Delhi District Court
Housing Development Finance vs Sh. Pushkar Singh on 14 January, 2019
IN THE COURT OF GAURAV RAO, ADJ02 & Waqf Tribunal /
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI.
CS No. 58265/2016 (Old no. 346/2016)
CNR No. DLND010059172016
Housing Development Finance
Corporation Limited
(Through its Authorized Representative)
Olof Palme Marg, Munirka,
Outer Ring Road,
New Delhi 110067 ........Plaintiff
Vs.
Sh. Pushkar Singh
R/o Flat No. 1814, 18th Floor,
AVJ Heights Tower H
Gh 12/2 Sector Zeta 01,
Greater NOIDA 201308
Also at
H. No. 1625, Sector, III,
Pushp Vihar, New Delhi
Also at:
Max Healthcare Institute Ltd.
Press Enclave Road Saket,
New Delhi
Also at:
Village Kakra
PO. Saliya Distt, Pithorgard,
Uttaranchal ..........Defendant
CS No. 58265/16 HDFC Vs. Pushkar Singh 1/ 24
Date of institution : 08.07.2016
Date on which reserved for judgment : 14.01.2019
Date of decision : 14.01.2019
Decision : Application seeking leave to
defend dismissed and suit
decreed
JUDGMENT
1. Vide this order/judgment I shall dispose of the application, moved by the defendant, seeking leave to defend the present suit filed under Order XXXVII CPC by the plaintiff.
Plaint
2. It is the case of the plaintiff that it is a company incorporated under the provisions of Indian Companies Act, 1956 and Mr. Diganta Baurah, its Assistant General Manager, Credit Risk Management has been authorized to institute the present suit, vide authority letter dated 14.03.2016.
2.1 It is further its case that it is engaged interalia in the financial activities namely providing house loans, loans against the property etc. 2.2 It is further its case that defendant had approached it for loan of Rs. 22,00,000/ towards Home Loan for a Builder Flat and it agreed to CS No. 58265/16 HDFC Vs. Pushkar Singh 2/ 24 provide the said loan to the defendant subject to the terms and conditions, vide sanction/loan approval letter dated 05.02.2013 and he was alloted a Housing Loan Account bearing no. 607468060.
2.3 It is further its case that the defendant was alloted apartment no. G1814, AVJ Heights, Plot no. GH12/2, Sector Zeta 1, Greater Noida (hereinafter referred to as the suit property) vide allotment letter dated 12.02.2013 and an agreement to sell/flat buyer agreement was also executed between the defendant & the builder on the same day.
2.4 It is further its case that it received 'Permission to Mortgage' letter from the said builder on 15.02.2013, confirming that the said property has been sold to the defendant after obtaining all necessary permissions/approvals/sanctions from the concerned departments and thereafter, a tripartite agreement dated 15.02.2013 was executed between it, the defendant/borrower and the builder.
2.5 It is further its case that at defendant's request it duly disbursed an amount Rs. 20,00,000/ vide cheque bearing no. 334608 dated 21.02.2013 at Cannaught Place, New Delhi drawn on HDFC Bank, Suryakiran Building, New Delhi in favour of the builder, A/c. 01932320003072, HDFC Bank Ltd. New Delhi.
CS No. 58265/16 HDFC Vs. Pushkar Singh 3/ 24 2.6 It is further its case that in consideration of the disbursed loan,
defendant furnished a promissory note dated 25.02.2013 for repayment of the loan amount of Rs. 21,32,382/ and accordingly a loan agreement of same amount was executed between the plaintiff and the defendant on 25.02.2013 at Cannaught Place, New Delhi.
2.7 It is further its case that as per the terms of the loan agreement, the defendant agreed to repay the same by way of equated monthly installment (EMIs) spread over 240 months and he also agreed to pay interest at the rate of 10.25% p.a. on a variable rate basis. It is its case that apart from said rate of interest, additional interest of 18% per annum or at such higher rate as per the rules of HDFC in that behalf as in force from time to time, as per clause 2.7 (b) of the Loan agreement was also payable by the defendant, in case of default or delay in making the repayment of the above said EMI/PEMI. It is further its case that it was further agreed that as per clause 7.1 of loan agreement the defendant was also to pay the incidental charges in recovering the EMI.
