan may be recovered through mortgaged property. It is also
stated that Tripartite Agreement was entered into between the plaintiff bank and
the builder as well as defendant no. 1 and 2 and as per clause 6 of the Tripartite
Agreement, it was agreed that if defendant no. 1 and 2 withdraw from the said
scheme or fail to pay the balance amount or allotment of the flat is cancelled or
defendant no. 1 and 2 expired, then the entire amount standing will be refunded
by the authority/builder to the bank and the bank after attaching the entire
outstanding amount, refund the balance to the borrower. It is stated that plaintiff
bank is breaching the law of contract and the suit is barred by time and is liable
to be rejected. Prayer has been made for dismissal of the application as well as
dismissal of the plaint of the plaintiff.
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8. Rejoinder has been filed by the plaintiff to the reply. In addition to
reiterating the averments in the application, it is stated that defendant no. 1 and
2 have filed counter claim, but, they have not initiated the Pre Mediation
process, hence, the counter claim is non- est.
9. Ld. counsel for plaintiff has relied upon the following judgments:
(i) K.R. Impex Vs. Punj Lloyd Ltd., Manu/DE/0204/2019;
(ii) ITC Ltd. Vs. Debt Recovery, MANU / SC / 0968/ 1998
Remaining paras of the application under Order XIIIA CPC are
reiterated and the contents of the reply are denied.
10. Written arguments are also filed by defendant no. 1 and 2. Heard.
Perused the record.
11. Firstly, discussing the judgements filed by the plaintiff. In the case
of K. R. Impex Vs. Punj Lloyd Ltd., Manu/DE/ 0204/2019, the plaintiff had
filed a suit for recovery of money against the defendant. In this case the plaintiff
filed an application under Order XII Rule 6 CPC for decree on admissions as an
outstanding amount was shown as payable by the defendant to the plaintiff. The
Hon'ble High court of Delhi was dealing with an application filed by the
plaintiff under Order XII Rule 6 CPC for decree on admission of the defendant
with respect to liability being admitted by the defendant. While deciding the
application filed by plaintiff under Order XII Rule 6 CPC, Hon'ble High court
merely referred to the provision for Summary judgement as contained in order
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XIII-A CPC. Thus, the observation of Hon'ble High Court regarding the
summary judgment is merely an obiter dicta and not the ratio decidendi of the
judgment. The same is also reflected from the following para of the judgment:
"25. Though in view of above, there is no need for me to
deal with Order XIIIA CPC as applicable to Commercial
Courts but a word on that too."
12. Thus, in view of the above stated reasons, the observations made
by the Hon'ble High court are in nature of obiter dicta as the Hon'ble High
court has passed the order on application under Order XII Rule 6 CPC and
therefore, the above said case is distinguishable and is not applicable to the facts
of the present case.
13. The counsel for the plaintiff has also relied upon the judgement of
Hon'ble Supreme Court in ITC Ltd. Vs. Debt Recovery, MANU / SC / 0968/
1998, the Hon'ble SC was dealing with the issue involving an application for
rejection of plaint under Order VII rule 11 CPC. The Hon'ble SC rejected the
contention that once the issues have been framed, no application for rejection of
the plaint could be filed as the court would have to proceed to trial. The Hon'ble
SC held that:
"The first point here is whether the power to reject the plaint
under Order 7 Rule 11 C.P.C. can be exercised even after the
framing of issues, and when the matter is posted for evidence. This
point has arisen because the Division Bench of the High Court has
referred to this aspect while dismissing the appeal.
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We may state that in the context of Order 7 Rule 11 C.P.C., a
contention that once issues have been framed, the matter has
necessarily to go to trial has been clearly rejected by this Court
in Azhar Hussain vs. Rajiv Gandhi [1986 (Supp.) SCC 315]
(p.324)] as follows:
"In substance, the argument is that the Court must proceed with the
trial, record the evidence, and only after the trial....is concluded that
the powers under the Code of Civil Procedure for dealing with a
defective petition which does not disclose cause of action should be
exercised. With respect to the learned counsel, it is an argument
which it is difficult to comprehend. The whole purpose of
conferment of such powers is to ensure that a litigation which is
meaningless and bound to prove abortive should not be permitted
to occupy the time of the Court"
The above said judgment which related to an election petition is
clearly applicable to suits also and was followed in Samar Sing vs.
Kedar Nath [1987 (Supp.) SCC 663]. We therefore hold that the
fact that issues have been framed in the suit cannot come in the
way of consideration of this application filed by the appellant under
Order 7 Rule 11 C.P.C."
14. Certainly, framing of issues is no bar to rejection of plaint.
However, the present application relates to the summary judgment sought by the
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plaintiff, thus, it can not be said to apply in present case in as much as the
grounds seeking summary judgment are different from that of rejection of
plaint. Moreover, for rejection of plaint only the averments of the plaint are
required to be considered whereas in application for summary judgment, the
defence of the defendant is also required to be considered.
15. Thus, the above said judgements as relied upon by the plaintiff are
distinguishable and not applicable to the facts of the present case for the reasons
stated above.
16. Now before coming to the merits of the case/application, it would
be necessary to discuss the law regarding Summary Judgement.
