H.D.F.C. Ltd. vs Nirmal Singh

V.K. Jain, J.—This is a suit filed under the provisions of Order 37 of the CPC for recovery of Rs. 35,44,239/-. The case of the plaintiff,

which is a leading Housing Finance Company, is that defendant approached it for grant of a housing loan to the tune of Rs. 37 lakh for purchase of

a flat bearing No. 1053, 5th Floor, Tower-I, Shivkala Charms--Golf Course SAS Ltd. Plot No. 07, Sector Pi II, Greater Noida, District Gautam

Budh Nagar, U.P. The plaintiff processed the application received from the defendant for grant of loan and sanctioned a loan of Rs. 36,40,000/-

to him. The loan was to carry interest at rate of 10% at variable/admissible rate of interest for a period of 20 years. Pursuant to sanction of the

loan, the defendant executed a General Power of Attorney in favour of one Lokesh Singh, who, acting under the said Power of Attorney, executed

documents such as promissory note, loan agreement, etc. in favour of the plaintiff-company. Acting on those documents, the plaintiff disbursed part

payment of Rs. 34,13,000/- to the defendant on 28.03.2011 vide cheque dated 18.03.2011. Under the agreement, in the event of default in

payment of EMI and/or pre EMIs and other dues, payable to the plaintiff, the plaintiff was entitled to recall the loan extended by it. The plaintiff

was also entitled to recall the loan in case it was found that any information supplied by the borrower was incorrect or misleading. It is alleged that

the loan account of the defendant became irregular with effect from July, 2011. It is further alleged that on enquiry, it transpired that the defendant

had furnished false and fabricated documents to procure the loan. The plaintiff accordingly sent a legal notice dated 20.09.2011 to the defendant

recalling the entire loan outstanding. However, the outstanding loan was not cleared despite notice. A sum of Rs. 33,87,877/- is stated to be due

from the defendant as the pre-outstanding amount, Rs. 14,5,233/- are stated to be due as the amount of outstanding EMIs and an amount of Rs.

7,438/- is stated to be due as additional interest. The plaintiff is also seeking to recover incidental charges amounting to Rs. 3,691, thereby making

a total sum of Rs. 35,44,239/-.

The defendant was served by way of publication in the newspapers. No appearance has been filed by the defendant, despite service by

publication in ''The Statesman'' and ''Dainik Jagran'' dated 17.08.2012. Consequently, the plaintiff has become entitled to judgment forthwith.

The plaintiff has placed on record the home loan agreement dated 28.03.2011 as also the promissory note executed on the same date. A

General Power of Attorney purporting to be executed by the defendant in favour of one Lokesh Kumar Singh, authorizing him, inter alia, to apply

for loan with the plaintiff-company, accept the loan offer, receive the disbursed amount, mortgage any property of the defendant and execute loan

agreement, promissory note, etc. in favour of the plaintiff has also been filed. The plaintiff has placed on record the statement of account in respect

of loan granted to the defendant and a sum of Rs. 35,44,329/- including incidental charges amounting to Rs. 3691 is shown as due from the

defendant in loan account No. 601414743 as on 31.10.2011.

The plaintiff has today filed a supplementary affidavit by way of evidence along with certain documents. A perusal of the supplementary affidavit

of Mr. D.K. Gupta, Assistant General Manager of the plaintiff company would show that the plaintiff had obtained the photocopy of the Identity

Card issued to the defendant by his employer NTPC Ltd., as a proof of his identity and also the mobile bill as a proof of his name and address.

The address given on the mobile bill is the same as is given in the plaint. The plaintiff had also obtained a copy of the Pan Card of the defendant as

a proof of his identity. The plaintiff also obtained a photocopy of the election card issued to Mr. Lokesh Singh, Attorney of the defendant who

executed the documents on his behalf.

A perusal of Clause 27 of the Loan Agreement executed by the defendant through his attorney would show that in the event of delay in the

payment of EMI, the defendant was required to pay additional interest @ 18% per annum or at such higher rate as per the rules of the plaintiff in

this regard.

For the reasons stated herein above, the plaintiff is entitled to a decree for recovery of Rs. 35,40,548/-. The incidental charges amounting to Rs.

3691/- cannot be claimed in a suit under Order 37 of the Code of Civil Procedure. Accordingly, a decree for recovery of Rs. 35,40,548/- with

proportionate costs and pendent lite and future interest @ 6% per annum is hereby passed in favour of the plaintiff and against the defendant.

Decree sheet be drawn accordingly.