2.8 It is further its case that the defendant paid the last EMI on 22.08.2015 and thereafter no payment has been made.
2.9 It is further its case that in spite of several reminders the defendant has adopted dillydallying tactics and has avoided to make CS No. 58265/16 HDFC Vs. Pushkar Singh 4/ 24 payment or clear the arrears.
2.10 It is further its case that it sent a legal notice dated 20.04.2016 to the defendant but to no avail though in the said legal notice it was informed to the defendant that in case he fails to pay the outstanding amount the loan agreement would be recalled.
2.11 It is further its case that on 30.04.2016, as per the books of accounts maintained by it in the regular course of its business, the total outstanding payable and due by the defendant as regards the above mentioned loan is 21,41,402/.
2.12 Hence the present suit.
3. Summons under Order XXXVII CPC, in the prescribed format, were issued against the defendant and after the appearance was filed, summons for judgment were issued against him and he preferred the present application seeking leave to defend the present suit.
Leave to Defend application of defendant
4. It is pleaded that the suit is nothing but a sheer misuse of the process of law and is without any cause of action, hence the same is liable to CS No. 58265/16 HDFC Vs. Pushkar Singh 5/ 24 be dismissed. It is pleaded that the plaintiff has not approached the court with clean hands.
4.1 It is pleaded that this court has no jurisdiction to entertain and decide the present suit in view of provisions of Recovery of Debts Due to Banks and Financial Institutions Act 1993.
4.2 It is pleaded that the suit is not maintainable for non joinder of necessary parties and is liable to be dismissed accordingly. It is pleaded that the plaintiff has malafidely filed the present suit only against the defendant just to save its erring officials and the builder who have manipulated & cheated the defendant. It is further pleaded that the official of the plaintiff bank and the builders in connivance with each other, to cheat the innocent people induced the defendant and other innocent people to book flats in the builder's project as well as to take the housing loan despite knowing that the title of the builder is defective and there is a dispute with G. NOIDA authority in respect of lease of the plot etc. 4.3 It is further pleaded that it was well within the knowledge of the plaintiff that the builder would default in the project, will not deliver the actual physical possession of the suit property, against which the loan was taken and just for funding the builder the plaintiff sanctioned the said loan.
CS No. 58265/16 HDFC Vs. Pushkar Singh 6/ 24 4.4 It is further pleaded that the intention of the plaintiff bank is very
much clear from the fact that they have not made the builder, a necessary party, a party to the present suit despite the tripartite agreement in which it has been clearly mentioned that the suit property will be the property of the bank and in case of any kind of default the builder will inform the plaintiff bank as well as the plaintiff bank would itself physically inspect or take the possession of the mortgaged/suit property under loan, in case of any kind of default from the borrower/defendant.
4.5 It is pleaded that it has been further agreed in the said tripartite agreement that the builder will return the amount directly to the plaintiff bank, in case of any kind of default or any reason and hence the Builder is very much necessary party to settle the present dispute but the plaintiff with malafide reason has not made the builder a party in the present suit.
4.6 It is further pleaded that the present suit has been filed on the basis of false and frivolous statement of account by levying exorbitant rate of interest against the guidelines of RBI.
4.7 It is further pleaded that the present suit has not been filed by a competent person and hence the same is liable to be rejected on this ground alone.
CS No. 58265/16 HDFC Vs. Pushkar Singh 7/ 24 4.8 It is further pleaded that he could not pay the EMI due to some
financial crises as well as due to the fact that the builder defaulted by not handing over the physical possession of the suit property nor executed the title deed in his favour and rather run away by closing its office.
