Order 6

Order Details: COPY OF ORDER
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14 CS (COMM) 48/24
Bank Of India Vs. Kavita Ghai
28.05.2024
Present: Sh. Deokant Tripathi, Ld. Counsel for plaintiff.
Sh. Rajesh Kumar, Ld. LAC for defendant no.1 along-with
defendant no.1.
None for defendant no.2 & 3.
Defendants no.2 & 3 are already ex parte.
WS along-with affidavit, statement of truth, affidavit of
admission/denial of documents filed on behalf of defendant.
An application under Order VIII Rule 1 CPC also filed on behalf
of defendant along-with supporting affidavit. Copy supplied. Counsel for
plaintiff submits that they do not wish to file any reply to the application
under Order VIII Rule 1 CPC and would straightaway advance arguments on
the same.
Arguments on the appliction under Order VIII Rule 1 CPC
heard. In the application, it is stated that the defendant has been served on or
about 04.04.2024 and thereafter, the defendant contacted Legal Aid Authority
and Legal Aid Counsel was appointed, but the WS was prepared on
05.05.2024. As the son of the defendant was suffering from viral fever,
therefore, the defendant could not contact the counsel. Therafter, the maternal
uncle of the defendant expired, therefore, the WS could not be filed. It is
thus, prayed that the WS be taken on record and the delay, if any in filing the
WS be condoned as the same has been filed on 21.05.2024.
As per the record, the defendant no.1 has been served on
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03.04.2024. 30 days stipulated period for filing WS had expired on
03.05.2024 and the WS has been filed on 21.05.2024. Thus, there is a delay
of about 17 days in filing the same and therefore, in the interest of justice,
delay of 17 days in filing the WS is condoned subject to cost of Rs.2000/-
payable to the plaintiff. Cost paid and received by the counsel for plaintiff.
Now coming to the another application under Order VI Rule
15A(3) r/w Section 151 CPC is filed on behalf of plaintiff for taking on
record the additional statement of truth. Ld. Legal Aid Counsel for the
defendant no.1 submits that he does not wish to file reply to the said
application and would straightaway advance arguments on the application.
Arguments on the appliction under Order VI Rule 15A(3) r/w
Section 151 CPC heard. In the application, it is stated on behalf of plaintiff
that the amended plaint was taken on record on 06.02.2024 and the statement
of truth was already filed with the earlier plaint but at the time of filing of the
amended plaint, fresh statement of truth could not be filed due to oversight by
the counsel. During scrutiny of the case, this fact came to the knowledge of
the counsel for plaintiff. Request has been made to take the additional
statement of truth on record which could not be filed with the amended
plaint. Application is supported by the affidavit of the AR of the plaintiff.
As it is always better to decide the case on merit than on
technicalities, therefore, in the interest of justice, application under Order VI
Rule 15A(3) r/w Section 151 CPC filed by the plaintiff is allowed and the
additional statement of truth in support of the amended plaint is taken on
record. Application under Order VI Rule 15A(3) r/w Section 151 CPC is
disposed off accordingly.
Lastly, coming to the application under Order 39 Rule 1 & 2
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CPC filed on behalf of plaintiff. The plaintiff has filed the present suit for
recovery of an amount of Rs.16,48,507.27/- stating that the defendant was
granted Home Loan facilities in the year 2012 and was given a Top-up Loan
facilities of Rs.2,89,988/- on 18.01.2018. In this application, it is stated on
behalf of plaintiff that the defendant nos. 1 & 2 and their authorized
representative be restrained from alienating, transferring or creating any third
party interest upon the property bearing No. Flat No.711, Tower-H, 7th Floor
Without Roof Right, Oxy Homez, Pargana Loni Distt.- Ghaziabad, U.P., as
the Home Loan was granted in respect of the said property. Ld. Legal Aid
Counsel for the respondent no.1 submits that they do not wish to file any
reply to the said application and would straightaway advance arguments on
the application. Defendant nos. 2 & 3 are already ex parte and have failed to
appear or contest the matter.
Heard.
The plaintiff had granted Home Loan facility to the defendant
and even Top-up Loan. The loan accounts have already been declared NPA.
The plaintiff thus, have
prima facie case in their favour, the balance of
convenience also lies in favour of the plaintiff. The plaintiff will also suffer
irreparable loss and injury, if defendants create any third party interest or
alienate the property which has been mortgaged by the defendant with the
plaintiff Bank at the time of availing Home Loan facilities. Therefore, in the
interest of justice, application under Order 39 Rule 1 & 2 CPC filed by the
plaintiff is allowed and the defendant nos. 1 & 2 and their authorized
representative are restrained from creating any third party interest or
alienating or transferring the property bearing No. Flat No.711, Tower-H, 7th
Floor Without Roof Right, Oxy Homez, Pargana Loni Distt.- Ghaziabad, U.P.
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till the pendency of the present suit. Application under Order 39 Rule 1 & 2
r/w Section 151 CPC stands disposed off accordingly.
Defendant has not filed any documents along-with WS.
Replication be filed within four weeks. At request, let the same be filed
maximum by 6th of July, 2024.
Put up for admission/denial of documents and settlement of
issues on 10.07.2024.
(Kiran Bansal)
District Judge, Commercial Court-02,
Shahdara District, Karkardooma Courts,
Delhi / 28.05.2024.
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