Icici Home Finance Co Ltd vs Binod Kumar & Anr

1.The plaintiff has filed this suit against the defendants for recovery of 1,21,95,003/- with interest @ 24% pa for permanent injunction, infringement

of trademark, passing off, damages, dilution, rendition of accounts against the defendants.

2.The plaintiff alleges to be a company incorporated under the provisions of the Companies Act, 1956 having its registered office at ICICI Towers,

Bandra Kurla Complex, Bandra (East), Mumbai â€" 400051 and its Branch Office at 2nd Floor, Videocon Tower, Jhandewalan Extn., New Delhi. It

is engaged in the business of providing finance facilities to its customers for the purchase/ construction against the mortgage immovable property.

Mr.Sandeep Sharma is authorised to institute this suit. The defendants are the purchasers and have availed the loan to the tune of 50,80,850/- under its

Home Loan Scheme vide loan agreement bearing No.NHDEL00000731824 against the mortgage of their built up property bearing House No.290,

Block A-I, Sushant Lok Phase - II, Gurugram â€" 122001 (hereinafter referred as ‘mortgaged property’).

3.It is alleged defendants approached the plaintiff company at their branch office at Jhandawalen Extension, New Delhi - 110055 in the month of

April/May 2008 and required loan facility from the plaintiff for the purchase of mortgaged property. The credit facility application form was filled up

by the defendants and on their assurances the plaintiff agreed to grant finance facilities to them. The defendants executed credit facility application

form dated 13.05.2008 containing all the terms and conditions of the loan. A total sum of 50,80,850/- was disbursed to the defendants on 15.05.2008

by the plaintiff company from its office at Jhandawalen Extension, New Delhi â€" 110055 for the purchase of the mortgaged house. The loan

disbursement memo is also annexed with the plaint.

4.The said loan of 50,80,850/- was initially repayable with the prevalent interest @ 14% per annum in 120 Equated Monthly Installments

(EMIs)of 78,889/- each in terms of the aforesaid loan agreement. The said EMIs were payable till 10.12.2020. It was a floating rate of interest

which was subject to change from time to time which may be adjusted in the tenure and/ or the EMIs amount. All the original title documents of

mortgaged property are in possession of the plaintiff viz the sale deed dated 16.05.2008 in favour of the defendant No.1; the agreement to sell and

copy of the agreement for fittings and fixtures; copy of the sale deed dated 01.06.2006 in favour of the seller and previous complete chain of title

documents.

5.The defendants failed to discharge their liability in time and defaulted in making regular payments of the EMIs and have been extremely irregular.

The plaintiff thus terminated the loan agreement and recalled the entire loan amount and the loan was classified by the plaintiff bank as a Non

Performing Asset (NPA) in accordance with the relevant regulations and guidelines issued by the Reserve Bank of India from time to time.

6.The plaintiff in exercise of its right got issued notice dated 16.07.2010 under Section 13 (2) of the SARFAESI Act, 2002 to the defendant No.1 and

called upon him to make payment of 68,48,614/-as per the statement of account dated 16.07.2010. However, the defendants failed to make the

payment and per statement of account dated 07.03.2014 the defendants are liable to pay the suit amount of 1,21,95,003/- which they failed to pay

despite repeated requests and demands hence the plaintiff filed the suit for recovery of suit amount of 1,21,95,003/- with simple interest @ 24% pa

from 07.03.2014 till date of realization.

7.The defendants were proceeded ex parte vide order 20.11.2015. The ex parte evidence was recorded by way of filing of an affidavit of PW1

Sh.Sandeep Sharma, an authorised representative of the plaintiff, who reiterated the facts as stated in the plaint and proved power of attorney as

Ex.PW1/A; credit facility application form as Ex.PW1/B; the sale deed dated 16.05.2008 as Ex.PW1/C; agreement to sell dated 13.05.2008 as

Ex.PW1/D; the agreement for fitting and fixtures dated 13.05.2008 as Ex.PW1/E; the sale deed dated 01.06.2006 as Ex.PW1/F; sale deed dated

10.07.2003 as Ex.PW1/G; the sale deed dated 10.01.1996 as Ex.PW1/H; possession letter dated 12.02.1996 as Ex.PW1/I; the transfer certificate

dated 08.08.1995 as Ex.PW1/J; flat buyer agreement dated 08.08.1995 as Ex.PW1/K; title survey report dated 01.05.2008 as Ex.PW1/L; legal notice

dated 16.07.2010 as Ex.PW1/N; and statement of account dated 16.07.2010 duly certified as Ex.PW1/O.

8.The present suit has been filed on 13.10.2014. The loan agreement Ex.PW1/B was entered into between the parties on 13.05.2008. The said

agreement provides for 120 EMIs to the tune of 78,889/- each and the loan was payable till 10.12.2020 through EMIs. The loan amount was since

secured by mortgage of the property and since the original title documents are in possession of the plaintiff so considering the terms and conditions of

the loan and it being a secured one through mortgage, so as per provisions contained in Article 62 of the Limitation Act, the suit of the plaintiff is well

within limitation.

9.The Article 62 of the Limitation Act notes:-

“62. To enforce payment of 12 years from when the money money secured by a sued for becomes due mortgage or otherwise charged uponÂ

immovable property.â€​

10.Further, the Division Bench of this Court in M P Mansinghka vs Industrial Finance Corporation of India AIR 2007 Delhi 81 on the issue of

limitation notes:-

“2.The liability of the Director has to be ascertained not from the date when he tendered resignation or from the date when he had revoked the

personal guarantee as was offered by him but from the date when the loan was advanced and the loan agreement was executed unless the creditor

itself consents or approves to any subsequent arrangement. Admittedly, the loan was advanced in the year 1991 and, therefore, the said resignation

dated 20.1.1997 from the Board of Directors could not have absolved the petitioner from his liability and he continued to remain jointly and severally

liable along-with the company and its other Director i.e. respondent Nos.2 and 3 herein. As far as other contention of the petitioner is concerned that

since the loan was advanced in the year 1991 and, therefore, the period of limitation came to an end within 3 years period, has also no force as the

petitioner had given his personal guarantee by mortgaging immovable property in the year 1991 and the limitation for enforcing the claim involving

mortgaged property is 12 years and not 3 years as per Article 62 of the Limitation Act. We, therefore, do not agree with the contention of the

petitioner that since the loan was granted in the year 1991 and on document of acknowledgement of debt was filed on record, therefore, the period of

12 years could not have been taken into consideration for the limitation period. The loan was advanced in the year 1991, loan agreement was also

executed in the year 1991, Deed of Guarantee by mortgaging immovable property was executed in 1991 and taking 12 years period of limitation, the

same would be over only by 2003. In the present case original application was filed in the year 2000 which was numbered in the year 2001, therefore,

taking the said period of 12 years the original application filed by respondent No. 1 was well within limitation and not barred by time.â€​

11.Hence, considering the facts and circumstances of the case where the defendants chose not to appear and contest the suit of the plaintiff coupled

with testimony of the plaintiff’s witness having gone un-rebutted on all counts including limitation; the suit of the plaintiff is hereby decreed against

the defendants for an amount of 1,21,95,003/- with interest @ 12% pa from 07.03.2014 till the date of the realization. The costs of the suit is also

awarded in favour of the plaintiff. Both the defendants are liable to pay the decreetal amount jointly and/or severally being the principal borrower and

guarantor. Decree sheet be drawn.

I.A. 20441/2014

12.In view of above order since the subject property is outside the territorial jurisdiction of this Court, the application is dismissed.