4.9 It is further pleaded that his loan account has yet not been declared as NPA by the bank and in the absence of the said declaration, the bank can't recall his loan or compel him to pay the whole loan amount except the outstanding EMI's which has not been accrued yet against him, further the plaintiff never sent any intimation regarding recalling of loan.
4.10 It is further pleaded that the plaintiff has not yet disclosed that how many EMI was not paid by him and moreover the plaintiff can not claim more than due EMI but the plaintiff filed the suit for the whole amount of loan with exorbitant interest and he is not liable to pay as the same is future liability.
4.11 It is further pleaded that the plaintiff has not clarified as to how much amount had been paid by him and has merely stated that he had paid the EMIs till 22.08.2015 since 25.03.2013 whereas in fact he had paid more than 30 EMIs of Rs. 19500/ each, totaling to Rs. 6,00,000/ approximately, to the plaintiff bank and if presumed that the loan amount was Rs. 20,00,000/ than how the plaintiff is claiming Rs. 21,41,402/ despite having CS No. 58265/16 HDFC Vs. Pushkar Singh 8/ 24 received around Rs. 6,00,000/ from him.
4.12 It is further pleaded that the plaintiff on one hand is claiming that the plaintiff bank had disbursed a sum of Rs. 20,00,000/ to the builder and on the other hand the plaintiff bank by its own document i.e. promissory note dated 05.02.2013 is claiming that he had undertook to pay a sum of Rs. 21,32,382/ along with interest. It is pleaded that the documents of the plaintiff are self contradictory and manipulated and therefore a proper trial is required to grant a fair and genuine opportunity to him to defend the case.
4.13 It is further pleaded that apart from him the said builder had cheated many other individuals by not handing over the possession of the flats and in this regard an FIR has been lodged against the builder vide FIR No. 631/2016 dated 15.09.2016 PS Suraj Pur, Distt. Gautam Budh Nagar U.P. 4.14 It is pleaded that he as well as the other borrowers informed the plaintiff bank, time to time, about the defaults of the builder but the plaintiff failed to take any action either against the builder or its own officials.
4.15 It is pleaded that this court has no territorial jurisdiction to entertain the present dispute as no cause of action arose within the jurisdiction of this court, the suit property is not situated within the CS No. 58265/16 HDFC Vs. Pushkar Singh 9/ 24 jurisdiction of this court and all the acts & deeds happened at the office of the builder at Greater Noida.
4.16 It is thus prayed that as the leave to defend application discloses various triable issues, leave to defend be granted him.
Reply to leave to defend application
5. In reply to the leave to defend application, while reiterating the contents of the plaint, plaintiff pleaded that defendant has failed to bring forth any triable issues and accordingly the leave to defend application is liable to be dismissed.
5.1 It is pleaded that the defendant has only leveled false, concocted and malicious allegations against it. It is pleaded that it is not denied by the defendant that he had applied and taken the loan amount of Rs. 21,32,382/ on specified terms and conditions. It is pleaded that it is also not denied that the loan agreement was executed between him & the plaintiff and that in lieu of repayment of loan he had also furnished a promissory note in the favour of the plaintiff.
5.2 It is further pleaded that the defendant had himself approached the plaintiff for taking loan to buy a flat/suit property from the said developer CS No. 58265/16 HDFC Vs. Pushkar Singh 10/ 24 and in this respect he had furnished two payment receipts and the allotment letter to it, in pursuance of which the sanction loan was granted, therefore he is solely liable to pay the loan amount. It is denied that its officials or that of the builder connived or colluded with each other to cheat and commit fraud upon the defendant.
5.3 It is further pleaded that if the plaintiff had knowledge about the default of builder then it would not have provided the loan to the defendant on allotment letter given by the defendant at the time of sanctioning of the loan.
5.4 It is further pleaded that in tripartite agreement it is nowhere mentioned that in case of default the builder will inform the plaintiff or that the plaintiff itself would physically inspect or take possession of the mortgaged/suit property and it is pleaded that it is mentioned in the said agreement that in case the allotment is cancelled, any amount paid to the borrower on account of such cancellation shall be paid to the plaintiff but the plaintiff has not received any information regarding cancellation of allotment.