17. The provisions related to the summary judgement were added in
the CPC by way of amendment made through The Commercial Courts Act. The
intent behind incorporating the summary judgment procedure in the
Commercial Court Act, 2015, as has been observed in case of Su-Kam Power
Systems Ltd. Vs. Kunwer Sachdev & Anr. 2019 SCC Online Del 10764, is to
ensure disposal of commercial disputes in time bound manner specially in cases
where court considers that defendant has no real prospect of successfully
defending the claim and there is no other compelling reasons why the claim
should not be disposed off before recording of oral evidence. The relevant para
of the judgment is as follows:
"39. The Commercial Courts Act, 2015 has been enacted
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with the intent to improve efficiency and reduce delay in
disposal of commercial cases. The relevant portion of the
Statement of Objects and Reasons of the Commercial Courts
Act, 2015 is reproduced hereinbelow: -
―to have a streamlined procedure which is to be adopted for
the conduct of cases in the Commercial Courts and in the
Commercial Divisions by amending the Code of Civil
Procedure 1908, so as to improve the efficiency and reduce
delays in disposal of commercial cases. The proposed case
management system and provisions for summary judgment
will enable disposal of commercial disputes in a time bound
manner. (emphasis supplied)
40. Amended Order XIIIA of CPC, as applicable to
commercial disputes, enables the Court to decide a claim or
part thereof without recording oral evidence. Order XIIIA of
CPC seeks to avoid the long drawn process of leading oral
evidence in certain eventualities. Consequently, the said
provision enables disposal of commercial disputes in a time
bound manner and promotes the object of the Commercial
Courts Act, 2015."
18. With respect to the contention of the defendant that application is
not maintainable as the same is filed after framing of issues, in this regard, it is
pertinent to refer to Order XIIIA Rule 2 which provides for stage for application
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for summary judgement. It is as follows:
"2. Stage for application for summary judgment-An
applicant may apply for summary judgment at any time after
summons has been served on the defendant:
Provided that, no application for summary judgment may be
made by such applicant after the Court has framed the issues
in respect of the suit"
19. It clearly provides that no application for summary judgement can
be filed after the issues have been framed. In the case of Atanu Bhattacharjee
vs. Corporation Bank RFA 4/2020 decided on 04.04.2024, Hon'ble Delhi HC
has held that application for summary judgement can not be filed after framing
of the issues. The relevant para of the judgement are as follows:
"27. It is apparent from a plain reading of Order XIII-A of
the CPC that a Court can pass an order or a judgment on
claims at the threshold stage, before framing the issues. In
terms of Rule 2 of the said Order, an applicant is entitled to
apply for summary judgment at any time after the summons
has been served on the defendant.
28. Under Order XIII-A Rule 3 of the CPC, the Courts are
empowered to pass a summary judgment either in favour of
the plaintiff or the defendant on the ground, inter alia, that
the plaintiff or defendant has no real prospect of succeeding
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on the claim or in successfully defending the claim
respectively. It is subject to there being no other compelling
reasons as to why the claim should not be disposed of before
recording of oral evidence. Further, the said provision makes
it clear that (a) a summary judgment can only be decreed
upon an application being made by a party, (b) such an
application can only be filed after service of summons, and;
(c) such an application must be filed before the issues are
framed by the Court."
20. In the case of Bright Enterprises Pvt. Ltd. v. MJ Bizcraft LLP &
Anr. RFA (OS) Comm 8/2016 decided on 04.01.2017 , Hon'ble Delhi HC has
held as follows:
"20. Apart from this, we are of the view that the learned
Single Judge has gone wrong in invoking the provisions
of Order XIIIA CPC for rendering a summary judgment. It is
true that Rule 3 of Order XIIIA CPC empowers the Court to
give a summary judgment against a plaintiff or defendant on
a claim if it considers that - (a) the plaintiff has no real
prospect of succeeding on the claim or the defendant has no
real prospect of successfully defending the claim, as the case
may be; and (b) there is no other compelling reason why the
claim should not be disposed of before recording of oral
evidence. But, in our view, this power can only be exercised
upon an application at any date only after summons have
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been served on the defendant and not after the Court has
framed issues in the suit. In other words, Order XIIIA Rule 2
makes a clear stipulation with regard to the stage for
application for summary judgment. The window for
summary judgment is after the service of summons on the
defendant and prior to the Court framing issues in the suit.
21. The provisions relating to summary judgment which
enables courts to decide claims pertaining to commercial
disputes without recording oral evidence are exceptional in
nature and out of the ordinary course which a normal suit has
to follow. In such an eventuality, it is essential that
the stipulations are followed scrupulously otherwise it may
result in gross injustice. As pointed out above, a specific
period of time has been provided during which an
application for summary judgment can be made. That period
begins upon the service of summons on the defendant and
ends upon the court framing issues in the suit. Even if we
were to accept, which we do not, the argument of the
respondents that the Court had suo moto powers to deliver
summary judgment without there being any application,
those powers also would have to be exercised during this
window, that is, after service of summons on the defendant
and prior to framing of issues. In addition to this, we also
reiterate that, in our view, a summary judgment under Order
XIIIA CPC is not permissible without there being an
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appropriate application for summary judgment. The contents
of an application for summary judgment are also stipulated
in Rule 4 of Order XIIIA. The application is required to
precisely disclose all material facts and identify the point of
law, if any. In the event, the applicant seeks to rely on any
documentary evidence, the applicant must include such
documentary evidence in its application and identify the
relevant content of such documentary evidence on which the
applicant relies. The application must also state the reason
why there are no real prospects of succeeding or defending
the claim, as the case may be."
21. Thus, from the above said precedents, it can be concluded that an
application for summary judgement can only be filed after the service of
summons and before the issues have been framed.
22. In the present case, the issue were framed vide order dated
06.08.2024 and the application for the summary judgement has been filed on
20.09.2024. Thus, the application of the plaintiff is hit by proviso to the Order
XIII A Rule 2 CPC.
23. The window for entertaining the application has been closed by
virtue of Order XIIIA Rule 2 CPC proviso and the case is at belated stage as the
case management hearing has also taken place as required by Order XV of the
CPC, therefore, the application filed by the plaintiff for summary judgement is
dismissed for reasons stated above and disposed off accordingly.
