The main legal point established in the judgment is the liability of the defendants for non-payment and violation of agreements, leading to the entitlement of the applicant bank to recover a specific sum from the defendants.

JUDGMENT

Najmi Waziri, J. (Oral)

The hearing has been conducted through hybrid mode (physical and virtual hearing).

1. This petition seeks the setting aside of all proceedings emanating from O.A. No. 984/2016, which was disposed-off by Debt Recovery Tribunal-II (DRT-II), New Delhi by order dated 05.09.2022, holding inter alia reads as under:

"...3. On notice by this Tribunal, all the Defendants failed to cause appearance, despite publication, hence, they were all ordered to be proceeded against ex-parte, vide order dated 24.05.2017 of this Tribunal. However, on an application preferred by Defendant Nos. 1&2, the order was recalled, qua them only, vide order dated 27.08.2018 and their written statement was allowed to be taken on record. During the pendency of the present OA, on 28.11.2018, PNB Housing Finance Ltd., preferred an application Order-1 Rule-10 of CPC, for impleading it as necessary party, on the ground that the charged property has been financed by them to one Sh. Ranjan Chandra Dey and a Housing Loan of Rs.43,41,000/- has been granted by them, on 26.08.2015, against the security of the charged property, which has been mortgaged in its favour. PNBHFL came to knowledge of this case, when it read the notice U/s 13(4) in the Newspaper during the routine checkup. Thereafter, no one appeared on behalf of PNBHFL. Hence said application is not disposed of till date.

4. In their joint written statement, Defendant Nos. 1 & 2 have stated that the present application is not maintainable as the charged property is situated in Greater Noida and the cause of action arose, outside the territorial jurisdiction of this Tribunal. The booking of the charged property was done under the subvention scheme, whereby the answering defendants were not bound to pay any EMIs, till the delivery of possession of the charged property and the same was to be paid by Defendant No.3. The officials of Defendant No.3, themselves, made arrangements for grant of loan. In terms of the provisions of the tripartite agreement, in case of its failure to deliver the possession of the charged property, in terms of timeline of two years and six months in the allotment letter, Defendant No. 3 had undertaken to refund the amount advanced by the applicant bank, with interest, as well as the amounts deposited by the answering defendants. It is also stated that the project is complete and possession has been handed over to 50% of the allottees, but the same has not been handed over to the answering defendants. Defendant No.3 has allotted and handed over possession of the charged property, to a third party, thereby committing fraud of double-selling the same flat. Hence, it is prayed to dismiss the present application, qua the answering defendants.

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8. I have heard the arguments by the applicant bank & the contesting defendants and also gone through the records. The contesting defendants have executed the facility agreement, for availment of the Housing Loan. Hence, the case of the applicant bank stands fully established against the defendants with respect to non- payment of EMI/outstanding amount; non-execution of sale deed by defendant no.3 in favour of defendant no.1 &2, which give rise to presumption that project is not completed by defendant no.3 and if completed sale deed executed in favour of some third party; and violation of terms and conditions of the tripartite agreement on the part of defendant no.3, by not returning the loan amount to applicant bank and earnest/margin money to defendant no. 1 &2.

9. By releasing the whole loan amount at the initial stage in favor of defendant no.3, the applicant bank indirectly financed the project of defendant no.3, without caring for execution of sale deed in favour of defendant no.1 &2 after completion of project. Defendant no.3 failed to hand over the physical possession of the flat to defendant no.1 & 2 after completing the same and sold the same flats of its project to many buyers and FIR no. 50/2017 at PS An