Delhi District Court
State Bank Of India vs Vikram Singh on 26 September, 2023
IN THE COURT OF SH. RAKESH SYAL,
DISTRICT JUDGE (COMMERCIAL COURT)-03,
SOUTH-WEST DISTRICT, DWARKA COURTS,
NEW DELHI.
CS (COMM) 452/2022
State Bank of India
A body corporate duly constituted under the State Bank of India Act,
1955, having its Head Office/Central Office/Corporate Office at State
Bank Bhavan, Madam Cama Road, Mumbai-440024, one of its Local
Head Offices at 11, Sansad Marg, New Delhi-01, one of its Branches
at Dwarka, and RACPC at A1/24, Janakpuri, Najafgarh Road, New
Delhi-110058.
Through its Manager, Ms. Deepika Mendiratta.
Email:[email protected]
Mobile no. :9810614568.
....Plaintiff
VERSUS
1. Sh. Vikram Singh
S/o Sh. Mithilesh Kumar Singh,
R/o Flat 551, Azad Hind Apartment, Sector-9, Dwarka,
Amberhai, Sector 6, Dwarka, South West Delhi,
New Delhi-110075.
Also at:
House no. 507, Plot 11, Railway Staff Apartment,
Sector 19, Dwarka, New Delhi-110075.
CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 1 of 21
Also at:
Flat 3032, Soloman Heights, Bhagwati CGHS,
Sector 19B, Dwarka, New Delhi-110075.
2. M/s Raheja Developers Limited
Site Office: Krishna Housing Scheme,
Sector 14, Sohna,
Gurgaon, Haryana-122103.
Corporate Office:
Office Space 406, 4th Floor, 'Rectangle One' D-4,
District Center, Saket, New Delhi-110017.
Registered Office:
W4D, 204/5, Keshav Kunj,
Western Avenue, Cariappa Marg,
Sainik Farms, New Delhi-110062
.... Defendants
Date of institution : 22.09.2022
Date of final arguments : 20.09.2023
Date of decision : 26.09.2023
JUDGMENT
1.1 The plaintiff has filed the present suit through its authorized signatory Ms. Deepika Mendiratta, against the defendants, for recovery of Rs. 11,62,514/- (Rupees eleven lac sixty two thousand CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 2 of 21 five hundred and fourteen only), alongwith pendente-lite and future interest @ 7.40%, per annum, with monthly rests till realization, and costs of the suit.
2.1 The plaintiff's case is that defendant no. 1 had approached the plaintiff, at its Dwarka Branch, for grant of Housing Loan Facility under SBI Housing Loan Scheme for purchase of developed/constructed residential Flat no. 13005, 13th Floor, Tower C2, Krishna Housing Scheme, Sector 14, Sohna, Gurgaon, Haryana- 122103, which was sold by defendant no. 2, vide Agreement to Sell dated 19.05.2022, under the project, "Krishna Housing", Sector 14, Sohna, Gurgaon. It is stated that though defendant no. 1 has applied for the loan, the further execution of documents was done by Sh. Mithilesh Kumar Singh, father of defendant no. 1, vide Power of Attorney executed on 09.02.2017. The plaintiff sanctioned Rs. 13,71,000/- for purchase of the said flat, which defendant no. 1, as borrower, and defendant no. 2, as builder, agreed to return by EMIs to the plaintiff. The borrower had availed and withdrawn almost the maximum limit of the loan. Defendant no. 1, at the time of grant of loan, was clearly explained that the loan was to be repaid irrespective of completion/construction or abandonment of the residential project, being developed by the builder. Defendant no. 1 executed security documents including SBI Loan Application, KYC documents, Memorandum of Loan Agreement, Sanction Letter, Arrangement Letter, Agreement to Mortgage, Deed or Undertaking for House Loan, Affidavit, Operations Letter, Equitable Mortgage in case of CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 3 of 21 enhancement, Statement of Personal Assets and Liabilities, Memorandum of Deposit, Tripartite Agreement, and other related documents. He agreed to pay interest on the outstanding loan amount @ 8.40%, per annum, with monthly rests, and penal interest over the agreed interest, with monthly rest, on the overdue amount for the overdue period. Defendant no. 1 agreed to repay the loan amount in EMIs of Rs. 11,158/- per month, updated to 300 EMIs of Rs. 12,632/-, per month.