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24. Even otherwise, the suit of the plaintiff cannot be decreed only on the
basis of fact that the defendant no. 1 and 2 have admitted that they have applied for
a loan and a Tripartite Agreement was executed between them and the plaintiff
bank and the builder, as there are still other issues regarding maintainability and
continuation of the suit which will be dealt with hereinafter in the present order
itself.
25. Another application has been filed on behalf of borrowers/
defendant no. 1 and 2 for rejection of plaint dated 07.10.2024 stating that the
plaintiff bank has not taken steps for pre institution mediation and settlement
and the same is mandatory under Section 12A of Commercial Courts Act. It is
stated that plaintiff has violated the said provisions and plaint should be rejected
as the same is barred by law.
26. Defendant no. 1 and 2 have also filed another application to
dismiss the plaint of the plaintiff on the basis of concealment of Non Starter
Certificate and breach of Tripartite Agreement and Mortgage Deed on
08.11.2024. It is stated that plaintiff had amended the plaint and the amended
plaint does not mention about the Non Starter Certificate and the Non Starter
Certificate is not even listed in the list of documents which is page 1A of the
amended plaint. As per the defendants, plaintiff/Bank has concealed the facts
and documents from the defendants and thus, plaintiff is not entitled to get any
benefit of its own mistakes and plaint is liable to be dismissed due to
concealment of material facts. It is also stated that DLSA has sent letter to
defendant no. 1, 2 and 3 for pre institution mediation and same was not
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delivered at defendant no. 1 and 2 and no notice of the pre institution mediation
was sent to defendant no. 4. i.e. builder. The plaintiff, thus, have not followed
the proper procedure and the same is against law and breach of contract,
especially, the Tripartite Agreement and the Mortgage Deed and it is stated that
the plaint of plaintiff be dismissed and no benefit of Non Starter Certificate be
given to plaintiff.
27. The plaintiff bank has filed reply to this application. In the reply, it
is accepted by the plaintiff that notice of pre institution mediation was issued to
defendant no. 1 to 3 only for settlement and despite issuance of notice, none of
them appeared. It is further stated that defendant no. 4 M/s Idea Builder is only
a proforma party and no relief of recovery has been sought against defendant
no. 4. It is stated that as per Rule 2(h) of Commercial Courts Pre Institution
Mediation and Settlement, Rules 2018, opposite party means a party against
whom relief is sought in commercial dispute. It is stated that plaintiff bank is
seeking recovery of loan amount advanced to their borrower and guarantor and
the defendant no. 4 is not the borrower, hence, its name was not mentioned in
pre institution mediation. Further, it is stated that the plaint was amended as
pointed out by the court that the interest was not separately mentioned and
thereafter, summons was issued to the parties. Further, plaintiff has stated that
defendant no. 1 and 2 appeared through counsel on 27.02.2023 and had
admitted to have received the complete set of plaint along with paper book and
there is no concealment of facts as alleged by the defendant. The plaintiff has
thus, prayed that the application of the defendant no. 1 and 2 be dismissed.
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28. No separate reply has been filed by the plaintiff to the application
under Order VII Rule 11 CPC filed on 08.11.2024 and it seems that only one
reply has been filed by the plaintiff to the application under Order VII Rule 11
CPC as well as to the application filed by the defendant for dismissal of the
plaint on 08.11.2024.
29. The defendant no. 1 and 2 in the main suit had first filed an
application under Order VII Rule 11 CPC dated 07.10.2024 on 09.10.2024 in
which the they had taken the ground that plaintiff bank has not complied with
the mandatory provision of Section 12A of Commercial Courts Act and hence,
the plaint of the plaintiff is liable to be rejected. However, when this application
was filed, the file was perused by the court and it was observed that a Non
Starter Report dated 03.02.2022 is available on record and has been filed by the
plaintiff along with plaint. The non starter report provides that the despite
service of the notice on the defendants no. 1 and 2 on 10.01.2022 and
21.01.2022, they did not provide consent to join the proceedings hence, the non-
starter report is issued. As far as the defendant no. 3 is concerned, it is stated
that defendant no. 3 remain unserved with report that addressee left the address
and therefore, non starter was issued. It was also observed that notice of the Pre
Institution Mediation and Settlement (PIMS) was issued to three parties and
therefore, record of the Pre Institution Mediation was called from Pre Institution
Mediation, Shahdara. As it was observed by the court that a Non Starter Report
was already available on record, therefore, on the next date of hearing (i.e.
08.11.2024) the application dated 04.11.2024 was moved by defendant no. 1
and 2 for dismissal of the plaint on the ground of concealment of Non Starter
Report. As already observed, Issues are already framed. Both the plaintiff and
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the defendant have filed their evidence affidavit also on record and at this stage,
it would not be proper to consider this plea of the defendant no. 1 and 2 that
they were not supplied a copy of Non Starter Report and there has been a
concealment of fact by the plaintiff and therefore, plaint of the plaintiff is to be
dismissed. It is beyond the domain of the present court to inquire whether the
pre litigation notice was served upon the defendant no. 1 and 2 or not. Once the
non-starter report is available on record, then the court has to consider the same
and such frivolous plea of the defendants that they were not served with the
notice regarding pre institution mediation is not to be entertained by the court
during trial and this prayer of the defendant no. 1 and 2, that no benefit of Non
Starter Report be granted to the plaintiff cannot be entertained at this stage.
