AXIS BANK vs SANKER KUMAR ROY AND OTHERS on 16 June 2025

FINAL ORDER

This original application has been filed by the applicant bank, on 30.11.2016 through Mr' Aman Deep Chugh, Authorised Representative of the applicant bank, under Section 19 of the RDB Act' 1993 against the defendants for recovery of a sum of Rs'22'42'6761- together with cost, charges and pendentellite and future interest @24olo from date of filing of this O'A' till the realization in full.

2. The brief facts of the case are that at the request of the defendant nos.1 and 2, the applicant bank sanctioned a Home Loan Facility of Rs'23'99'485/-' vide sanction letter dated 19'01'2015 for purchase the Sr\- TANO. 43712023 built up property bearing Flat No-2405' Tower-B' 24hFloor,EKDANTFNG,PlotNoHRA-12/B'Surajpur Site C, Greater Noida, Gautam Budh Nagar (U'P)- 203131 to be constructed in its residential project *EKDANT FNG" PIOI NO HRA-12/B, SUTAJPUT SitC C, GreaterNoida,GautamBudhNagar(U'P)-203131tobe developed by the defendant no'3/builder' The defendant nos.1 and 2 executed all necessary loaning documents 23.04'20L5' The defendant no'1 and the defendant no.3 also entered into Tripartite Agreement dated 23.04.2015 with the applicant bank' It is submitted that subject to terms and conditions of the sanction letter dated 19'01'2015' Agreement for Home Loan Bearing No' PHR063601364803' the Tripartite Agreement dated 23'04'2015 and the joint representation made by the defendant nos'1 and 2 for disbursement of loan in favour of defendant no'3' the applicant bank has paid and disbursed the loan amount of Rs.20,34,89U- to the defendant no'3 for and on behalf of the defendant nos'1 and 2 and as such' the liabilityofthedefendantstowardstheapplicantbankis joint and several' The defendant no'3 has also issued a letter dated 23'04'2015 thereby giving permission to mortgage the aforesaid property in favour of the applicant bank to secure the repayment of the loan amount, thereby, creating a first charge and the security interest in favour of 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 amoun6. The appl'pan! bank requested the f{

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defendants to regularize the loan account by visits and letters, but there was no response from the defendants.Therefore,theapplicantbankserveda demand cum loan recall notice dated 25'10'2016 to the defendants, demanding the amount due as on that date, but failed to recover the same' Thus' the present O.Aff.A' is preferred by the applicant bank to recover its dues.

4. On notice by this Tribunal' defendant nos' 1 & 2 put appearance through counsel but failed to file written statement and evidence' Thereafter' the defendant nos.l & 2 faited to put appearance in the matter. The defendant no'3 failed to put appearance at all. Accordingly, defendant nos'1 to 3 were proceeded against exparte on 2l't2'2023'

5. The applicant bank has filed their documents as Annexure A-1 to Annexure A-11 which have gone unchallenged and un-rebutted' Hence' the case of the applicant bank stands fulty established against the defendants with respect to nonpayment of EMI/ outstanding amount'

6. Heard the Ld' Counsel for the 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 builder along with the borrower' Para 4 & 6 of the Tripartite Agreement is as follows: - <^'

u4. It is agreed by and betwen the parties to this Agrement that in as if the BORROWER fails to honourthecommitmenathedevetorer/BUILDERshall inform the BANK and the BANK shatt have the right to pay the Sale consideration and get it rqisterd either in BANK's name or its nominee' Likewise in the event the Borrower defautts in payment of instaltments then' in such an event also, the Bank shatl have the right to informaboutsuchdefauttonthepartoftheBorrower totheBuitderandshaltaccordingtyhavetherightto write to the Builder for cancellation of the Agrement exsutd futween the Builder and the Borrower' whereafter the Bank shatt have the right to pay the file consideration and get the subiect property registerd either in the Bank's name or in the name of the Bank's nomin&..

* 6. It is hereby specifically agred and confirmed by the parties to this agrement that in the event of default on the part of the Borower as mentiond in clause 4 abovq the Bank shatt in addition to the remedy avaitabte to the Bank, as is stated in clause 4 above' also have legal right to demand from the Builder the interest due to the Bank from the Botower by recovering the interest amount from the Borrower's margin money that was paid by the tunower in his/her capacity as the cu*omer of the Builder at the time of booking of the subixt flat' The Builder agres and confirms that the Buitder shall not object to the Bank's courseofactioninrecoveringthefunk,sinterestby demanding from the Builder the margin money as stated hereinabove' UPon atnY sych demand made by e).

TA NO. 43712023

the Bank to the Buitder, the Builder shall without any protest or demur pay to the Bank' the demandd amountfromthemarginamountpaidbytheBorrower in his/her capacity as the customer to the Builder"'

7. As per conditions contained in the Tripartite Agreement at 23'04'2015 at para no' 4 & 6' 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 conditionagreedbetweenthepafties,thebuilderis 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. Moreover, 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 nos.1 and 2. 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 certain 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 a1|yt 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' In the light of the above discussions' the Original Application deserves to defendant no.3. be allowed against the

ORDER

1) I hereby allow this T'A' of the Applicant Bank and direct the defendant no' 3 to pay to the applicant bank within 30 days from today' a sum of Rs'22'42'6761' along with cost, expenses and interest @ 10'15o/o from the date of filing of this O'A' which has become T'A till the date of realization' defendant no. 3

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

In case of failure to deposit the above amount within the stiputated period, the same shall be recovered from the sale of the built up property bearing Flat No-2405, Tower-B, 24s Floor' EKDANT FNG' Plot No HRA-12/B, Surajpur Site C' Greater Noida' Gautam Budh Nagar (U'P> 203131 and/ or sale of project land i.e., "EKDANT FNG", Plot No HRA-12/B' surajpur Site C' Greater Noida, Gautam Budh Nagar (U'P)-203131' In case of short fall, the same shall be recovered from the sale of personal movable and immovable assets of the

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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 18'08'2025' Pending IAs, if anY, stand disPosed of' File be consigned to records'

S-\ Date:16.06'2025 (susHIL (uunn RASToGI) PRESIDING OFFICER DRT-II, Delhi This judgement has been signed' dated and pronounced in oPen court' -,--..----t'_ Date : 16.06.2025 sl (SUSHIL KUMAR RASTOGI) PRESIDING OFRCER DRT-II, Delhi (