Back
2015 Supreme(Del) 2430
IN THE HIGH COURT OF DELHI AT NEW DELHI
PRADEEP NANDRAJOG, MUKTA GUPTA, JJ.
Sandeep Kumar - Appellant
Versus
Housing Development Finance Corporation Limited & ANR. - Respondents
RFA(OS) 50/2015
Decided on : August 25, 2015
Mr. N.S. Dalal and Mr. Devesh Pratap Singh, Advocates.
Mr. Ajay Saroya, Advocate for Respondent No.1.
The main legal point established in the judgment is that the borrower's liability to repay a loan and indemnify the lender, as outlined in the Tripartite Agreement, remains even if the builder fails to return the money directly to the lender.
Headnote:
Tripartite Agreement - Loan Repayment - 3, 4, 8, 9, 10, 11 - The court discussed the Tripartite Agreement clauses related to loan repayment, indemnity, and default, highlighting the borrower's responsibility to repay the loan and indemnify the lender. The court emphasized that the borrower's liability was not absolved even if the builder failed to return the money directly to the lender.
Fact of the Case:
HDFC Ltd. filed a suit against Sandeep Kumar for defaulting on a housing loan. Sandeep Kumar claimed that he was duped by the builder and thus not liable to repay the loan. The court found that Sandeep Kumar was solely responsible for loan repayment and dismissed his leave to defend application.
Finding of the Court:
The court found that Sandeep Kumar was obligated to repay the loan as per the Tripartite Agreement, and the builder's failure to return the money directly to the lender did not absolve Sandeep Kumar of his liability.
Issues: The main issue was whether Sandeep Kumar was liable to repay the housing loan or if the builder was responsible due to alleged fraud.
Ratio Decidendi: The court held that the borrower's responsibility to repay the loan and indemnify the lender was clearly outlined in the Tripartite Agreement, and the builder's actions did not relieve the borrower of this obligation.
Final Decision: The court dismissed Sandeep Kumar's appeal and upheld the decision that he was liable to repay the housing loan.
MUKTA GUPTA, J. (ORAL)
1. Aggrieved by the order dated March, 11, 2015 dismissing the leave to defend application under Order XXXVII Rule 3 (5) CPC filed by the appellant Sandeep Kumar in the suit being CS(OS) No.2502/2012 filed by respondent No.1 Housing Development Finance Corporation Ltd. (in short ‘HDFC Ltd.’) under Order XXXVII CPC, Sandeep Kumar prefers the present appeal.
2. In the suit HDFC Ltd. pleaded that while it is engaged in the business of granting loans, especially housing loans, Sandeep Kumar and defendant No.2 M/s Golf Course Sahkari Awas Samiti Limited (in short ‘M/s Golf Course’) jointly approached to avail the housing loan for Sandeep Kumar for purchase of Flat No.3022, Second Floor, Shivkala Charms, Plot No.7, Sector PI-II, Greater Noida, Uttar Pradesh (in short ‘the flat’) in the apartments by the name of ‘Shiv Kala Charms’ being constructed by M/s Golf Course. According to HDFC Ltd. Sandeep Kumar had represented to HDFC Ltd. that he had satisfied about the integrity and capability of M/s Golf Course to complete the project on time and thus a Tripartite Agreement was entered between HDFC Ltd., Sandeep Kumar and M/s Golf Course pursuant whereafter a loan agreement was entered into between HDFC Ltd. and Sandeep Kumar.
3. M/s Golf Course vide their letter dated March 10, 2011 also marked lien of HDFC Ltd. on the flat. Based on the representation of Sandeep Kumar, duly consented and acknowledged by M/s Golf Course, HDFC Ltd. sanctioned a sum of Rs.22 lakhs as loan to Sandeep Kumar for the flat. Out of the total amount of Rs.22 lakhs a sum of Rs.20,35,000/- was disbursed to Sandeep Kumar and a cheque dated March 15, 2011 drawn on HDFC Bank, Surya Kiran Building was issued in favour of M/s Golf Course. The said disbursement in favour of M/s Golf Course was authorised by Sandeep Kumar. Sandeep Kumar also executed a Promissory Note dated March 15, 2011 for the sanctioned sum of Rs.22 lakhs in favour of HDFC Ltd. besides an Indemnity Bond on March 25, 2011. Vide the Indemnity Bond Sandeep Kumar agreed to complete the disbursal under the loan on account of Sandeep Kumar to M/s Golf Course.
4. As per the Tripartite Agreement the loan was payable by Sandeep Kumar by way of equated monthly instalments (EMI) or Pre-equated instalments (PEMI) irrespective of the stage of construction of the project and the date of handing over the possession of the flat. Under the Tripartite Agreement Sandeep Kuamr further agreed to secure HDFC Ltd. by mortgaging the flat to it and M/s Golf Course agreed and confirmed the mortgage created by Sandeep Kumar. M/s Golf Course also undertook not to create any third party rights or security interest whatsoever on the flat without prior written consent of HDFC Ltd. As per the Tripartite Agreement it was also agreed that in case of default in payment of loan to HDFC Ltd. by Sandeep Kumar, any amount payable by M/s Golf Course to Sandeep Kumar on account of cancellation of allotment of flat shall be paid directly to HDFC Ltd. by M/s Golf Course. However, the same shall not absolve Sandeep Kumar from his liability to pay the residual amount outstanding under the loan agreement.
5. It is the case of HDFC Ltd. in the plaint that the last payment made by Sandeep Kumar towards repayment of loan was dated October 05, 2011 and thereafter no amount was paid except that just before the filing of the suit a further a sum of Rs.38,606/- was paid. The outstanding dues not having been repaid HDFC Ltd. sent a loan recall notice dated March 06, 2012 recalling the loan and demanding its outstanding amount as on the date of notice however, Sandeep Kumar failed to pay the sum. When HDFC Ltd. sent a demand notice to M/s Golf Course on April 27, 2012 to refund the amount owed by Sandeep Kumar directly to it even M/s Golf Course failed to refund the amount to be adjusted against the loan account of Sandeep Kumar. Thus according to HDFC Ltd. the principal amount of Rs.20,10,678/- coupled with EMI, additio