5.5 It is further pleaded that at the time of sanction of laon, the defendant signed the terms of the loan agreement as per which he agreed to repay the loan along with interest @ 10.25% per annum on variable basis by CS No. 58265/16 HDFC Vs. Pushkar Singh 11/ 24 way of 240 equated monthly installments and apart from the said rate of interest, additional interest of 18% per annum or at such higher rate as per the rules of HDFC in that behalf as in force from time to time, as per clause 2.7(b) of the loan agreement was also payable by him to plaintiff, in case of default or delay in making the repayment of the EMI/PEMI.
5.6 It is pleaded that the suit has been filed by a duly authorized, competent person.
5.7 It is further pleaded that at the time of sanction of loan the defendant signed the loan agreement and promissory note of Rs. 21,32,382/ in which he had promised to pay the loan amount with interest but he failed to comply with the conditions of promissory note. It is pleaded that on the request of the plaintiff cheque amount of Rs. 20 lac was disbursed to the builder. It is further pleaded that the account statement of the defendant annexed with the suit clearly shows his outstanding dues and the interest is charged by the plaintiff as per the loan agreement signed by the defendant.
6. Heard the parties and perused the records.
6.1 The present suit has been filed by the plaintiff for recovery of outstanding loan amount. As per the plaintiff's case the loan was granted to the defendant vide sanction letter/loan approval dated 05.02.2013 and he was CS No. 58265/16 HDFC Vs. Pushkar Singh 12/ 24 alloted a housing loan account bearing no. 607468060. It is further the plaintiff's case that an amount of Rs. 20,00,000/ was disbursed to the builder i.e. M/s AVJ Developers (India) Pvt. Ltd. in its account no. 01932320003072. None of these facts have been even remotely disputed by the defendant. A careful reading of the leave to defend application would reveal that the defendant unambiguously admits availing the loan facility from the plaintiff. He admits execution of loan agreement, promissory note and the tripartite agreement dated 25.02.2013 and 15.02.2013 respectively as well as disbursal of the loan amount to M/s AVJ Developers (India) Pvt. Ltd.
6.2 It is not even once denied in the leave to defend application that the loan facility was not so availed by him. It is also not claimed that the loan documents are forged or fabricated or that the terms and conditions were not agreed to by him. It is also not denied that the loan was to be repaid in 240 equated monthly installments. In fact it would be safe to conclude that the defendant admits the plaintiff's case regarding advancement and non repayment of the loan amount.
6.3 Though the defendant claimed that the statement of account is false, frivolous and fabricated however it has not been explained as to how statement of account filed by the plaintiff is false, frivolous or fabricated. The statement of account clearly reflects the payment made by the defendant as well as the amount due. Defendant cannot vaguely claim that the CS No. 58265/16 HDFC Vs. Pushkar Singh 13/ 24 statement of account is false or fabricated. If indeed the same is false and fabricated, it was for the defendant to explain how the same is false or fabricated. Furthermore he has not filed his own statement of account to contradict the plaintiff's claim regarding the payment made and the amount due and hence for this reason alone I find no merits in the contentions of the defendant. Moreover it is evident from the home loan agreement that a loan of Rs. 21,32,382/ was granted to the plaintiff who had agreed to repay the same as per the terms & conditions of the said loan agreement and had also executed a promissory note of the said amount in favour of the plaintiff in this regard. It was only on defendant's request that the amount of Rs. 20 lac was disbursed to M/s AVJ Developers India Pvt. Ltd. i.e. the builder. As per the loan agreement defendant had agreed to pay the interest as well as the variable interest and all incidental charges in case of default of repayment of the loan.
