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Judgment
The present appeal is filed to impugn the final order dated 03.04.2024 passed by DRT-II, Delhi in O.A. bearing No. 222/2020 titled as State Bank of India v. Shri Bhagwan Das Sharma & others.
The relevant facts of the case are that the appellant sanctioned a home loan facility of Rs. 25.00 lacs on 04.07.2013 in favour of respondents no.1 and 2 for purchase of a Flat bearing No. H-3-801, Tower No. E, (8th) Floor, 1190 Sq. Ft. Classic Residency, Raj Nagar, Ghaziabad-201003, Uttar Pradesh (hereinafter refer to as "the subject flat") from respondent no.3 being builder. The respondents no.1 and 2 have executed various loaning documents dated 29.07.2013. The respondent no.3 also executed Builder Buyer Agreement dated 23.02.2013 in favour of respondents no.1 and 2.
The respondents no.1 and 2 have also agreed to create equitable mortgage in respect of the subject flat and deposited the title documents with the appellant. The respondent no.3 had also issued permission to mortgage the subject property by respondent no.1 in favour of the appellant and a Tripartite Agreement dated 26.07.2013 was entered into between the appellant, respondents no.1 and 2 and respondent no.3.
The respondents no.1 and 2 could not stick to the financial discipline and committed default in the repayment of the loan amount as a result of which, the loan account was declared as Non Performing Assets on 30.06.2019. The appellant also served the legal notice dated 04.08.2020 on the respondents.
The appellant preferred the Original Application bearing No. 222/2020 titled as State Bank of India v. Shri Bhagwan Das Sharma & others before DRT-II, Delhi, which was decided, vide impugned order dated 03.04.2024. The operative part of the impugned order dated 03.04.2024 is reproduced as under:
ORDER
1)I hereby allow this O.A. of the Applicant Bank and direct the defendant no. 3 to the applicant bank within 30 days from today, a sum of Rs.23,72,064/- along with cost, expenses and interest @ 9.95% simple from the date of filing of this O.A. till the date of realization.
2)In case of failure to deposit the above amount within the stipulated period, the same shall be recovered from the sale of the property bearing no. H 3-801, Tower No. E, 8th Floor, 1190 Sq. Ft. Classic Residency, Raj Nagar Extension, Ghaziabad-201003, Uttar Pradesh. In case of short fall, the same shall be recovered from the sale of personal movable and immovable assets of the defendant no. 3.
3)Recovery Certificate be issued forthwith and be sent to Recovery Officer, Debts Recovery Tribunal-II, Delhi.
4)The registry of this Tribunal is hereby directed to issue free copy of the order and send the same to both the parties.
5)Parties are direct to appear before the Ld. Recovery Officer, DRT-II, Delhi on 06.06.2024. Pending IAs, if any, stand disposed of.
File be consigned to records.
The appellant preferred the present appeal due to the reason that the O.A. bearing No. 222/2020 was only allowed against respondent no.3. She further stated that the appellant has already taken the physical possession of the subject flat on 04.04.2026 through Court Receiver appointed by the Recovery Officer in R.C. No. 43/2024 titled as State Bank of India v. Bhagwan Das Sharma & others.
Ms. Jaya Tomar, Advocate for the appellant, on instruction, from Arnab Pal, Manager, State Bank of India, SARB, New Delhi stated that, as on today, a sum of Rs.40,29,969/- is outstanding against respondents no.1 and 2.
The respondents no.1 and 2 also filed a consumer complaint bearing Complaint Case No. 1394/2016 before the Delhi State Consumer Disputes Redressal Commission against respondent no.3 titled as Sh. Bhagwan Das Sharma v. M/s Shree Energy Developers Private Limited, which was allowed vide judgment dated 10.04.2023. The operative part of the order dated 10.04.2023 is reproduced as under:
21.Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to refund the entire amount paid by the Complainants i.e. Rs.32,25,000/- along with interest as per the following arrangement:
A. A simple interest @ 6% p.a. calculated from the date on which each instalment/payment was received by the Opposite Party till 10.04.2023 (being the date of the present judgment);
B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party pays the entire amount on or before 10.06.2023
C. Being guided by the principles as discussed above, in case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 10.06.2023 the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each instalment/payment was received by the Opposite Party till the actual realization of the amount.