2.2 It is further stated that defendant no. 1, as the borrower, and defendant no. 2, as builder/developer, and the plaintiff jointly executed Tripartite Agreement to further secure the loan. By way of the Tripartite Agreement, it was agreed that the plaintiff shall have first lien over the flat in question for the due repayment of the loan. It was also agreed that in the event of default in the repayment of the loan and/or the borrower committing any other default which makes the borrower liable for repayment of the entire amount outstanding in the loan account, the builder i.e. defendant no. 2 shall be, at the request of the plaintiff, under obligation to not deliver possession to the borrower and/or cancel the booking and pay all the amounts received by the builder on behalf of defendant no. 1 to the plaintiff, including any amount paid by the defendant no. 1 to defendant no. 2. Upon payment of amounts by the developer to the plaintiff as aforesaid, the plaintiff and defendant no. 1 will not have any claim, charge, lien, mortgage, right, title and interest etc., whatsoever, over the said flat. In the event of the builder cancelling the said booking for any default committed CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 4 of 21 by the borrower or the project being shelved by the builder or for any other reason whatsoever, the builder shall pay the entire amount received on behalf of the borrower to the plaintiff. It was further stipulated that the responsibilities of the builder under the Tripartite Agreement will be extinguished only after delivering the duly registered Conveyance Deed/ Sale Deed/ Lease Deed directly to the bank and handing over the possession of the residential unit to the borrower.
2.3 It is further stated that defendant no. 1 duly availed the above mentioned Home Loan facility by opening Home Loan Account no. 37057989367. However, he committed defaults in repayment of loan amount, as a result of which the aforesaid Loan Account became irregular. Defendant no. 1 failed to adhere to the terms of the agreement and to repay the EMIs per month. Thus, the same has been grossly out of order for a considerable period. It was personally as well telephonically repeatedly conveyed to defendant no. 1. However, there was no response from the defendants. Ultimately, the said account was declared as Non-Performing Asset on 15.02.2022. The plaintiff recalled the entire outstanding amount of the Loan Account by serving Legal Notice dated 21.01.2022 upon both the defendants, requiring them to liquidate the outstanding amount. However, the defendants paid no heed to the request of the plaintiff.
2.4 It is further stated that the defendants are jointly and severally liable to pay the entire amount outstanding in the Loan CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 5 of 21 Account, alongwith interest to the plaintiff bank. The project developed by defendant no. 2 was of the choice of defendant no. 1, for which the plaintiff has provided loan. Defendant no. 2 has failed to deliver possession of the flat to defendant no. 1. Defendant no. 2 is liable to pay the entire amount, received by it on behalf of defendant no. 1, to the plaintiff. Otherwise also, defendant no. 2 is liable to repay the plaintiff, as per the terms of Tripartite Agreement dated 29.07.2019, since it has failed to complete the project and deliver the secured asset within the stipulated time thereby violating the terms of the Tripartite Agreement and Agreement to Sell.
2.5 It is also stated that the defendants also failed to give regular updates on construction of flats, as per the terms of Tripartite Agreement. The present status of the flats is that the project has not been completed. At present, the plaintiff's security is at the risk of being extinguished. Hence, defendant nos. 1 and 2 are jointly and severally liable to refund the money. As per the Statement of Account, Rs. 11,15,335/- is outstanding against the defendant, along with Rs. 47,179/-, as accrued interest upto 12.07.2022. Therefore, total amount outstanding against the defendant is Rs. 11,62,514/-. The plaintiff has, thus, prayed for a decree against the defendants for Rs. 11,62,514/- (Rupees eleven lac sixty two thousand five hundred and fourteen only), as on 12.07.2022, alongwith pendente-lite and future interest @ 7.40%, per annum, with monthly rests, till realization, and costs of the suit.
CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 6 of 21 3.1 Summons issued to defendant no. 1 could not be served upon him in the ordinary way. Thus, the same was served upon him by publication in the newspapers, 'The Statesman' dated 14.03.2023 and 'Veer Arjun', dated 15.03.2023. However, neither anybody appeared on behalf of defendant no. 1 nor written statement was filed. Thus, vide order dated 27.04.2023, the right of defendant no. 1 to file written statement was closed and vide order dated 09.08.2023, defendant no. 1 was proceeded against ex-parte.
3.2 Summons of the suit was served upon defendant no. 2 on 07.12.2022. He appeared through his counsel on 20.12.2022 and filed written statement on 22.03.2023.
4.1 In the written statement, filed by defendant no. 2, it is stated that as per the terms of Tripartite Agreement dated 29.07.2017, defendant no. 1 was primarily responsible to pay the installments in a timely manner to the plaintiff. Defendant no. 1 has not only been irregular in payments to the plaintiff but also to defendant no. 2. He has not paid any amount towards the concerned unit since 09.12.2019, which has derailed the timely completion of the concerned unit. The project has suffered substantial delay in completion, owing to the exigencies created on account of COVID-19 pandemic. The plaintiff, defendant no. 1 and defendant no. 2 entered into a Tripartite Agreement dated 29.07.2017, wherein defendant no. 2 had a limited role, being the developer of the said project.
CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 7 of 21 4.2 It is further stated that defendant no. 1 consciously and voluntarily executed security documents i.e. SBI Loan Application, KYC documents, Memorandum of Loan Agreement, Sanction Letter, Arrangement Letter, Agreement to Mortgage in favour of the plaintiff for repayment of the said amount. Defendant no. 1 was under a legal and a contractual obligation to make timely payments of the equated monthly installments of Rs. 11,158/- per month, updated to Rs. 12,632/-, towards repayment of the home loan in accordance with the Loan Agreement. Defendant no. 2 is not a signatory to the Loan Agreement and hence bears no liability.
4.3 Further, in reply to para 14 of the plaint, it is denied that defendant no. 2 is jointly and severally liable to pay the entire amount outstanding, along with interest. It is stated that as per terms of the Tripartite Agreement dated 29.07.2017, defendant no. 1 was primarily responsible to pay the installments in a timely manner to the plaintiff. The defendant has denied that it failed to deliver the possession of the flat in question to defendant no.1. It is also denied that defendant no. 2 is liable to pay the loan amount to the plaintiff. The defendant has, thus, prayed for dismissal of the suit.
5.1 The plaintiff has filed replication to the written statement, filed by defendant no. 2, wherein the contentious averments made in the written statement have been denied and those made in the plaint have been reiterated.
CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 8 of 21 6.1 From the pleadings, the following issues were framed on 17.05.2023 :-
"1. Whether the plaintiff is entitled to recover from the defendants a sum of Rs. 11,62,514/- (Rupees eleven lac sixty two thousand five hundred and fourteen only), as prayed in the plaint? OPP.
2. If answer to issue no. 1 is in affirmative, whether the plaintiff is entitled to interest? If so, at what rate and for which period ? OPP.
3. Relief."
No other issue was pressed by the parties.
7.1 It is pertinent to mention that on 17.05.2023, Sh. Vikas, Assistant Manager was substituted as the Authorized Representative of the plaintiff.
8.1 In order to prove its case, the plaintiff has examined one witness, namely, PW-1 Sh. Vikas, Assistant Manager, Authorized Representative of the plaintiff bank.
9.1 The defendant has examined one witness, namely, Sh. Animesh Kumar Sham, Authorized Representative of defendant no. 2 as DW-1.
