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Axis Bank V/S Shyambeer Nath Tiwari and Others.


Company & Directors' Information:- AXIS BANK LIMITED [Active] CIN = L65110GJ1993PLC020769

Company & Directors' Information:- I AXIS LIMITED [Active] CIN = U72200TG2003PLC040977

Company & Directors' Information:- AXIS CORPORATION PRIVATE LIMITED [Active] CIN = U35990MH2010PTC208288

Company & Directors' Information:- NATH PRIVATE LIMITED [Active] CIN = U31908PN2013PTC148540

Company & Directors' Information:- AXIS LTD [Amalgamated] CIN = U51109WB1981PLC034186

Company & Directors' Information:- NATH AND CO LTD [Strike Off] CIN = U15141KL1946PLC000796

Company & Directors' Information:- TIWARI PRIVATE LIMITED [Strike Off] CIN = U34105UP1952PTC002459

    O.A. No. 215 of 2018

    Decided On, 10 February 2020

    At, Debts Recovery Tribunal Delhi

    By, THE HONORABLE JUSTICE: DHARMINDER SINGH
    By, (PRESIDING OFFICER)

    For Petitioner: Karan And For Respondents: Daksh Pandit



Judgment Text


1. This original application has been filed by the applicant bank, on 06.03.2018, through Mr. Aman Deep Chugh, Area Manager, of the applicant bank, under Section 19 of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 against the defendants for recovery of a sum of Rs. 20,13,017/- (Rupees Twenty Lacs Thirteen Thousand and Seventeen Only) along with costs, pendente lite and future interest @24% p.a., from the date of filing of the present application till the realization of this O.A.

2. The brief facts of the case are that the defendant No. 1 & 2 are the principal borrowers of the loan facility availed from the applicant bank, while the defendant No. 3 is the builder with the defendant No. 4 as its director, with whom the defendant No. 1 & 2 have entered into quadripartite agreement to purchase the built-up property. At the request of the defendants, the applicant bank sanctioned housing loan facility for a sum of Rs. 49,12,224/- on 06.11.2012, which was repayable in 180 equated monthly instalments of 54,300/- each. In order to avail the aforesaid facility, the defendant executed, certain loan documents such as loan application, loan agreement etc.

3. It has been submitted by the applicant bank that in order to secure the aforesaid housing loan facility, the defendants mortgaged the property on 08.03.2013 namely, "P-298, Country Homes-II, Jaypee Greens Sports City, Gautam Budh Nagar admeasuring 209.90 sq. yards."

4. It has further been submitted by the applicant bank that after availment of the aforesaid loan facility the defendants did not maintain the financial discipline and inspite of various demands of the applicant bank the defendants failed to regularize the account and in view of the same the account became irregular and declared as N.P.A. Thereafter, the applicant bank issued legal notice dated 15.12.2017, but the defendants failed to regularize the account leaving no option to the applicant bank except to file the present original application against the defendants.

5. Notices were Issued to the defendant No. 1 & 2, despite service they failed to put appearance through counsels and were proceeded ex parte on 11.09.2019. Further, notice was also issued to defendant No. 3 & 4, they put appearance through counsels and filed the written statement and exhibited the documents.

6. In the written statement, the defendant No. 3 & 4 have raised various preliminary objections such as that the defendant No. 3 is not liable to repay the loan amount to the applicant bank as he was only responsible for the construction of the project. The defendant No. 3 has also raised the objection that the present application is barred by jurisdiction and that the entire loan amount was sanctioned to the defendant No. 1 & 2 and accordingly, only the defendant No. 1 & 2 are liable to repay the loan amount to the applicant bank. Further, the defendant No. 3 has raised the objection that the defendant No. 3 has issued a no-objection certificate in favour of the applicant bank, accordingly, the defendant No. 3 is not liable to repay any loan amount to the applicant bank. Accordingly, prayed for dismissal of the present application.

7. To prove its case, the applicant bank leads its evidence by filling the affidavit of AW-1 Mr. Amandeep Chugh, Area Manager, of the applicant bank, who has exhibited the documents which include power of attorney as Ex. AW-1/1(OSR), provisional allotment letter as Ex. AW1/2(OSR), loan application as Ex. AW-1/3, sanction letter as Ex. AW-1/4, permission to mortgage as Ex. AW-1/5, request for disbursement of loan as Ex. AW-1/6, original loan agreement as Ex. AW-1/7, quadripartite agreement as Ex. AW-1/8, legal demand notice alongwith postal receipts as Ex. AW-1/9, foreclosure letter dated 21.11.2017 as Ex. AW-1/10, certified statement of account as Ex. AW-1/11, certificate under Banker's Book of Evidence Act as Ex. AW-1/12, Certificate under Section 65B of the Indian Evidence Act as Ex. AW-1/13 and valuation report dated 12.01.2013 as Ex. AW-1/14.

8. To prove its case, the defendant No. 3 & 4 leads its evidence by filling the affidavit of DW-3, Mr. Navneet Kumar Saxena, who has exhibited the documents which include copy of quadripartite agreement as DW 3/1, copy of application form alongwith undertaking and standard terms and conditions dated 05.05.2012 as DW 3/2, copy of provisional allotment letter dated 19.05.2013 as DW 3/3, copy of letter dated 16.12.2012 as DW 3/4.