An appeal bearing No. NC/FA/650/2023 against the aforesaid order dated 10.04.2023 before the National Consumer Disputes Redressal Commission is pending.
The efforts are made for amicable settlement of the disputes between the parties.
Ms. Jaya Tomar, Advocate, on instruction, from Sh. Arnab Pal, Manager stated that the outstanding dues against the respondents including respondents no.1 and 2 would be satisfied if Rs. 39.00 lacs is paid to the appellant within 60 days, although, the request was made for 45 days.
The respondents no.1 and 2 also stated that if the respondent no.3 paid Rs.27.00 lacs then their claim arising out of the order dated 10.04.2023 passed by the Delhi State Consumer Disputes Redressal Commission in CC No. 1394/2016 vide judgment dated 10.04.2023 would be satisfied.
The respondent no.3 being the builder stated that he shall pay Rs.39.00 lacs to the appellant and Rs.27 lacs to the respondents no.1 and 2 within a period of 60 days from today towards full and final satisfaction of their respective claims and, thereafter the possession of the subject flat bearing No. II-3-801, Tower No. E, 8th Floor, 1190 Sq. Ft. Classic Residency, Raj Nagar, Ghaziabad-201003, Uttar Pradesh be handed over to the respondents no.3 in the condition which was prevailing on the date of taking of the possession by the appellant.
In view of the above submissions, the following directions are passed:
The respondent no.3 shall pay Rs. 39.00 lacs to the appellant within a period of 60 days from today in two equal instalments without any default against receipt.
The respondent no.3 shall pay Rs.27.00 lacs to the respondents no.1 and 2 i.e. Sh. Bhagwan Das Sharma and Smt. Anita Sharma in two equal instalments against receipts without any default.
The appellant after the receipt of the settled amount Rs. 39.00 lacs from the respondent no.3 shall not claim any right, title or interest whatsoever in respect of the subject flat and shall handover the vacant physical possession of the subject flat to the respondent no.3 within a period of 07 days after receipt of the settlement amount of Rs. 39.00 lacs.
The respondents no.1 and 2 after receipt of the settlement amount of Rs.27.00 lacs from the respondent no.3 shall not claim any right, title or interest in respect of the subject flat or they shall not be making any claim arising out of the judgment dated 10.04.2023 passed by the Delhi State Consumer Disputes Redressal Commission in Complaint Case No. 1394/2016.
The appellant on prior intimation from the respondent no.3 shall allow the respondent no.3 to bring any prospective buyers for the physical inspection of the subject flat.
The respondent no.3 after receipt of physical possession of the subject flat shall withdraw the appeal bearing No. 650/2023 stated to be pending before National Consumer Disputes Redressal Commission.
The respondent no.3 shall be at liberty after payment of the entire settled amount to the appellant and the respondents no.1 and 2 to dispose of the subject flat or to create any right, titled or interest in any manner in favour of their party without any objection either from the appellant and respondents no.1 and 2.
It is directed after execution of the above terms and conditions, the Recovery Certificate No. 43/2024 titled as State Bank of India v. Bhagwan Das Sharma & others shall stands satisfied and considered to be disposed of.
The appellant after receipt of the settled amount of Rs.39.00 lacs from the respondent no.3 shall issue a No Dues Certificate in favour of respondent no.1 and 2 within 07 days.
In case of any default by any of the parties in execution of the above terms and conditions, the concerned parties shall be at liberty to revive the present Appeal.
With these directions, the present appeal stands disposed of. Copy of this order be given Dasti to the concerned parties.