Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 740/21 in Comm. Suit No. 400/2020. 1 Order.
MHCC010023682021
Presented on : 10-03-2021
Registered on : 10-03-2021
Decided on : 02-09-2021
Duration : 0 years, 5 months, 23 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 740 OF 2021
IN
COMMERCIAL SUIT NO. 400 OF 2020
Mr. Kalpesh Patel ...Applicant /
Orig.Def.No. 1
In the matter between
Housing Development Finance Corporation Limited ...Plaintiff
Versus
Mr. Kalpesh Patel and one other ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 2nd SEPTEMBER, 2021.
Mr. Yogesh Bhoge I/b Jurisperitus Mumbai, Advocate for the plaintiff.
Ms. Saurabhi Vaknis, Advocate for the defendants.
ORDER
1. This notice of motion is moved by the defendants for
adding Lavasa Corporation Limited through its Resolution Professional
as a defendant no.3 in the suit under Order I Rule 10 of the CPC.
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N/m No. 740/21 in Comm. Suit No. 400/2020. 2 Order.
Perused notice of motion, affidavit in reply and affidavit in rejoinder
(Exh.11). I have also gone through rival pleadings in the plaint and
written statement (Exh.7) of defendants no.1 and 2.
2. It is contention of the defendants that they had agreed to
purchase the flat as described in para 4 of affidavit in support from
Lavasa Corporation Limited. The plaintiff had sanctioned loan of
Rs.94,83,950/ for purchasing the said flat. It is case of the defendants
that tripartite agreement dated 17/04/2014 was executed and liability
was imposed on the builder to pay interest to the plaintiff in case the
builder hands over delayed possession of the suit flat as per clause 3.1.
Similarly loan agreement contains the clause 2.4 stating that loan shall
be disbursed in one lump sum or in suitable installment to be decided
by the plaintiff with reference to needs and progress of construction. It
is grievance of the defendants that the plaintiff disbursed the sum of
Rs.59,84,062/ to the builder in three tranches without any concurrence
with them. According to them, Lavasa project is left unfinished and
construction work was not completed by the plaintiff. By placing
reliance upon tripartite agreement dated 17/04/2014, the defendants
want to add Lavasa Corporation Limited in the array of defendants.
The defendants have also sought relief of staying the suit proceeding till
final disposal of the notice of motion.
3. The plaintiff opposed the contention of the defendants
stating that the defendants are attempting to bring on record the new
facts and new documents and they have filed notice of motion with
malafide and deliberate intention of prolonging trial of the suit. The
plaintiff further contended that the defendants have paid the EMIs to
the plaintiff till 15/07/2018 without any protest or demur. The
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N/m No. 740/21 in Comm. Suit No. 400/2020. 3 Order.
contention of the defendants is inconsistent with the loan and security
documents executed by them. They have also raised objection to
contention of the defendants regarding disbursal of the loan amount
without their concurrence. According to them, the loan amount is
disbursed as per the agreement. The plaintiff prayed for dismissal of
the notice of motion.
4. Defendants no.1 filed rejoinder in which he has attempted
to canvass that corporate insolvency resolution process was commenced
from 30/08/2018 as per Company Petition No. 1765/2018 and period
of 180 days prescribed for CIRP of the builder was over on 25/02/2019
and further period of 90 days was over on 26/05/2019. According to
defendant no.1, statutory mandate under Section 12 of the Insolvency
and Bankruptcy Act, 2016 has prescribed maximum limit of 270 days
for completion of the application to initiate corporate insolvency process
from the date of admission.
5. Learned counsel Saurabhi Vaknis for the defendants argued
in consonance with contents in notice of motion and rejoinder. She
drew attention of the Court towards clause 3.1 in the tripartite
agreement and submitted that in the event of unreasonable delay
beyond the period mentioned in the agreement in handing over
possession of the apartment to the lessee inspite of receipt of the total
consideration by Lavasa from the lessee or from HDFC, Lavasa will be
liable for the consequences of the said agreement and shall pay the
interest as mentioned in the said agreement. She further submitted that
the builder is necessary party as per tripartite agreement. She relied
upon citations filed with rejoinder. I have gone through the same.
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N/m No. 740/21 in Comm. Suit No. 400/2020. 4 Order.
6. Learned counsel Shri Yogesh Bhoge for the plaintiff
submitted that liability is joint and several as per clause 2.11 of the loan
agreement. He pointed out relevant clause printed on page no.118 to
the plaint. He also relied upon clause no.4.1 of the loan agreement.
The borrower shall be liable to repay the loan amount and therefore,
the builder is not made party to the suit. He further submitted that the
builder is a corporation. He contended that facts and circumstances of
the present case are different from facts in the citations and they are not
applicable. According to him, builder is not a necessary party. He
submitted that the notice of motion may be dismissed.
7. On perusal of documents on record, the defendants have
executed the loan agreement in favour of the plaintiff and they are
jointly and severally liable to pay the loan amount. Tripartite
agreement imposed liability on the builder as per clause 3.1. In case of
unreasonable delay in handing over possession of the apartment or
flats, liability is restricted to payment of the interest to HDFC till date of
handing over of the possession of the apartment as mentioned in the
agreement. In short, the builder is liable to pay interest to the plaintiff
in case of delay in handing over possession of the apartment. Tripartite
agreement does not extend liability of the builder to pay loan amount
to the plaintiff. The defendants are only responsible for the repayment
of loan amount. Liability of defendants is joint as well as several. Loan
agreement governs the rights and liabilities of the plaintiffs and
defendants.
8. Learned counsel Saurabhi Vaknis for the defendants relied
upon order of Hon'ble Bombay High Court in Anandghan
Griharachana Sahakari Sanstha Maryadit V/s. The Union of India
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N/m No. 740/21 in Comm. Suit No. 400/2020. 5 Order.
and ors. (W.P.No. LDVC44/2020) . I have gone through the order of
the Hon'ble Bombay High Court in which fact of loan agreement and
tripartite agreement is considered. Similarly, the builder had failed to
complete the construction and hand over possession to the home
buyers. By considering all these aspects, Hon'ble High Court had
granted interim relief by restricting the banks from recovering the EMIs
from the home buyers. Facts and circumstances of the present case are
similar to the facts in the citation relied by the defendants.
9. Though the defendants are liable to pay loan amount in
consonance with the loan agreement, the builder is equally responsible
to pay interest to the plaintiff for delayed delivery of possession of the
apartment. The defendants have specifically stated that the builder
failed to complete construction of the suit flat and entire Lavasa project
is left unfinished. The defendants did not get the thing (flat) for which
they had drawn the loan amount from the plaintiff. Loan amount is
disbursed to the builder. The defendants are being made to suffer
without achieving purpose for which loan was taken. In such
circumstances, there is no reason to exclude the builder from the
present proceeding and for letting him to be free from clutches of
tripartite agreement. Hence, I pass the following order :
ORDER
1. Notice of Motion No. 740/2021 is made absolute in terms
of prayer clause (a) and (b).
2. The plaintiff is directed to carry out amendment in the
plaint on or before the next date of hearing.
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N/m No. 740/21 in Comm. Suit No. 400/2020. 6 Order.
3. N/m No. 740/2021 is disposed off accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 02/09/2021. Mumbai.
1. Dictated on : 02/09/2021.
2. Transcribed on : 03/09/2021.
3. Signed on : 03/09/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04/09/2021. 11.16 a.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 02/09/2021.
Judgment/Order signed by P.O. on 03/09/2021.
Judgment/Order uploaded on 04/09/2021.
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