STATE BANK OF INDIA vs MR SHANKER MUKHERJEE on 14 July 2026

FINAL ORDER

This original application has been ilieC by the applicant bank, on -1i.05.2022 through l4r. Harisll Sablok, Chief Manager of the applicant bank, under Section 19 of the RDB Act, 1993 against the defendants for recovery of a sum of P.s.42,,92,370/- together with cost, charges and pendentellite and future interest @ 9.15czi: p.a. rrom datc cf liirig of this T.A. till the realization in f)ll.

2. The briel facts of the case are that at the request of the defendant no.1, the applicant bank sanctioned a Housing Loan Facility of Rs.41,85,000/- on 29.06.2019 for availing financial assistance qua property being Falt bearing No.901, 9th Floor, Tower-C2, Shree Vardhman S"\

Gardenia, Sector-10, Sonepat, Haryana' The defendant no.1 executed all necessry loaning documents on 21.05.2019 and 29.06.2019' In view to secure the due repayment in the aforesaid housing loan defendant no.1 has entered into an agreement to mortgage of the aforesaid property, by way of deposit of the title documents with the applicant bank' The defendant no.2/builder had issued no objection to mortgage dated 27.06'2019 of the aforesaid property by the defendant no.1 in favour ofthe applicant bank' A Tripartite Agreement dated 29'06'2019 executed between defendant no'1 and defendant no'2 with the applicant bank.

3. It is further submitted that the defendants enjoyed and utilized the Loan facility, but failed to maintain the financial discipline and failed to repay the due amounts. The applicant bank requested the defendants to regularize the loan account by visits and letters, but there was no response from the defendants. Hence, the account was classified as NPA dated 24.06.2021. The applicant bank served a demand notice dated 14.04-2022 to the defendants' demanding the amount due as on that date, but failed to recover the same. Thus, the presentT'A' is preferred by the applicant bank to recover its dues'

4. On notice by this Tribunal, defendant no'1 failed to put appearance at all, despite publication' Accordingly, the defendant no.1 was proceeded against expatre on O8.tt'2024. The defendant no'2 put appearance through counsel but failed to flle written statement on time_- anlhe right to file written 9\

statement of defendant no.2 was closed vide order datd 17.12.2025.

5. The defendant no'2 has filed its written arguments. In the written argument the defendant no.2 has denied the facts mentioned in the OA' It is submitted that the defendant no'2 neither obtained/availed any credit facility from the applicant bank nor stood guarantor for defendant no'1 or any other borrower. It is submitted that the said Loan Agreement has been executed between the applicant bank and the defendant no. 1 only and the defendant is not a party to the same. The defendant no'2 had neither executed any loan agreement nor any deed of guarantee, undeftaking upon itself, liability to pay such principal and/or interest' Even as per the contents of the OA the loan transaction is between the applicant bank and the defendant no' 1' As such no direction for payment of any outstanding loan amount including principal or interest under the said Loan Agreement can be passed against the defendant no'2 in the present proceedings. It is further submitted that the Flat No' C2lg}l in the project "Shree Vardhman Gardenia" at Sector-10, Sonepat, Haryana is owned and possessed by the defendant no.2. Though the defendant no'2 had agreed to sell the said flat to the defendant no' 1 under the Flat Buyer's Agreement dated 14'05'2019' however, owing to defendant no'l's failure to pay the agreed sale consideration, the title of the said Flat was not conveyed/transferred to the defendant no' 1' It is fufther submitted that document exhibited by the applicant bank as agreement to mortgage dated 29.06.2019 is simply an agreement to mortgage and S-.\

does not by itself create any mortgage or security interest in favour of the applicant bank. It is submitted that the contention that any documents signed and submitted by the defendant no. 1 is not binding upon the defendant no.2, that through the said document the defendant no.1 has simply undeftaken to create a mortgage of the said flat in favour of the applicant bank. Obviously, the defendant no' 1 could have created a valid mortgage in favour of the applicant bank only after transfer of title of the said flat in his favour and that is why the applicant bank to chose to execute agreement to mortgage and not a mortgage deed. It is further submitted that the no objection dated 27.06.2019 exhibited by the applicant bank also dated not create any valid mortgage or security interest of the said Flat in favour of the applicant bank' The said document merely records a conditional no objection on part of the defendant no.2 for creation of a mortgage of the said Flat by the defendant no' 1 in favour of the applicant bank. The said no objection was subject to the borrower/defendant no. 1 making payment of entire sale consideration and other charges payable to the answering defendant under the said FBA, and also after handing over possession of the said Flat to the defendant no.1 and execution of sale/conveyance deed in his favour. The defendant no' 1 failed to make payment of entire sale consideration and other charges under the said FBA and as such neither the sale/conveyance deed was executed in his favour' nor the possession of the said Flat was handed over to him' The agreed consideration of the said Flat including the one reserved car parking was Rs'52,32,500/- which was payable by the def^endant no' 1 to the defendant

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no.2 under the said FBA, however, the defendant no. 1 paid only an amount of Rs'49,70,875/-' The balance of Rs.2,61,625 was not paid by the defendant no. 1 despite repeated demands. As aforesaid, the no objection given by the defendant no'2 was subject to the compliance of the terms of the FBA by the defendant no. 1 and owing to the breach committed by the defendant no. 1 of his obligations under the said FBA, the said conditional No Objection issued by the defendant no.2 did not become effective or operable at all. It is submifted that the moftgage of the said flat was to be executed by the defendant no' 1 in favour of the applicant bank only after payment of entire sale consideration and consequent registration of the sale/conveyance deed in his favour stands fortified by the terms of 29.06.20t9. the TriPartite Agreement dated

6. The applicant bank has filed evidence by way of affidavit of Mr. Harish Sablok, Chief Manager of applicant bank from Annexure A-1 to Annexure A-14 of evidence.

