Delhi District Court
M/S. Prosper Housing Finance Ltd. vs . Smt.Prabha Rastogi on 3 October, 2019
CS No. 10372/16
M/s. Prosper Housing Finance Ltd. Vs. Smt.Prabha Rastogi
and Ors.
IN THE COURT OF VIKAS DHULL: ADDITIONAL
DISTRICT JUDGE01, TIS HAZARI COURTS (WEST),
DELHI
CS No. 10372/16
In the matter of :
M/s.Prosper Housing Finance Ltd.
(Earlier Known as HBN Housing Finance Ltd.)
Head Office at: A1/5, First Floor
Main Rohtak Road, Paschim Vihar
New Delhi110063.
... Plaintiff
Versus
1. Smt.Prabha Rastogi
W/o Sh.Vinay Shankar Rastogi
R/o Flat No. 505, Ground Floor
BlockCD, Pocket1
Shalimar Bagh
Delhi110088.
Also at :
Rastogi Fabrication Gagan Fabrics
WZ280, Shakur Pur Village
New Delhi110034
Page: 1/12
CS No. 10372/16
M/s. Prosper Housing Finance Ltd. Vs. Smt.Prabha Rastogi
and Ors.
2. Mr.Vijay Shankar Rastogi
S/o Sh.Hari Shankar Rastogi
R/o Flat No.505, Ground Floor
BlockCD, Pocket1
Shalimar Bagh
Delhi110088
Also at:
Gagan Fabrics
WZ280, Shakur Pur Village
New Delhi110034
3. Mr.Sumit Bansal
R/o H.No. 1, BlockA, Mange Ram Park
Budh Vihar, Phase1
New Delhi 110086
4. Mr.Pradeep Kumar Dua
R/o H.No. 35, First Floor
BlockB7A
Pocket7, Sector17
Rohini
Delhi110085
... Defendants
Date of institution of suit : 12.11.2013
Date on which judgment reserved : 21.09.2019
Date on which judgment pronounced : 03.10.2019
Page: 2/12
CS No. 10372/16
M/s. Prosper Housing Finance Ltd. Vs. Smt.Prabha Rastogi
and Ors.
JUDGMENT
1. This is a suit filed by plaintiff under Order XXXIV CPC for recovery of Rs. 19,74,263/ alongwith interest against defendants.
2. The brief facts which can be taken out from the plaint are that defendants no.1 and 2 had taken a housing loan from plaintiff of Rs.18,00,000/ for purchasing of house bearing House No. 51, Pocket6, Ground Floor, Sector21, Rohini, New Delhi.
3. In the said loan, defendants no.3 and 4 stood as guarantors and said loan was required to be repaid in 180 equated monthly installments of Rs. 26,437/ each. The defendants had executed Home Loan Agreement, Guarantee Agreement, demand promissory note and Equitable Mortgage Page: 3/12 CS No. 10372/16 M/s. Prosper Housing Finance Ltd. Vs. Smt.Prabha Rastogi and Ors.
by depositing Original title deeds in respect of property bearing House No. 51, Pocket6, Ground Floor, Sector21, Rohini, New Delhi with the plaintiff. However, after taking loan, defendants failed to pay the loan amount as per the terms and conditions of the agreement dated 12.01.2012 and despite several requests and reminders, defendants failed to regularize the payment and committed defaults in repayment schedule. Even cheque issued for the payment of dues was dishonoured for which plaintiff had filed a case under Section 138 of the Negotiable Instruments Act, 1881.
4. It was further averred in the suit that as on 31.03.2013, an amount of Rs.19,74,263/ is due and payable by defendants. Accordingly, a prayer was made for passing a preliminary decree with regard to aforementioned amount.
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5. Defendants no. 3 and 4 were duly served with the summons.
6. Since defendants no. 1 and 2 could not be served in the ordinary way, therefore, they were served by way of publication in the newspaper " "Amar Ujala" dated 08.12.2016. Despite service, defendants no.1 and 2 did not appear. Accordingly, they were proceeded exparte vide order dated 21.04.2017.
7. Pursuant to service, defendants no.3 and 4 filed their written statements.
8. In the written statement filed by defendant no.3, it was submitted that the present suit is not maintainable as defendant no.3 has been discharged from his liability as a guarantor as plaintiff had accepted the cheques from defendants no.1 and 2 without his knowledge.
9. In reply on merits in the written statement, it was Page: 5/12 CS No. 10372/16 M/s. Prosper Housing Finance Ltd. Vs. Smt.Prabha Rastogi and Ors.
admitted by defendant no.3 that he stood as a guarantor for defendants no.1 and 2 but only in terms of agreement dated 12.01.2012 and not for subsequent agreements entered into between plaintiff and defendants no.1 and 2.
10. It was further admitted by defendant no.3 that he is responsible in case of any failure to fulfill the agreement dated 12.01.2012 by defendants no.1 and 2.
11. It was submitted that defendants no.1 and 2 misguided the defendant no.3 and obtained his signatures on various documents.