6.4 It is also pleaded that the builder M/s AVJ Developers (India) Pvt. Ltd., who is a necessary and proper party has not been impleaded as a party in the present suit and that there was a collusion between the plaintiff's officials and the builder who connived with each other to cheat, dupe the defendant. It is pleaded that the plaintiff and the builder induced the defendant to book the suit property as well as to take housing loan from the plaintiff despite fully knowing about the defect in the builder's title as well as the dispute with the Greater Noida authority in respect of the lease of the plot CS No. 58265/16 HDFC Vs. Pushkar Singh 14/ 24 wherein the project/suit property was to be constructed. It is pleaded that despite being aware that the builder would default in completing the project, delivery of the suit property, the plaintiff just for funding the builder's project sanctioned the loan. However the defence set up by the defendant does not inspire confidence nor does it even remotely entitles him to defend the present case.
6.5 M/s AVJ Developers (India) Pvt. Ltd. is neither a necessary nor a proper party to the present suit. M/s AVJ Developers (India) Pvt. Ltd. is not a coapplicant, coborrower or a guarantor of/to the loan facility, loan agreement entered by the defendant with the plaintiff. M/s AVJ Developers (India) Pvt. Ltd. has no liability whatsoever qua the loan agreement. As per the loan agreement and the promissory note it is the sole liability of the defendant/the borrower to repay the loan as per the terms and conditions of the said agreement. Merely because one tripartite agreement dated 15.02.2013 was entered between the plaintiff, defendant and M/s AVJ Developers (India) Pvt. Ltd. that by itself would not make M/s AVJ Developers (India) Pvt. Ltd. liable in any manner towards the loan availed by the defendant. The liability is exclusively of the defendant. Undoubtedly the tripartite agreement as per clause 8 casted obligation upon the builder to refund the entire amount advanced by the plaintiff, in certain eventualities including cancellation of allotment, however that is independent of defendant's liability under the loan agreement. There is nothing in the CS No. 58265/16 HDFC Vs. Pushkar Singh 15/ 24 tripartite agreement to suggest that it was for the builder to repay the loan in case of failure on the part of the defendant to do so.
6.6 Defendant had approached the builder independently, for purchase of the suit property and the plaintiff was nowhere in the picture at that time. Same is evident from the flat buyer agreement dated 12.02.2013 execution of which has not been denied by the defendant. It was only after entering into the flat buyer agreement with the builder that the defendant had availed the loan facility from the plaintiff and executed the loan agreement and promissory note on 25.02.2013. Undoubtedly after the execution of the flat buyer agreement and before the sanction of the loan the plaintiff, the defendant and the builder had entered into a tripartite agreement however the said tripartite agreement, as discussed above, does not cast any obligation upon the builder to repay the loan amount in case of any default by the defendant.
6.7 As far as the allegations of collusion are concerned, same are merely afterthoughts to avoid the liability in terms of the loan agreement. No collusion whatsoever can be even remotely inferred from the material available on record. It is a simple case of loan being availed and the default thereupon in repayment of the loan amount. At this stage I would like to highlight the observations made by the Hon'ble High Court of Delhi in Housing Development Finance Corporation Ltd. Vs. Sandeep Kumar and CS No. 58265/16 HDFC Vs. Pushkar Singh 16/ 24 anr. CS (OS) No. 2502/2012 decided on 11.03.2015 and Housing Development Finance Corporation Ltd. Vs. Umesh Kumar Rai and anr CS (OS) No. 2894/2012 decided on 02.09.2014. In Umesh Kumar Rai (supra) it was held as under:
"1. This is an application filed by the defendant no. 1 seeking unconditional leave to defend...........
13. It is submitted that there is collusion between the plaintiff bank and the builder and further the flat in question was mortgaged by the builder in favour of the bank and the bank has chosen to give up a valuable security in their favour. It is further submitted that since the defendant no.1 has not derived benefit of the flat in question he is not liable to pay the further EMIs.