30. However, during the course of proceedings, it was enquired by this
court that whether the plaintiff has complied with Pre-Institution Mediation qua
the defendant no. 4 and in this regard, vide order dated 09.10.2024, officials of
the DLSA were directed to send the record of the application. On 08.11.2024,
record was received and it was observed that no notice has been sent to the
builder defendant no. 4, M/s Idea Builders Pvt. Ltd. Thus, the fact as revealed
from the record of Non Starter Report and from the record as received from
DLSA, is that plaintiff has not complied with the mandatory provision of
Section 12A as far as defendant no. 4 / M/s IDEA Builders Pvt. Ltd. is
concerned and the consequences of the same shall be dealt with hereinafter in
the order. However, the application filed by the defendant no. 1 and 2 on
08.11.2024 stands disposed off accordingly as the main suit of the plaintiff bank
cannot be dismissed, even if this plea of defendant no. 1 and 2 that they were
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not supplied with a copy of Non Starter Report is considered to be true.
31. Now taking up the application under Order VII Rule 11 CPC filed
by the plaintiff Bank in the Counter Claim seeking rejection of counter claim
filed by claimants/defendant No.1 and 2/borrowers dated 30.03.2024. It is stated
that the banks deal with public money and the banks cannot be converted to
developers, builders or authority on whom responsibility is loaded to ensure that
the project is completed. Further, it is stated that Insolvency and Bankruptcy
Code, 2016 is always open to home buyers to approach the Real Estate
Regulatory Authority for completion of project. It is stated that NCLT Delhi
vide order dated 05.07.2023 had accepted the insolvency application of
defendant no. 4 / M/s Idea Builders in the matter titled as Anil Singh Vs. M/s
IDEA Builders Pvt. Ltd. and moratorium under Section 14 of the Insolvency
and Bankruptcy Code, 2015 has been declared thereby prohibiting proceedings
against corporate debtor/builder defendant no.2 in the counter claim. Copy of
order dated 05.07.2023 is also filed. It is also stated that the Hon'ble Supreme
Court has also provided Interim Protection to the defendant no. 4 (i.e. M/s
IDEA Builders) (defendant no. 2 in the Counter claim) in the SLP No. 10798-
10799, titled as Aakash Bansal Vs. Union of India. It is stated by the bank that
there has been breach of contract by the Builder and the Counter Claimants
have every right to seek remedy against the Builder by filing claim with Interim
Resolution Professional. Prayer has been made that counter claim may be
dismissed with cost.
CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel
CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.20 of 39
32. As per the said order dated 05.07.2023 passed by the Hon'ble
NCLT in Company Petition IB (IBC) no. 1016/2020 seeking to initiate the
Corporate Insolvency Resolution Process (CIRP) against M/s Idea Builders Pvt.
Ltd., after considering the submissions of both the side, the Hon'ble NCLT has
been pleased to declare the Moratorium on the builder i.e. M/s Idea Builders
Pvt. Ltd. and appointed Mr. Rakesh Bhatia as Interim Resolution Professional.
33. Reply has been filed on behalf of Ms. Charu Goel and Sh. Atul
Singhal/Counter claimants/borrowers stating that the alleged loan is secured
against the property which was mortgaged with the bank and they have not got
possession of the said property till date and therefore, they have right to claim
the flat/property or the money deposit and hence, the claim is very much
maintainable. It is stated that in case the allotment is cancelled, then the bank
was to refund the amount to the borrower after deduction of the bank dues etc.
According to the counter claimant/borrower, the bank has no right to deduct the
amount, on the other hand, they have the right to revise the amount as per terms
and conditions of the Tripartite Agreement, as the flat is not in their possession.
The counter -claimant / borrower has stated that they have paid Rs.8,00,465/- to
the plaintiff, Rs.4,37,000/- to the builder and the amount of Rs.11,50,000/- was
disbursed by the plaintiff bank in the account of the builder / contractor. The
counter claimant has further stated that plaintiff bank and the builder are in
collusion with each other to cheat the borrower, as hundreds of borrowers has
taken loan from the plaintiff bank on the request of the builder. Prayer has been
made to dismiss the application. It has not been specifically denied in the
application that moratorium has been declared against M/s Idea Builders (P)
CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel
CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.21 of 39
Ltd. The counter claimant has only stated that they cannot comment regarding
the same due to the lack of knowledge.
34. During the course of proceedings, another application under Order
VII Rule 11 CPC was filed dated 17.09.2024 by the plaintiff bank in the counter
claim. It is stated in the application that the counter claim related to a
commercial dispute has to mandatorily follow the rules and procedures
prescribed for a commercial suit. It is stated that in the present case, counter
claimant/defendant did not choose to appear during the process of pre-
institution mediation which was initiated by the plaintiff bank, as a result of
which it was returned a 'non-starter', thus, the counter claimant/borrower had
avoided the obligatory requirement of Pre Institution Mediation under Section
12A of the Commercial Courts Act. The applicant/bank has relied upon the
judgment of Hon'ble Apex Court titled as Patil Automation Pvt. Ltd. Vs.
Rakheja Engineers Pvt. Ltd., 2022 SCC Online SC 1028; the judgment of
Hon'ble High Court of Delhi titled as Aditya Birla Fashion & Retail Ltd. Vs.
Mrs. Saroj, CM (M) No. 459/2023, dated 03.09.2024 and Ashok Kalra Vs.
Wing Cdr Surendra Agnihotri 2020 2 SCC 394. Thus, it is stated that under
Commercial Courts Act, counter claimant does not have the absolute right to
file counter claim with substantive delay even if limitation period provided has
not elapsed. Further, it is stated that claimant herein never sought permission of
court to file the counter claim after substantive delay as it tantamount to
subsequent pleading within the meaning of Order 8 Rule 9 CPC. The main
ground in the application is that the counter claimant has not followed the
procedure of Pre Institution Mediation before filing the counter claim and
CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel
CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.22 of 39
therefore, the present counter claim is not maintainable. Prayer has been made
for rejection of claim of the claimant/respondent under Order VII Rule 11 CPC.