10.1 Sh. R.K. Sinha, Ld. Counsel for the plaintiff has generally argued on the lines of the evidence led by PW-1. He has contended that on the application dated 10.02.2017, Ex. PW1/B, of defendant no. 1, the plaintiff has sanctioned loan of Rs. 13,71,000/-. Although defendant no. 1 has applied for the loan, the loan documents were CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 9 of 21 executed by his father Sh. Mithilesh Kumar Singh, pursuant to Power of Attorney, Ex. PW1/D, executed by the said defendant in his favour. He further contended that as per the Terms of Tripartite Agreement, Ex. PW1/L, in the event of default in the repayment of loan, defendant no. 2 was under obligation to not deliver possession of the flat in question to defendant no. 1 and pay all the amounts, received by it from or on behalf of defendant no. 1, to the plaintiff. He further contended that the defendant has defaulted in repayment of the loan amount. As per the Statement of Account, Ex. PW1/S, a sum of Rs. 11,15,335/- is outstanding against the defendants. The interest accrued upto 12.07.2022, is Rs. 47,179/-. Thus, the total amount payable by the defendants is Rs. 11,62,514/-. He has also submitted that defendant no. 1 was proceeded against ex-parte and, thus, the plaintiff's case is deemed to have been admitted by him. He has also argued that during his cross-examination, DW-1 has admitted that defendant no. 1 as well as the plaintiff has made the payment which they were supposed to pay and the remaining amount was to be paid at the time of handing over the possession of the property in question. Thus, it has been proved that the sanctioned loan amount was paid to defendant no. 2. He has, thus, requested that the suit may be decreed in favour of the plaintiff and against the defendants, jointly and severally.
11.1 Sh. Yogender Mishra, Ld. Counsel for defendant no. 2 has filed written submissions. He has argued that in order to recover Rs. 11,62,514/- from defendant no. 2, the plaintiff has to prove that the CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 10 of 21 said amount was paid to defendant no. 2. The Tripartite Agreement nowhere states that defendant no. 2 will repay the loan amount to the plaintiff, which in fact is owed by defendant no. 1 to the plaintiff. As per the Tripartite Agreement, there is a condition precedent that the plaintiff must make a request to defendant no.2 for paying the amount received by defendant no. 2 from or on behalf of defendant no. 1. No such request was ever made by the plaintiff to defendant no. 2. Further clause '15' of the Tripartite Agreement provides that non-completion of the project shall not affect the obligations of defendant no. 1 to repay the loan amount to the plaintiff. Thus, defendant no. 1 is solely responsible for the repayment of the loan amount. He further contended that in para '5' of the plaint, it is stated that the borrower had availed and withdrawn almost short of maximum limit. Thus, it is admitted position of the plaintiff that defendant no. 1 had actually taken the loan. If the plaintiff has to recover any amount from defendant no. 2, it has to show as to how much money was actually received by defendant no. 2. Ld. Counsel has argued that PW-1, in his affidavit, has stated that the loan amount was to be disbursed by the bank in favour of defendant no. 2. However, it has not been shown that it was actually disbursed or how much amount was actually received by defendant no. 2. In the absence of any such pleading or proof, the plaintiff cannot be allowed to unjustly enrich itself. He further argued that the Tripartite Agreement stipulated that in the event of the builder i.e. defendant no. 2 cancelling the booking for any default committed by defendant no. 1 or the project being shelved by defendant no. 2, or for any other reason whatsoever, the builder i.e. CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 11 of 21 defendant no. 2 shall pay the entire amount received on behalf of defendant no. 1 to the plaintiff. However, neither the booking has been cancelled nor the project has been shelved by defendant no. 2. Thus, there is no occasion for payment by defendant no. 2 to the plaintiff. Ld. Counsel for the defendant has relied upon, Bachhaj Nahar vs Nilima Mandal and Anr., (2008) 17 Supreme Court Cases 491 and Biraji @ Brijraji & Anr. vs Surya Pratap & Ors., Civil Appeal nos. 4883-4884 of 2017, to argue that in the absence of pleading, evidence is of no help to the party. He has, thus, prayed that the suit against defendant no. 2 may be dismissed.
12.1 I have heard Sh. R.K. Sinha, Ld. Counsel for the plaintiff and Sh. Yogender Mishra, Ld. Counsel for defendant no. 2, and also perused the record.