14. I have heard counsel for the parties and also perused the plaint and supporting documents, which have been placed on record. There is no explanation rendered by the plaintiff with regard to the breakup of the amounts due from the defendant as shown in paragraph 20 of the plaint, however, reliance is placed on the statement of account which is duly certified under the Bankers' book of Evidence, which reflects that six installments stands paid by the defendant no.1 to the plaintiff. The tripartite agreement between the parties has also been perused by this court. It would be useful to reproduce certain clauses of the agreement:
"WHEREAS the Borrower has represented that the Builder is of his choice and that he has satisfied himself with regard to integrity, capability for quality construction of the Builder and the Builder's ability for timely completion and on time delivery of the project;
AND WHEREAS the Builder and the Borrower have entered into an agreement dated 24.3.2011 for the purpose of unit no.3072 in the said project of the Builder;
AND WHEREAS the Borrower and the Builder have jointly approached HDFC for a Loan of Rs.26,00,000/ (Twenty six lacs only) towards payment of the sale / purchase consideration of the residential apartment in the Project; AND WHEREAS HDFC has considered the said request with a clear understanding and an irrevocable undertaking by the Borrower that subsequent to the disbursement, if any, as requested by the Borrower, there would be no repayment default for any reason whatsoever including but not limited to any concern/ issues by and between the Borrower and the Builder / Developer;
AND WHEREAS the Borrower has represented, and such representation being a continuing representation, that Borrower's obligation to repay the Loan shall be a distinct and independent obligation more particularly independent of any CS No. 58265/16 HDFC Vs. Pushkar Singh 17/ 24 issues/ concern / dispute of whatsoever nature between the Borrower and Builder;"
15. A careful reading of the above clauses would show that it is the borrower, who has chosen the builder and also satisfied himself with regard to his ability for timely completion and delivery of project. Thus the argument of the defendant of collusion between the plaintiff and defendant no.2 is baseless and without any force. The agreement would also show that defendant no.1 was the principal borrower and further after the amount had been disbursed the borrower would be responsible for the repayment, even if there were concerns or issues between the borrower and the builder/developer.
16. While argument of counsel for the applicant/defendant no.1 may seem to be attractive that he has been duped by the builder and the bank, as they were in collusion, since the bank has disbursed the entire amount of loan to the builder. Based on the documents, this argument is unacceptable; firstly, for the reason that the liability to clear the outstanding amount was of the principal borrower and secondly any issue between the borrower and the builder would not come in the way of the plaintiff bank, to seek recovery. There is not a single document placed on record or any averment made in the application for leave to defend, as to what action has been taken by the borrower to protect his rights with respect to booking of a flat with the builder.
17. The Apex Court in the case of M/s.Mechalee Engineers & Manufacturers Vs. M/s.Basic Equipment Corporation reported at AIR 1977 SC 577 has drawn up the parameters to be considered by the court while dealing with the application for leave to defend. Relevant paras of the judgment reads as under:
"8. In Smt. Kiranmoyee Dassi and Anr. v. Dr. J. Chatterjee 49 C.W.N. 246 , Das. J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by order 37 C.P.C. in the form of the following propositions (at p. 253):
(a) If the Defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the Defendant is entitled to unconditional leave to defend.
(b) If the Defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the Defendant is entitled to unconditional leave to defend.
(c) If the Defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet, shews such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the Plaintiff is not entitled to judgment and the Defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.
(d) If the Defendant has no defence or the defence set up is illusory or sham or CS No. 58265/16 HDFC Vs. Pushkar Singh 18/ 24 practically moonshine then ordinarily the Plaintiff is entitled to leave to sign judgment and the Defendant is not entitled to leave to defend.
(e) If the Defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the Plaintiff is entitled to leave to sign judgment, the Court may protect the Plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the Defendant on such condition, and thereby show mercy to the Defendant by enabling him to try to prove a defence."
18. I am of the view that no reasonable, plausible defence has been raised by the defendant no.1. The defence which has been raised by defendant no.1 would fall under illustration (d), as provided in the case of M/s. Mechalee Engineers & Manufacturers (supra).