9. Heard and record has been thoroughly perused. Before embarking upon the further discussions, it would be appropriate to go through the terms and conditions of the Quadripartite Agreement executed between the parties, which is as under:

"Cause d. That the borrower hereby agrees and confirms that in the event of termination of the provisional allotment of the Unit for any reason whatsoever, or in the event of the Borrower requesting for the cancellation of the provisional allotment of the Unit in his favour, the Consideration received by the Confirming Party/JPSI shall be appropriated in the following order:

(i). the Confirming Party/OPSI shall retain up to a maximum of 10% of the total sale Consideration; and

(ii). the balance shall be directly paid to ICICI by the Confirming Party/JPSI.

Further, irrespective of what is contained herein or any other document, the Company or the Confirming Party/JPSI hereby agree that under no circumstances shall any part of the Loan Amount disbursed by ICICI to the Borrower and received by the Confirming Party/JPSI be retained by the Confirming Party/JPSI in the event of such cancellation.'

10. In the present matter, the quadripartite agreement was executed between all the defendants as well as the applicant bank and as per the same, the defendant No. 3 cannot retain the entire sale consideration as laid down in Clause (d) of the agreement dated 27.03.2013. It is the contention of the defendant No. 3 that no such provisional allotment has been given on behalf of the bank or by the borrower, but apparently, in the present matter, the possession has also not been given and the entire of the loan amount, in lump-sum was paid by the applicant bank to the defendant No. 3 directly, it is not the case of the defendant that they have delivered the actual and physical possession of the flat to the defendant No. 1 and in that eventuality, the defendant No. 3/builder, who were hand-in-glove with the Axis Bank as the amount was to be disbursed in a phased manner, which was not so paid and the amount was transferred in lump-sum and the possession of the property-in-question has also not been given, it is deemed cancellation of the flat-in-question and no such provisional letter was required to be given either by the defendant No. 1 & 2 or by the defendant No. 3 herein. It is an admitted fact that the entire amount of loan apart from the marginal money has been received by the defendant No. 3, therefore, in such like circumstances, the Clause (d) of the quadripartite agreement comes into play very much. Accordingly, the defendant No. 3 is also liable to pay the aforesaid amount which has been received by it from the applicant bank. Accordingly, all the defendants are hereby held jointly & severally liable to pay the same, but the aforesaid amount at the first instance shall be realized from the defendant No. 3 and then defendant No. 1 & 2.

11. The defendant No. 3 has also raised the objection that the present application is barred by jurisdiction. In the present matter, though the Ld. counsel has objected that once the terms & conditions entered into between the parties shows that the jurisdiction has to be vested at Noida, therefore, the present application cannot be filed before this Tribunal. The Ld. Counsel also relied upon various citations, i.e., "State Bank of India Vs. Associated Contractors, (1) SCC 32", "Swastik Gases Pvt. Ltd. Vs. Indian Oil Corporation Ltd., : 2013 (9), SCC 32" and "B.E. Simoese Von Staraburg Neidenthal & Anr. Vs. Chhatisgarh Investment Ltd., : 2015 (12) SCC 225", however, in the present matter, apparently, the quadripartite agreement shows that the documents were executed at Asaf Ali Road, Delhi branch, though, in the agreement, Noida has been mentioned, but apparently, it is simply mentioned that the documents have been executed at Delhi and only Noida would have the jurisdiction, but in the light of the judgment passed by the Hon'ble High Court of Delhi in WP(c) No. 11477 of 2018, in ICICI Bank Vs. Manjeet Kumar Singh, once the agreement has been executed at Delhi, therefore, this Tribunal has got the jurisdiction to try and entertain the present matter as partially, the cause of action has also arisen at Delhi. Apparently, in Noida, there is no Tribunal existing where the proceedings under the RDDB&FI Act, can be filed. Moreover, in the agreement has been executed at Delhi, therefore, in the light of the principle laid down in the Manjeet Kumar Singh(supra), this Tribunal has got the jurisdiction and as cause of action ha also arisen at Delhi. In the given circumstances, the citations referred on behalf of the applicant bank are not helpful. Accordingly, it is held that this Tribunal has got territorial jurisdiction to try and entertain the present O.A.

12. The applicant bank has fully corroborated the averments made in the O.A. Even otherwise the whole case of the applicant bank is based on the documents and the witness has duly proved all these documents. The evidence filed by the applicant bank gone unrebutted and there is no question of disbelieving the evidence lead by the applicant bank and applicant bank has proved its case beyond reasonable doubts. Hence, it is proved on record that the defendant has availed the loan facility, certainly, the defendant is liable to pay the aforesaid amount. Accordingly, the bank is entitled to recover the entire amount from the defendant alongwith interest as agreed between the parties. Resultantly, in the light of the above discussions, the Original Application deserves to be allowed.

ORDER

(i). Consequently, I allow this OA and

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direct all the defendants, but at the first instance the defendant No. 3, to pay to the applicant bank, jointly or severally, within a period of 30 days, a sum of Rs. 20,13,017/- (Rupees Twenty Lacs Thirteen Thousand and Seventeen Only) together with costs and future interest @10.50%p.a., from filing of the present application, till the realization of the O.A.; failing which the aforesaid amount shall be recovered from the sale of mortgaged property i.e., "P-298, Country Homes-II, Jaypee Greens Sports City, Gautam Budh Nagar admeasuring 209.90 sq. yards." In case of shortfall, the same shall be recovered from the sale of movable and properties, firstly of the defendant No. 3 & 4 and thereafter of the defendant No. 1 & 2. (ii). The recovery certificate be issued forthwith and be sent to the Recovery Officer-I, Debts Recovery Tribunal-III Delhi. (iii). Parties are directed to appear before the Recovery Officer-I, DRT-III, Delhi on 25.03.2020. (iv). Copies of final order be sent to all concerned free of cost. File be consigned to records. (Pronounced in open court)
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