13.1 It is well settled that a civil case is to be decided on the basis of preponderance of probabilities. It is pertinent to mention that as per section 3 of The Indian Evidence Act, 1872, a fact is said to be 'proved' when, after considering "the matters before it", the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be 'disproved' when after considering the "matters before it", the court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be 'not CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 12 of 21 proved' when it is neither proved nor disproved. It is well settled that the expression, "the matters before it" is wide enough to cover even matters which are other than "evidence". It includes statements of the witnesses, admissions, oral or written, documents proved in evidence, demeanour of witnesses, local inspections and presumption etc. Further, while appreciating the evidence, a court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Courts of Justice are to use their own common sense and experience in judging the effect of particular facts, and they are to be subject to no particular rule whatever on the subject. In this regard, a reference can be made to Ved Parkash Kharbanda Vs. Vimal Bindal, (2013) 198 DLT 55.
14.1 The issue wise findings are as under:-
ISSUE No.1 "Whether the plaintiff is entitled to recover from the defendants a sum of Rs. 11,62,514/- (Rupees eleven lac sixty two thousand five hundred and fourteen only), as prayed in the plaint? OPP."
PW1 Sh. Vikas has tendered his affidavit, Ex. PW1/A. In his affidavit, Ex. PW1/A, he has generally reiterated the facts stated in the plaint. He has also deposed about Copy of Gazette Notification dated 02.05.1987, Ex. PW1/A, Application for Housing Loan, Ex. PW1/B (Colly), Documents qua Housing Loan, Ex. PW1/C (Colly), CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 13 of 21 General Power of Attorney dated 09.02.2017, Ex. PW1/D, Memorandum of Loan Agreement dated 04.08.2017, Ex. PW1/E, Sanction Letter, Ex.PW1/F, Arrangement Letter dated 04.08.2017, Ex. PW1/G, Agreement to Mortgage dated 04.08.2017, Ex. PW1/H, Agreement to Sell dated 19.05.2017, Ex. PW1/I, Deed of Undertaking dated 04.08.2017, Ex. PW1/J, Affidavit dated 04.08.2017, Ex. PW1/K, Tripartite Agreement, Ex. PW1/L, Operations Letter dated 04.08.2017, Ex. PW1/M, Statement of Personal Assets and Liabilities dated 04.08.2017, Ex. PW1/N, Annexure-I, Ex.PW1/O, Memorandum of Deposit, Ex. PW1/P, other Documents, Ex. PW1/Q (Colly), Legal Notice dated 21.01.2022 and Postal Receipts, Ex.PW1/R (Colly), Statement of Account, Ex.PW1/S, Certificate u/s 2A of Bankers' Book Evidence Act 1891, r/w Section 65 B of the Indian Evidence Act, 1872, Ex. PW1/T, and Certificate of Accrued Interest, Ex. PW1/U. 14.2 PW-1, during his cross examination, stated that he had joined RACPC, Janakpuri Branch in the year 2022. At the time of sanction of loan, he was not working in the above branch. To the question as to whether the flat, for which the loan was taken, is mortgaged with the plaintiff, he stated that it was an under-
construction project which has not been completed. He stated that for the first time defendant no. 1 defaulted in payment of EMI due for September, 2020. It can be seen that the testimony of PW-1 Sh. Vikas has gone, by and large, unimpeached, as nothing in favour of the defendants could be elicited during his cross examination.
CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 14 of 21 14.3 DW-1 Sh. Animesh Kumar Sham, Authorized Representative of defendant no. 2 i.e. M/s Raheja Developers Limited has tendered his affidavit, Ex. DW1/A, wherein he has reiterated the facts stated in the written statement and also deposed about Board Resolution dated 13.03.2023, Mark-DW1/1.
14.4 During his cross examination, DW-1 Sh. Animesh Kumar Sham has stated that he is working as Manager, Legal with defendant no. 2. He admitted that he is not a signatory to the Tripartite Agreement, Ex. PW1/L. To the question as to whether defendant no. 2 has constructed the suit property or not, he stated that the same is incomplete. He could not tell whether the tower, in which the suit property was proposed to be constructed, has been constructed or not. He admitted that he had never visited the site where the property in question was to be constructed. He stated that he does not know since when the project is stalled. The project was stalled because many customers had not made the complete payment. He could not tell as to how much payment has been received from defendant no. 1. He admitted that in this case, defendant no. 1 as well as the plaintiff has made the payment, which they were supposed to pay and the remaining amount was to be paid at the time of handing over of the possession of the property in question. He stated that defendant no. 1 has not made complete payment as per Annexure-A to Agreement to Sell dated 19.05.2017, Ex. PW1/I. They have not received Legal Notice dated 21.01.2022, Ex. PW1/R. They have not given any notice regarding default made by defendant no. 1 in payment to defendant CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 15 of 21 no. 2. Since, they had no relation with the bank w.r.t. the project in question, they had not written to the plaintiff bank as to why the project could not be completed.