The application is accordingly dismissed. The plaintiff would be entitled to decree with pendente lite and future interest @ 8% P.A."
6.8 Hence in the above matter despite the borrower and the builder jointly having approached the bank for the loan facility and despite similar allegations of collusion between the bank and the builder as in the present case, the leave to defend application was dismissed. In the case at hand it was the borrower only i.e. the defendant who had approached the bank for loan facility and not the builder. The builder not being a party to the loan agreement dated 25.02.2013, nor having executed the promissory note of even date, cannot be fastened with any liability towards the loan account/agreement and therefore is neither a necessary nor a proper party. Even if there is a default by the builder in completing the project, handing over the possession of the suit property to the defendant and even if the allegations of the defendant are accepted to be true that the builder had cheated him still the defendant cannot avoid his liability towards the loan. No liability can be fastened upon the plaintiff nor the plaintiff can be made to suffer for the faults, negligence or misdeeds of the builder more so when CS No. 58265/16 HDFC Vs. Pushkar Singh 19/ 24 there is absolutely no material on record, no basis or reasons to presume that there was collusion between the builder and the plaintiff. The defendant's allegations that the plaintiff was aware about the defect in the title of the builder or its dispute with the Greater Noida authority regarding the lease of the plot where the project was being constructed are absolutely hollow and baseless. In fact it is a moonshine, sham defence which the defendant is trying to set up merely to somehow avoid the liability. Fact remains that as per the loan agreement as also the tripartite agreement it was the sole liability, responsibility of the defendant to repay the loan.
6.9 Various clauses of tripartite agreement cast unambiguous obligations upon defendant to repay the loan amount as per the loan agreement. The same are reproduced hereunder: AND WHEREAS the Borrower has represented, and such representation being a continuing representation, that Borrower's obligation to repay the Loan shall be a distinct and independent obligation more particularly independent of any issues/concern/dispute of whatsoever nature between the Borrower and Developer;........
3. In terms of the loan agreement between the borrower and the bank, the housing loan advanced to the borrower by HDFC shall be repayable by the borrower by way of Equated Monthly Installments (EMI). The date of commencement of EMI shall be the first day of the month following the month in which the disbursement of the loan will have been completed and consequently the due date of payment of first EMI shall in such a case be the last day of the said following month. Till the commencement of EMI the borrower shall pay PreEMI, which is the simple interest on the loan amount disbursed calculated at the rate of interest as mentioned in the respective loan agreement of the borrower.
4. That irrespective of the stage of construction of the Project and irrespective of the date of handing over the possession of the flat/residential apartment to the Borrower by the developer, the Borrower shall be liable to pay to HDFC regularly each month the EMIs as laid down in the Loan Agreement to be signed by and between HDFC and the Borrower. The Borrower shall execute an indemnity and such other documents as may be required by HDFC in favour of CS No. 58265/16 HDFC Vs. Pushkar Singh 20/ 24 HDFC in this regard.
6.10 In Sandeep Kumar (supra), wherein also the leave to defend application was dismissed and which case was based upon exactly similar facts as the present one, it was held as under:
"10. Hence a conjoint reading of above clauses of Tripartite Agreement clearly shows that it was at the request of defendant No.1 that the plaintiff has given a loan of Rs.22 lacs. There is an unconditional undertaking given by defendant No.1 that there would be no repayment default for any reason whatsoever including any issue between defendant No.1 and 2.
11. Similarly the Home Loan Agreement is exclusively between the plaintiff and defendant No.1. It spells out the obligations of the plaintiff and defendant No.1 respectively and it stipulates the loan amount as Rs.22 lacs repayable in 240 months @ EMI of Rs.20,868/.
12. This court in the case of HDFC Ltd. vs. Umesh Kumar Rai & Anr. (supra) under the similar facts has declined to grant leave to defend. The argument that defendant No.1 has been duped by the builder and the bank in collusion has also been rejected.......