35. Reply on behalf of counter claimant/borrower filed wherein it is
stated that repeated applications under Order VII Rule 11 CPC is against the
law. It is stated that Section 12A of Commercial Courts Act is mandatory,
however, the same was not complied by bank/plaintiff in CS (Comm.) No.
649/2022. Remaining material averments made in the application are denied
and prayer has been to dismiss the application.
36. The plaintiff Bank has thus, filed two applications under Order VII
Rule 11 CPC for rejection of plaint. The bank has contended two main grounds
for the rejection of the plaint, counter claim of defendant no.1 and 2 namely:
Non compliance of Section 12A of the Commercial Courts Act, 2015
before instituting the present counter claim.
Moratorium being declared against defendant no. 2 i.e. M/s Idea Builders
(P) Ltd.
37. On the otherhand, defendant no. 1 and 2 has also filed an
application dated 07.10.2024 for rejection of plaint filed by the plaintiff bank on
the ground of non-compliance of Section 12A. PNB Bank, however, had filed
an application for Pre Institution Mediation as per Non Starter Report dated
03.02.2022, but, it is also an admitted position that no Pre Institution Mediation
was conducted as far as M/s Idea Builders (P) Ltd./defendant no. 4 is concerned.
CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel
CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.23 of 39
Thus, in the factual matrix of the case, it is relevant to discuss the
law regarding the compliance of Section 12A.
38. In the case of Aditya Birla Fashion and Retail Limited vs. Mrs.
Saroj Tandon CM(M) 459/2023 decided on 02.09.2024, the Hon'ble Delhi HC
has in respect of suits/counter claim, which do not claim/contemplate any urgent
relief, observed:
"27. Can it be said that there is no pre-requisite to abide by
the mandatory provision of Section 12-A of the Commercial
Courts Act, prior to the filing of the counter-claim.
28. Can it be given a go-bye?
29. The answer has to be in empathic "no".
.....
35. Evidently, recourse to section 12-A of Commercial Courts Act is mandatory in nature."
39. It is also pertinent to mention here that the above said judgement has attained finality as the same was challenged before the Hon'ble SC, vide SLP (C) no. 25893/ 2024 titled as Aditya Birla Fashion and Retail Ltd. v. Saroj Tandon, however, the challenge was not accepted and the SLP was dismissed vide order dated 11.11.2024.
40. The Hon'ble Delhi HC in the case Cosmol Energy Private Limited Vs Anil Kumar Pitti (CS(Comm) 414/2024) decided on 10.02.2025 has held that the counter claim and the civil suit can not be held to be on equal footing CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.24 of 39 and therefore, the civil suits have to comply with mandatory requirement of PIMS as provided in Section 12A of the Commercial Courts Act. The facts of the said case were such that the civil suit was filed by the plaintiff against the defendant for recovery of Rs. 3,80,69,259/- along with interest. The plaintiff had also filed an application under section 12A of the Act to exempt him from complying with the provision of PIMS. Before the institution of the present suit, the defendant had also filed an application to refer to matter between the parties to mediation. Thus, the plaintiff has argued that there is no mandatory requirement to comply with PIMS, as the matter was already referred to mediation and a fresh PIMS was not mandated. The plaintiff in the said case of Cosmol Energy, had also relied upon the judgement of Sanjana Agarwal Vs. Namoshivai Apparels (P) Ltd. 2024 SCC Online Del 9272 to contend that since the PIMS was already undertaken by the parties and in as much as 12 sitting were conducted between the parties which remained unsuccessful and the subject matter in dispute in both the matters was same, thus, requirement of PIMS was not mandated.
41. The Defendant in the Cosmol Energy's case had argued that requirement of PIMS is a mandatory requirement as mandated by section 12A of the Act and the submission of the plaintiff that the suit need not undergo the PIMS should not be accepted. The Ld. Counsel for the defendant had also relied upon the case of Aditya Birla Fashion and Retail Ltd. v. Saroj Tandon 2024 SCC Online Del 6099. The defendant argued that merely because the parties had undergone mediation that does not absolve the plaintiff to comply with the requirement of section 12A of the Act.
CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.25 of 39
42. The Hon'ble Delhi HC distinguishing the facts of the case from the facts of Sanjana Agarwal's Case (Supra) has held that law laid down in Sanajna Agarwal (supra) was specifically for the situations wherein a counter-claim is instituted during the pendency of a civil suit and it was also held that in the case of Sanjana Aggarwal, Hon'ble Delhi HC did not held that counter claim and civil suit are on equal footing and therefore, the contention of the plaintiff that civil suit need not comply with conditions of Section 12A is not sustainable. The relevant para of the judgement are re-produced as under:
"12. The principle laid down in Sanjana Aggarwal pertains specifically to situations where a counter-claim is instituted during the pendency of a civil suit. The underlying objective of the Commercial Courts Act is to ensure the expeditious resolution of commercial disputes. In paragraph 25 of Sanjana Aggarwal, the Court observed that once a party has already undertaken pre institution mediation, requiring the opposite party to do the same for a dispute that is wholly identical would be counter-productive.
13. It is seen that the observations made in Sanjana Aggarwal pertain to a counter-claim only, and nowhere does the said decision indicate that the counter-claim is on equal footing to a fresh civil suit and therefore, the fresh civil suit need not comply with the rigors of Section 12A.
.....
CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.26 of 39
14. The record demonstrates that the defendant had independently sought recourse to mediation for the redressal of his grievance. However, the claims of the plaintiff have not yet undergone the process of mediation.
.....