14.5 From the evidence led of PW-1, it is clear that on the application for Housing Loan dated 10.02.2017, Ex. PW1/B, the plaintiff has granted Housing Loan of Rs. 13,71,000/- to defendant no. 1, vide Memorandum of Loan Agreement dated 04.08.2017, Ex. PW/E and Sanction Letter, Ex. PW/F. The amount was disbursed. The plaintiff, defendant no. 1 and defendant no. 2 have also entered into a Tripartite Agreement dated 29.07.2019, Ex. PW1/L. As per clause '2' of the said agreement, in the event of default in repayment of loan and/or defendant no. 1 committing any other default which makes him liable for repayment of the entire amount outstanding in the loan account, defendant no. 2, at the request of the plaintiff, was under
obligation not to deliver possession to defendant no. 1 and pay all the amount received by defendant no. 2 on behalf of defendant no. 1, including any amount paid by defendant no. 1 to the plaintiff. The Statement of Account, Ex. PW1/S, reveal the defaults committed by defendant no. 1 in repayment of the loan amount. The last payment of Rs. 11,000/- was made on 29.01.2022. It also shows that as no 25.03.2022, a sum of Rs. 11,15,335 was outstanding in the loan account.
14.6 The main contention of Ld. Counsel for defendant no. 2 is that there is no evidence of the payment made to defendant no. 2 by CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 16 of 21 defendant no. 1 or by the plaintiff. However, the defence of non-
receipt of the loan amount on behalf of or from defendant no. 1 has not been taken by defendant no. 2 in his written statement. Further, in this regard, PW-1 has testified that the loan was to be disbursed by the bank in favour of defendant no. 2. As per the Tripartite Agreement, Ex.PW1/L, defendant no. 2 has agreed that the loan amount be credited to his loan account from where he has availed the financial facility for the project. Clause '2' of the said Agreement stipulates, "......in the event of default in the repayment of loan and or the Borrower committing any other default which makes the Borrower(s) liable for the repayment of the entire amount outstanding in the said loan as per the terms of the Loan Agreement executed between the borrower(s) and the SBI, the Builder shall, at the request of SBI, be under obligation to not deliver possession to the Borrower and/or cancel the booking and pay all the amounts received by the Builder on behalf of the Borrower(s) to SBI including also any amount paid by the Borrower to the Builder. However, the Builder/developer shall be entitled to recover cancellation and/or any other charges, if any payable by the Borrower under the terms of application for for purchase of the said flat and/or agreement to sale/construction out of the Borrower(s) contribution."
14.7 Further, clause '4' of the Tripartite Agreement, Ex. PW1/L, stipulated that in the event of the builder cancelling the said booking for any default committed by the borrower or if the project is shelved by the builder or for any other reason whatsoever, the builder CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 17 of 21 shall pay the entire amount received on behalf of the borrower to the SBI. Further, clause '20' of the Agreement provided that the responsibilities of the builder i.e. defendant no. 2 under the Tripartite Agreement will be extinguished only after delivering the duly registered Conveyance Deed/Sale Deed/Lease Deed directly to the Bank and handing over the possession of the residential unit to the borrower and, thereafter, the validity of the Tripartite Agreement will come to an end.