12. It was admitted that defendants no. 1 and 2 mortgaged their property bearing no. H.No. 51, Pocket6, Ground Floor, Sector21, Rohini, New Delhi with the plaintiff by depositing original title deed. Remaining averments made in the plaint were denied.
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13. In the written statement filed by defendant no.4, it was submitted that defendant no.4 never stood as a guarantor for defendant no.1 and never signed any document as Guarantor and does not even know defendants no.1 and 2.
14. It was submitted that defendant no.4 at the instance of one Sh.Ramesh Kumar, an associate of defendants no.1 and 2 was made witness to the financial facility granted by plaintiff to the defendant no.1.
15. It was submitted that alleged documents are inadmissible in law in as much as at the time of obtaining signatures of defendant no.4, the same were having blank columns and even the same were not allowed to be read by defendant no.4 before signing.
16. It was submitted that plaintiff is having no cause of action to file the present suit against him.
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17. In reply on merits in the written statement, it was submitted by defendant no.4 that he has no knowledge of sanction of Rs.18,00,000/ as loan by plaintiff in favour of defendants no.1 and 2 vide Home Loan Agreement in as much as he was never a party to the alleged agreement.
18. It was denied that defendant no.4 in his individual capacity guaranteed to pay to plaintiff the amount as per the agreement.
19. It was further denied that said guarantee is continuing guarantee or that defendant no.4 ever agreed that in case of default by defendants no.1 and 2, he shall be responsible for the payment of the loan amount.
20. It was submitted by defendant no.4 that he was merely a witness to the blank documents/papers whereupon his signatures were obtained by the officials of plaintiff without Page: 8/12 CS No. 10372/16 M/s. Prosper Housing Finance Ltd. Vs. Smt.Prabha Rastogi and Ors.
filling in the columns and without even allowing him to read the same. Remaining averments of the plaint were denied. After filing of written statements by defendants no.3 and 4, they stopped appearing. Therefore, all defendants were proceeded exparte on 21.04.2017.
21. Thereafter, the matter was adjourned for exparte evidence of the plaintiff.
22. In his evidence, plaintiff had examined its AR i.e. Sh.Pavinder Khanna as PW1, who had deposed on oath all the facts as stated in the plaint.
23. Further, PW1 Sh.Pavinder Khanna had also filed on record sanction letter of Rs.18,00,000/ Ex.PW1/3, Home Loan Agreement Ex.PW1/4 executed by defendants no.1 and 2, Guarantee Agreement executed by defendants no.3 and 4 Ex.PW1/8, Copy of sale deed of property bearing Page: 9/12 CS No. 10372/16 M/s. Prosper Housing Finance Ltd. Vs. Smt.Prabha Rastogi and Ors.
House No. 51, Pocket6, Ground Floor, Sector21, Rohini, New Delhi Ex.PW1/9 and the certified true copy of statement of account Ex.PW/10 (colly). No other witness was examined by plaintiff. Accordingly, plaintiff's evidence was closed. Thereafter, the matter was posted for final arguments.
24. I have heard Sh.Aditya Sharda, Ld.counsel for plaintiff and have carefully perused the material on record.
25. In the light of unrebutted testimony of PW1 Sh.Pavinder Khanna and having regard to the documents filed on record i.e. Home Loan Agreement executed by defendants no.1 and 2 Ex.PW1/4, Guarantee Agreement executed by defendants no.3 and 4 Ex.PW1/8, Copy of title deed of property bearing House No. 51, Pocket6, Ground Floor, Sector21, Rohini, New Delhi Page: 10/12 CS No. 10372/16 M/s. Prosper Housing Finance Ltd. Vs. Smt.Prabha Rastogi and Ors.
Ex.PW1/9 and certified true copy of statement of account Ex.PW1/10 (colly), plaintiff has proved its case that defendants no.1 and 2 after availing home loan have only made payment of few installments and have defaulted in repayment schedule as per Home Loan Agreement Ex.PW1/4. Therefore, defendants no.1 and 2 alongwith defendants no.3 and 4 are jointly and severally liable to pay Rs.19,74,263/to the plaintiff. Accordingly, a preliminary decree is hereby passed under Order XXXIV CPC in favour of plaintiff directing defendants to pay jointly and severally a sum of Rs.19,74,263/ alongwith interest @ 16% per annum as per House Loan Agreement Ex.PW1/4 from the date of filing the suit till its repayment and cost of the suit within a period of three months from today. Copy of judgment be sent to Page: 11/12 CS No. 10372/16 M/s. Prosper Housing Finance Ltd. Vs. Smt.Prabha Rastogi and Ors.
defendants for information and compliance.
26. Decree sheet be prepared accordingly.
Digitally signed by VIKAS VIKAS DHULL
DHULL Date:
2019.10.09
16:23:14 +0530
Announced in the open court
Dated: 03.10.2019 (Vikas Dhull)
ADJ1, Tis Hazari Courts, West, Delhi Page: 12/12