7. Heard the Ld. Counsel of applicant bank and perused the records. From perusal of the record' it is clear that at the time of executing loan documents the applicant bank has entered into a Tripartite Agreement with the builders along with the borrower' Para 2 of the Tripartite agreement is as follows: - u2. That the Builder/Developer agrees that it has no objection to the Bonowe(s) moftgaging the said flat with proportionate share in land to the 5BI as *curity $'

TA NO. 6t912022 for the sid loan agrd to be advanced by the SBI for the purpose of purchase/construction of the sid flat' In the event of default in the repayment of loan and or the Borrower committing any other default which makes the Botowe(s) liabte for the repayment of the entire amount outstanding in the said loan as per the terms of the Loan Agrement executd betwen the Borrower(s) and the SBI, the Builder shall, at the request of SBI, be under obtigation to not deliver possession to the Botower and/or cancelthe booking and Ny alt the amoun9 received by the Builder on behalf of the Bonowe(s) to SBI including aln any amount paid by the Borrower to the Builder' However' the Buitder/developer shatl be entitled to recover cancellation and/or any other charges, if any payable by the Bonower under the terms of application form for purchase of the said flat and/or agrement to sale/construction out of the Borrower's contribution' tJpn PaYment of the amounts bY the Buitder/Devetoper to SBI as aforeaid, the SBI and the Borrower wilt not have any claim, chargg lien' mortgagq righl titte and interestetc' whaBoever' over the sid flat. SBI shatt issue a cettificate to release any mortgage/charge/tien creatd on the said flat' The Bonow€r hereby expressly agrees that in the event of defautt in either repayment of the loan or any other default by the Borower, SBI shatlfu entitled to request the Builder to ancel the booking and return the amounts receivd by the Builder and the Borower agrees and acknowledges that any such rquest by SBI and payment made by the Builder under this clause to 5BI shatt be binding upon the Borrower'"

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TA NO. 61912022

8. As per conditions contained in the Tripartite Agreement at para no.2, in case of default by the borrower the amount which has been paid by the borrower to the builder has to be returned to the bank' In the present case the borrower has made default in repayment of the EMIs and therefore, as per condition agreed between the parties, the builder is under obligation to return the entire amount which he has received from the borrower or from the applicant bank in lieu of the payment of the construction of the flat' Mor@ver, from the perusal of the entire facts it is apparent that the borrower has taken the loan and the loan amount has been paid to the builder for construction of the flat. The applicant bank has not claimed that the builder in violation of the terms and conditions has handed over the flat to the defendant no.1. The borrower has not taken any amount in his account and the entire amount has been paid to the builder. In addition to this the borrower has also paid the margin money to the builder and also paid ceftain EMIs as mentioned by the applicant bank' The borrower has not got the possession of the flat' If the borrower is directed to pay the amount which has been actually paid to the builder this will amount double penalty on the borrower. The borrower has received no money and has still paid the margin money and also certain EMIs to the bank and has got in return nothing' In such circumstances and as per agreed terms and conditions it is only the builder who is liable to pay the defaulted amount to the applicant bank' s.\

In the light of the above discussions, the present T'A' deserves to be allowed against defendant no. 2.

ORDER

1) I hereby allow this T.A. of the applicant bank and direct the defendant nos' 2 to pay to the applicant bank within 30 days from today, a sum of Rs.42,92,3201- along with cost, expenses and interest @ 8.85o/o from the date of filing of this O.A. which has become T'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 mortgaged propefi bearing Falt No.901, th Floor, Tower-C2, Shree Vardhman Gardenia, Sector-1O, Sonepat, Haryana' In case of short fall, the same shall be recovered from the sale of personal movable and immovable asses of the defendant no.2.

3) Recovery Certificate be issued forthwith and be sent to Recovery Officer, Debts Recovery Tribunal-Il, 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. 9\\

5) Parties are direct to appear before the Ld' Recovery Officer, DRT-II, Delhion t4.09.2026. Pending IAs, if any, stand disPosed of. File be consigned to records. ( s.\ Date : 14.07.2026 r rt (SUSHIL KUMAR RASTOGI) PRESIDING OFFICER DRT-II, Delhi This judgement has been signed, dated and pronounced in oPen court. Date : 14.07.2026 si\ (susHrl KUMAR hirSrOcr) PRESIDING OFFICER DRT-II, Delhi