15. In my opinion defendant No.1 has failed to make out any ground for leave to defend. In case evidence is lead, no new facts or issues are likely to be clarified or likely to evolve. In the facts and circumstances of the case, given the legal position there is no option but to dismiss the present application for leave to defend. The present application is without any merit and is dismissed."
6.11 In the present case also the liability of the defendant towards the loan agreement is absolute in terms of loan agreement and is not to be influenced by tripartite agreement or for that matter any other agreement executed between the defendant and the builder.
6.12 Further reliance may be placed upon the law laid down in Sandeep Kumar vs. Housing Development Finance Corporation Ltd and anr RFA (OS) 50/2015 dated 25.08.2015 and Housing Development CS No. 58265/16 HDFC Vs. Pushkar Singh 21/ 24 Finance Corporation Ltd. Vs. Ravinder Dhankar and anr CS (OS) No. 2108/2012 decided on 14.09.2015 wherein similar defences as raised by present defendant regarding collusion etc. were rejected and it was held that it is the absolute liability of the borrower to repay the loan.
6.13 As far as plea that this court has no jurisdiction to entertain the present suit in view of the provisions of Recovery of Debts Due to Banks and Financial Institutions Act 1993 is concerned, suffice would be to say that the plaintiff is not a banking company nor it transacts business of banking in India. Therefore the present civil suit is maintainable. Reliance in this regard may be placed upon the law laid down in Housing Development Finance Corporation Ltd. Vs. Saiba Suri CS (OS) 1785/2010 dated 03.12.2012 and Housing Development Finance Corporation Ltd. Vs. Hemant Kumar Singh and anr CS (OS) 36/2013 dated 17.08.2015.
6.14 As far as the plea regarding lack of territorial jurisdiction is concerned same is also meritless for the simple reason that the tripartite agreement was executed at Delhi, the loan agreement was also executed at Delhi and even the promissory note was executed at Delhi. Most importantly defendant is a resident of Delhi as is evident from the loan agreement and the memo of parties. In view of section 20 of the CPC, as the defendant is a resident of Delhi and cause of action also accrued within the jurisdiction of this court, this court has the territorial jurisdiction to entertain and adjudicate CS No. 58265/16 HDFC Vs. Pushkar Singh 22/ 24 the present dispute irrespective of the fact that the property is not situated within the jurisdiction of this court. Moreover the law is well settled that the debtor must seek the creditor. Reliance may be placed upon the law laid down in Satyapal vs Slick Auto Accessories Pvt. Ltd. & dated 05.03.2014 RSA No.40/2013 and CM 3203/2013(stay) and Maya Jain vs Yash Chhabra dated 27.04.2015 CS(OS) 2254/2013 & IA No.10525/2014.
6.15 As far as plea that the present suit has not been filed on behalf of the plaintiff by a duly, competent person, the same falls flat in view of the Board of Resolution dated 07.05.2012 and letter of authority dated 14.03.2016 which categorically authorizes Mr. Diganta Baurah, Assistant General Manager of the plaintiff to file the present suit on behalf of the plaintiff.
6.16 In fact para 17 of the leave to defend application reveals that it was on account of "financial crisis" that the defendant failed to repay the loan/EMI. As already discussed above builder's default or failure on the part of the builder to deliver the suit property/project though may give the defendant cause of action to initiate appropriate action against the builder however he cannot take cover behind the builder's default for not paying the loan/EMI.
6.17 Therefore in view of above discussion leave to defend application CS No. 58265/16 HDFC Vs. Pushkar Singh 23/ 24
stands dismissed. Plaintiff is entitled to a decree for a sum of Rs. 21,41,402/ along with pendente lite and future interest @ 6% per annum. I order accordingly.
7. Decree sheet be prepared accordingly.
8. File be consigned to record room after necessary compliance.
Announced in the open Court (Gaurav Rao)
on 14th January 2019 ADJ02 & Wakf Tribunal /
New Delhi District,
Patiala House Courts, Delhi.
CS No. 58265/16 HDFC Vs. Pushkar Singh 24/ 24