16. Resultantly, the instant civil suit stands dismissed, along with pending application, reserving liberty to the plaintiff to re-institute the same in case so necessitated, after resorting to the proceedings as contemplated under Section 12A of the Commercial Courts Act, 2015."
43. In the case of Sanajana Agarwal Vs Namoshivai Apparels Private Limited RFA(COMM) 212/2023 (2024:DHC:9987-DB), Hon'ble Delhi HC has held that if a counter claim filed by the counter claimant is on same subject matter then it would not be required to once again comply with Section 12A of the Act as the parties had already complied with the said requirement and to direct the parties to once again comply with the PIMS would defeat the purpose of the Act.
44. The appellant had filed the appeal in Sanjana Agarwal's case against the order of commercial court whereby the trial court has dismissed the suit of the plaintiff and allowed the counter claim of the defendant. The plaintiff had taken the plea that the counter claim is not maintainable as the defendant had not complied with the requirement of section 12A of the Commercial CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.27 of 39 Courts Act. The Hon'ble HC held that when the subject matter of the dispute is entirely same, then the parties are not bound to once again undergo the PIMS proceedings as it would defeat the purpose of Commercial Courts Act. the relevant part of the judgement is as follows:
"25. There is no cavil that under the provisions of the Code of Civil Procedure, 1908, a counter-claim is to be treated as a plaint and governed by the rules applicable to plaint. However, in the case of commercial disputes to say that each counter-claim will be subject to pre-institution mediation process separately when the Plaintiff has already exhausted the remedy of pre-institution mediation, may not be apposite. The object of the CC Act is to ensure speedy resolution of commercial disputes to accelerate economic growth and improve the international image of the Indian Justice System and to restore the faith of the investors. Once a party has taken steps to exhaust the remedy of pre-institution mediation to then ask the opposite party in a case where the subject matter of dispute is entirely the same, to once again undertake pre-institution mediation, prior to filing its counter-claim would defeat the very purpose of the CC Act and delay adjudication of the commercial dispute between the parties."
CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.28 of 39 Thus, in the cases where the counter claim is filed during the pendency of the civil suit and the subject matter of the dispute is same, then the requirement of complying with the provision of section 12A by the counter claimant is not necessary.
45. It is also settled position of the law that the once a moratorium is declared on any corporate debtor then as per section 14(1) IBC, 2016, no suit can either be instituted or continued against the corporate debtor. Ld. Counsel for the applicant/ bank has stated in their application dated 30.03.2024 that moratorium has been declared on the builder i.e. M/s Idea Builders Pvt. Ltd.
46. It is also an admitted position that the builder has not delivered the said promised unit/houses to the buyers and even moratorium has been declared against the builder. The Hon'ble SC in the case of Supertech Urban Home Buyers Association (SUHA) Foundation vs Union of India SLP(c) No. 7626/2023, while dealing with the petitions filed by the aggrieved homebuyers regarding the concerning situation where the builder cum developers advertised the 'Subvention Schemes' assuring the payment of EMIs of the Home loans taken by the homebuy- ers to purchase the unit in their project till a specified cut-off date or till delivery of possession, observed that the such schemes were implemented by way of Tripartite agreement between the bank, homebuyer and builder.
47. The Hon'ble SC in Supertech Urban's case has also observed that the builders have started defaulting and resultantly, Banks are demanding the CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.29 of 39 payment from the buyers and thus, the buyers were bearing the brunt of such failures in view of consequential coercive actions against the buyers, despite the units being incomplete. The relevant observation of the SC is as follows:
"5. On receipt of that information, this Court, on 04.03.2025, prima facie found that there was some unholy nexus between the banks/Housing Financial Corporations on one hand and the builder-cum-developers on the other. It was in this context that the Central Bureau of Investigation was asked to be represented on the next date of hearing."
48. Thus, observing the systematic failure of statutory and government authorities to discharge their functions, circumvention of regulatory framework by Banks and Housing Financial Corporations, and the resultant illicit benefits said to have been drawn by builders/developers at the cost of the homebuyers, who are now bearing the brunt of such failures, the Hon'ble SC vide order dated 29.04.2022 has directed the CBI to register the preliminary enquiry and to submit an interim report on the said nexus.
49. Perusal of the main case reveals that the defendant no. 4 / builder was initially not served and the summons sent to the defendant no. 4 had returned back with the report of "left" as per order dated 31.01.2023. On 27.02.2023, thereafter, plaintiff sought time to trace the fresh adress of defendant no.4. An application under Order V Rule 10 CPC was moved by the CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.30 of 39 plaintiff bank for substituted service and vide order dated 19.05.2023, the court observed that the summons isused to defendant no.4/builder was received back with the report that no such office/firm at the given address exist and the premises belongs to one Mr. Suresh Chug. In view of the report, the plaintiff bank was directed to produce the address verificaton report of defendant no.4 in main case/builder prior to sanction of the loan. On the next date of hearing, counsel for plaintiff bank reported that inspection report has not been received from the bank and some more time was sought for producton of the inspection report. Thereafter, none appeared on behalf of plaintiff for 2 - 3 dates. On 16.10.2023, ld. Proxy counsel for the plaintiff reported that the file of Inspection Report was not traceable. One more last and final opportunity was granted to the plaintiff to furnish inspection report of the address verification of defendant no.4 in main case/builder prior to sanction of loan. Inspection Report was again not furnished on 06.11.2023 and thereafter, an affidavit of Chief Manager of plaintiff bank was filed stating that verification report/inspection report of the address of defendant no. 4 is not traceable. Thereafter, on 16.04.2024, an application was filed by plaintiff bank regarding submitting of verification and inspection report in which again it was stated that the verification / address report was not traceable for the reasons attributable to the fact that the account of the builder was being maintained at Kaushambhi, Ghaziabad Branch and the loan account of borrower was being maintained at Anand Vihar Branch, whereas, the project was approaved by the Circle Office Noida of the Bank after due diligence. It was also stated in the said application that NCLT vide order dated 05.07.2023 has accepted the Insolvency application of the builder/defendant no.4 and moratorium has been declared and interim resolution has been pointed out vide order dated 05.07.2023. Needless to mention that the CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.31 of 39 fact of moratorium being declared was brought to the notice of the court only after counter claim was filed by the borrowers and not when the copy of inspection report was sought to be filed by the court in the main case.