14.8 It can also be seen that vide its letter dated 01.08.2017, Ex. PW1/Q, written by defendant no. 2 to the plaintiff, defendant no. 2 has informed that cheque, demand draft, online remittance in Raheja's Krishna Housing Scheme should be done in its account no. 000380200010108 at YES Bank Limited, Chanakya Puri, New Delhi. During his cross examination, DW-1 has admitted that in this case, defendant no. 1 as well as the plaintiff have made the payment, which they were supposed to pay and the remaining payment was to be paid at the time of handing over of the possession of the property in question. Thus, it has been admitted that except for the payment which was to be made at the time of handing over of the property in question to defendant no. 1, the plaintiff and defendant no. 1 have made the payment to defendant no. 2, as per the Agreement to Sell, Ex. PW1/T. Therefore, the argument that defendant no. 2 has not received the payment does not hold any water. It is also pertinent to note that in paras '17' and '19' of the plaint, the plaintiff has stated about serving legal notice dated 21.01.2022 upon the defendants. In written CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 18 of 21 statement, defendant no. 2, in reply to the said paras, had not disputed the receipt of the legal notice, but stated that the said legal notice did not highlight or make any allegation pertaining to any deficiencies on part of defendant no. 2. As earlier stated, in its written statement, defendant no. 2 has not stated about not receiving the amount from or on behalf of defendant no. 1.
14.9 Further, Ld. Counsel for defendant no. 2 has contended that the plaintiff has never made any request to defendant no. 2 not to deliver possession to defendant no. 1 or to pay all the amounts received by it on behalf of defendant no. 1 from the plaintiff or from defendant no. 1. It can be seen that DW-1, in his cross-examination, has admitted that the construction of the property in question has not been completed. He also stated that he does not know since when the project is stalled. He stated that the project is stalled because many customers had not made the complete payment. As contended by Ld. Counsel for the plainitff, since the project has not been completed by defendant no. 2 and the flat in question has not been constructed, the stage for delivery of possession of the flat to defendant no. 1 has not reached. Further, admittedly, vide Legal Notice dated 21.01.2022, Ex. PW1/R, the plaintiff has asked the defendants to pay the entire amount outstanding in the loan account, amounting to Rs. 31,32,875/-, as on 19.01.2022, alongwith interest and expenses. Thus, the contention of Ld. Counsel for defendant no. 2, in this regard, is not tenable.
CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 19 of 21 14.10 In view of the aforesaid, it is considered that the plaintiff has been able to prove that the defendants, are jointly and severally, liable to pay Rs.11,62,514/- (Rupees eleven lac sixty two thousand five hundred and fourteen only) to the plaintiff. Thus, it is held that the plaintiff is entitled to recover Rs. 11,62,514/- (Rupees eleven lac sixty two thousand five hundred and fourteen only), from the defendants, jointly and severally. Issue no.1 is decided accordingly, in favour of the plaintiff and against the defendants.
15.1 Issue No.2.
"If answer to issue no. 1 is in affirmative, whether the plaintiff is entitled to interest? If so, at what rate and for which period ? OPP.
The plaintiff has also claimed pendente-lite and future interest @ 7.40%, per annum, on the outstanding amount. In the facts and circumstances of the case, it is considered that pendente-lite and future interest @ 7.00%, per annum, would be just and reasonable. Thus, it is held that the plaintiff is entitled to pendente-lite and future interest @ 7.00%, per annum, on the outstanding amount of Rs.11,62,514/- (Rupees eleven lac sixty two thousand five hundred and fourteen only), till the realization of the entire amount. Issue no. 2 is decided accordingly.
16.1 Relief.
CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 20 of 21 In view of the aforesaid, the suit is decreed, in favour of the plaintiff and against the defendants, jointly and severally, for a sum of Rs.11,62,514/- (Rupees eleven lac sixty two thousand five hundred and fourteen only), along with pendente-lite and future interest @ 7.00%, per annum, till the realization of the entire amount.
17.1 The plaintiff is also awarded costs of the suit.
18.1 Decree be drawn accordingly.
19.1 A copy of this judgment be issued to all the parties to the dispute through electronic mail, if the particulars of the same have been furnished, or otherwise, in terms of Order XX Rule 1 of the Code of Civil Procedure, 1908 (as amended by the Commercial Courts Act, 2015).
20.1 File be consigned to Record Room.
Announced in open Court on 26.09.2023.
(Rakesh Syal) District Judge (Commercial Court)-03, South-West, Dwarka Courts, New Delhi 26.09.2023 CS(Comm)452/2022 State Bank of India vs Sh.Vikram Singh & Anr. Page no. 21 of 21