50. Initially, the address of defendant no.4 was given as D-248, Street No.10, Laxmi Nagar, Delhi - 110092 and thereafter, the address of C-294, 1st Floor, Near Park, Vivek Vihar, New Delhi - 110095 was furnished in the memo of parties. The defendant no. 4 could not be served even at the said address. Summons issued at the address of Vivek Vihar also returned back with the report that no firm or office exist at the said address and the owner was Mr. Suresh Chug and after receiving of this report, the court has asked for verification report from the bank of defendant no. 4 which according to the plaintiff bank is not traceable. The present case is also one of those cases which smells of some unholy nexus between the banks/Housing Financial Corporations on one hand and the builder-cum-developers on the other hand. With the above observation, the court refrains itself from commenting any further on this aspect.
51. The following three applications now remain to be decided i.e. (i) application of defendant no. 1 and 2 for rejection of plaint under Order VII Rule 11 dated 07.10.2024 in main suit; (ii) the application under Order VII Rule 11 CPC seeking rejection of counter claim filed by claimant / defendant dated 30.03.2024 (iii) the application under Order VII Rule 11 CPC dated 17.09.2024 filed by plaintiff bank.
CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.32 of 39
52. The admitted position is that (i) plaintiff bank has complied with the pre institution mediation as per Non Starter Report dated 03.02.2022 as per which the Pre Institution Medaition was instituted on 20.01.2021 and Non Starter Report was issued on 03.02.2022 but the Pre Institution Mediation was only carried out with respect to defendant no. 1 to 3 i.e. Principal borrower and the guarantor and not against the defendant no. 4 i.e. M/s Idea Builders Pvt. Ltd.
(ii) Defendant no. 1 and 2 (borrower) have not complied Pre Institution Mediation before filing the counter claim / separate suit during the pendency of the main suit.
(iii) Moratorium has been declared against the M/s Idea Builders Pvt. Ltd. / (Builder) by the NCLT vide order dated 05.07.2023.
53. The bone of contention of the entire dispute and the basis of grant of loan is the tripartite agreement dated 26.12.2013 executed between the Counter claimant/ defendant, Bank and M/s Idea Builders Pvt. Ltd., whereby a loan of Rs. 15,00,000/- was sanctioned and an amount of Rs. 11,50,000/- was disbursed to M/s Idea Builder Pvt. Ltd.
54. The Hon'ble SC, in catena of judgements has held that a necessary party is a party in absence of which no effective decree or order can be made. In this regard, it is relevant to refer to case of Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre & Hotels AIR 2010 SUPREME COURT 3109 wherein, it was held that "A 'necessary party' is a person who ought to CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.33 of 39 have been joined as a party and in whose absence no effective decree could be passed at all by the Court".
55. Since, the tripartite agreement was executed between the bank, borrower and the builder and the bank has also impleaded the builder as one of the defendants in CS(Comm) no. 649/2022 and the relief is claimed against all the defendants, jointly and severally, therefore, the builder i.e. M/s. Idea Builders Pvt. Ltd. is a necessary party to the main suit and the counter claim. Moreover, it is pertinent to refer to the para 5 to 9 of the WS filed by the bank to the counter claim of the counter-claimant. It is re-produced as follows:
"That the contents of Para 5 to 9 of the counter claim is wrong and denied as stated. The claimant is strict proof of the averments made in para under reply. It is worthwhile mentioning here that there has been breach of contract by the builder and the claimant has every right to seek remedy against the builder by filing claim with Interim Resolution professional....."
56. Para 8 of the application filed by the bank under Order VII Rule 11 CPC dated 30.03.2024 is also relevant to be referred. It is as follows:
"That it is worthwhile mentioning that there has been breach of contract by the builder and the claimant has every right to CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.34 of 39 seek remedy against the builder by filing claim with Interim resolution professional."
57. Since on the basis of the above pleadings, it is clear that presence of M/s Idea Builders Pvt. Ltd. (defendant no. 2 in counter claim and defendant no.4 in main suit) is necessary for the effective adjudication of the main suit and the counter claim/separate suit by the borrowers. However, as moratorium has been declared upon M/s Idea Builders Pvt. Ltd., thus, proceedings cannot be continued against the builder. Moreso, the plaintiff/ bank in the CS (Comm) No. 649/2022 has filed the following documents:
Letter issued by the M/s Idea Builders Pvt. Ltd. regarding the permission to create an equitable mortgage in favour of the bank. Legal notice dated 22.01.2021 sent by the plaintiff bank and addressed to M/s Idea Builders Pvt Ltd.
58. Perusal of the above said documents reveals that the possession of the property is not given to the counter-claimant and still remains with the builder. Even if for the sake of arguments it is considered that decree could have been drawn, the question as to how will the bank execute it when the possession of the mortgaged property/flat is not with the counter-claimant and in view of statutory bar created by Section 14 of Insolvency and Bankruptcy Code, 2016, as no orders can be passed against builder. Thus, no effective decree could be passed in the suit in the absence of M/s Idea builder Pvt. Ltd.
CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.35 of 39
59. Since defendant no. 2 / Builder is a necessary party and no effective decision can be made in its absence, thus, the counter claim of the defendant/borrowers is liable to be not proceeded further on the ground that moratorium has been declared on the defendant no. 2. Thus, for the reasons stated above, the counter claim of the counter claimant/borrowers cannot be continued against the builder and in the absence of builder also against the bank due to absence of necessary party.
60. The defendant no. 1 and 2 have also argued that since no notice was sent to defendant no. 4, thus, entire plaint of the plaintiff bank (main suit) is also liable to be rejected.
61. In this regard, the plaintiff has replied that the plaintiff is not seeking any relief against the defendant no. 4 and defendant no.4 is merely a proforma party. Thus, there was no need to comply with the pre-institution mediation qua the defendant no. 4. Plaintiff/ bank has admitted that pre- institution mediation proceedings as per Section 12A of Commercial Courts Act against the defendant no. 4/ builder, were not undertaken.
62. Apart from what has been observed above, it is pertinent to note here that the plea of the plaintiff bank that defendant no. 4 / builder is a proforma party is contrary to the relief prayed by the plaintiff in its prayer clause wherein decree against all the defendants jointly and severally has been prayed for. The relief as prayed for is re-produced as below:
CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.36 of 39 "a) to pass a decree of Rs. 14,30,849/- (Rupees fourteen lacs thirty thousand eight hundred forty nine only) in favour of the plaintiff bank and against the Defendants jointly and severally;
.....
d) Pass such other order/ orders which this Hon'ble court may deem fit and proper in the facts and circumstances of the case in favour of the plaintiff Bank and against the Defendants."
63. Further, the plaintiff bank is taking contradictory plea by stating that the suit/counter claim of the defendants/borrower can not be proceeded with as moratorium has been issued on the M/s Idea Builders Pvt Ltd but the suit filed by the plaintiff can be proceeded with as the builder was only a performa party in the suit filed by the plaintiff/Bank. This plea of the defendant can not be accepted as it is a settled principle of law that law applies equally on both the parties. If the suit of the defendant can not be continued in view of moratorium being declared on the builder, the suit of the plaintiff will also have to be dismissed and the suit of the plaintiff Bank can not be treated on a different footing. Moreover, the plea of the plaintiff that defendant no. 4 is merely proforma party and no relief is prayed against him, has been taken by the plaintiff only for the first time in the reply to the application under Order VII Rule 11 CPC and no such averment/statement finds mention in the plaint. Therefore, this plea of the plaintiff is only an after thought and is not sustainable.
CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.37 of 39
64. Ld. Counsel for the plaintiff/bank has admitted that a moratorium has also been declared on defendant No. 4 i.e. M/s Idea Builders Pvt. Ltd. Relief claimed by the plaintiff/Bank in their plaint is claimed against all the defendants jointly and severally. The relevant part of the prayer clause has already been extracted above. The plaintiff nowhere in the plaint has averred that defendant no. 4 is merely a proforma party and they have no liability to pay. Thus, the presence of the defendant no. 4 is very much essential for the effective decision of the case. Thus, in view of the statutory bar created by the moratorium, no proceedings against the defendant no. 4 can continue and thus, in its absence, the suit of the plaintiff bank also cannot be effectively adjudicated.
65. The reasoning regarding the moratorium being declared on Defendant no. 4 i.e. M/s Idea Builders Pvt. Ltd. and no effective decree can be passed in its absence has already been dealt in the earlier half of this order and the same is not repeated herein for sake of brevity. Therefore, the suit of the plaintiff/bank also cannot be proceeded further and it would not be in the interest of justice to proceed with the case and to pass decree, if any, against the remaining defendants in the absence of defendant no. 4/Builder. Also, it is equally well settled that act of the court shall prejudice no one. Thus, the main suit of the plaintiff/bank can not be proceeded further and is thus liable to be rejected.
66. Before parting, the plaintiff bank has argued that the counter claim filed by the defendant/ counter claimant shall be treated as a separate suit and not a counter claim as it was not accompanied with the WS. However, this plea CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.38 of 39 of the defendant does not affect the final outcome of the decision as be it a counter claim or the civil suit, the Pre-institution Mediation has not been complied with against the builder, M/s Idea Builders Pvt. Ltd. Moreover, moratorium being declared on M/s Idea Builders Pvt Ltd will remain unchanged and in view of the statutory bar created by the IBC, both the civil suit filed by the plaintiff bank and counter claim/suit filed by the borrowers during the pendency of the main suit, cannot be proceeded.
67. Thus, both the main suit as well as counter claim cannot be proceed further in view of the fact that plaintiff bank has not complied with the mandatory provision of Section 12A of Commercial Courts Act as far as the defendant no. 4 / M/s IDEA Builders Pvt. Ltd. is concerned and also in view of the fact that the moratorium has been declared against the defendant no. 4 / M/s IDEA Builders Pvt. Ltd. and no proceedings can be initiated or continued against M/s IDEA Builders Pvt. Ltd. and in the absence of builder M/s Idea Builder Pvt. Ltd. which is a necessary party to the lis, no effective adjudication can be arrived at between the parties.
Both the files be consigned to Record Room.
Copy of the order be placed in both the files.
Digitally
signed by
KIRAN
KIRAN BANSAL
BANSAL Date:
2025.05.13
17:19:07
+0530
(Kiran Bansal)
District Judge, Commercial Court-02,
Shahdara District, Karkardooma Courts,
Delhi / 13.05.2025
CS (Comm) No. 649/2022 Punjab National Bank Vs. Ms. Charu Goel
CS (COMM) 10/24 Ms. Charu Goel Vs. Punjab National Bank & Anr. Page No.39 of 39