Allowed

Axis Bank v. Ajay Kumar and Others

DRT28 Aug 2025TA/616/2024

Case brief

AI extract

What is this about?

Admitted a TA filed by a bank against a borrower and the builder-developer. Held that due to borrower default and lack of possession, the builder is jointly liable to repay the defaulted amount under the tripartite agreement terms.

What did the court decide?

Directed defendant no. 5 (Builder) to pay Rs. 38,13,035/- with interest, costs, and expenses within 30 days; recovery via sale of property if default.

Axis Bank versus Ajay Kumar and Others — Specific Performance | DRT (2025)

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Before SUSHIL KUMAR RASTOGI, Presiding Officer Debts Recovery Tribunal-Il, Delhi

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TA No.616 OF 2024

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AXIS BANK LIMITED Vs AJAY KUMAR & ORS

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Reserued on =^29.07.2025 Pronounced on : 28.08.2O25

Axis Bank Limited

-^{Applicant bank}

Vs.

Ajay Kumar

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Mirdu Shahshri

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M/s RPS Associates

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M/s RPS Infrastructure Ltd

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KST Infrastructure h/t. Ltd. - Defendants

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Present: Mr. Rahul Gupta, Counsel for applicant bank.

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Defendans are exparte since 06.01.2020

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FINAL ORDER

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This original application has been filed by the applicant bank, on 15.02.20L7 through Mr. Aman Deep Chugh, Area Manager (Legaland Compliance Support)Retail Lending and Payment- Collections & FCU Department of the applicant bank, under Section 19 of the RDB Act, 1993 against the defendants for recovery of a sum of Rs.38,13,035/- together with cost, charges and pendentellite and future interest @9.35olo tiom date of filing of this O.A. till.the realization in full.

OANO. 616 of 2024

The brief facts of the case are that at the request of the defendant no.1 & 2, the applicant^bank sanctioned a Home Loan Facility of Rs.42,80,000/-,^vide sanction letter dated 24.06.2014 for^purchasethe property bearing under construction bearing Unit No103, Tower-D, 10th Floor Whispering Heights,^Sec-88, Faridabad-121001, Haryana in the residential^project 'Whispering Heights' situated at Vasundhara Complex, Savana Colony, Sector-88, Faridabad,^Haryana to^be developed by the defendant^no. 5.^{The defendantnos.} 1 & 2 executed all necessary loaning documents^dated 28.06.2014. The defendant no.5 is the^immediate Builder developer executing/developing the^project itself and on behalf of defendant nos. 3 and^{4, with} whom the defendant nos. 1 & 2 entered^{into an} agreement for^purchasing the^{aforesaid property.The} defendant no.5 entered^{into Tripartite Agreement with} the defendant no. 1 & 2 and the^{applicant bank dated} 28.06.20t4 anC in terms of^{the same defendant no.5 is} jointly and severally liable along with the defendant no.1 & 2 to^pay the entire^{claim amount to the applicant} bank. It is submitted that^{pursuantto completion of all} the formalities and execution of^{necessary documents} and at requests of the defendant^{nos. 1 and 2, the} applicant bank^{has paid and disbursedthe loan amount} of Rs.36,78,43U- to^{the defendant no.5. The defendant} no.5 is the agent of defendant^{nos. 3 and 4. The} repayment of the Home^{Loanwas to be secured by way} of ci'eation of security^{by mortgage/equitable mortgage} of the subject^property to^{be purchasedby the} defendant nos.^{1 and 2. The defendant no.5 has issued} permission to mortgage the aforesaid^propefion 03.06.2014 signiffing^{charge/lieylfthe applicant bank}

OA NO. 616 of 2024

on the subject property and^{proportionate} share of land underneath.

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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. Therefore, the applicant bank served a legal notice/ recall notice dated 25.11.2016 and addendum notice 12.01.2017 to the defendants, demanding the amount due as on that date, but failed to recover the same. Thus, the present O.A./ T.A is^preferred by the applicant bank to recover its dues.

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On notice by this Tribunal, defendants failed to put appearance at all, despite publication. Accordingly, the defendants were^proceeded against exparte^on 06.01.2020.

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The applicant bank has filed^{its evidenceby way} of affidavit of Shri Aman^{Deep Chugh, Area Manager} (Legal and Compliance Support)- Retail Lending and Payment- Collections & FCU Department of^the applicant bank as Annexure^A-1 to^{Annexure A-16.}

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Heard the Ld. Counsel of applicant^bankand perused the records. From^perusal of the record, it^is clear that at the time of executing^{loan documentsthe} applicant bank has entered^{into a TripartiteAgreement} 1/\

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OA NO. 616 of 2024

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with the builder along with the borrowers. Para 4 and 6 of the Tripartite agreement is as follows:^-

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"4. It is agred by and futween the parties to this Agrement that in ase if the BORROWER fails to honour the commitmen| the developer/BUILDER shall inform the BANK and the BANK shall have the right to pay the Sale consideration and get it registerd either in BANK's name or its nominee. Likewise in the event the Eorrower defaulb in payment of installments then, in such an event alsq the Bank shall have the right to inform about such default on the part of the Borrower to the Builder and shall accordingly have the right to write to the Builder for cancellation of the Agrement exsutd betwen the Builder and the Borower, where afrer the Bank shall have the right to^pay the Sale consideration and get the subject^property rqisterd either in the Bankb name or in the name of the Bank's nomine.

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It is hereby speifically agred and confirmd by the parties to this agrement that in the event of default on the paft of the Bonower as mentioned in clause⁴ abovq the Bank shall in addition to the remdy available to the Bank, as is statd in^clause 4 afuve, also have legal right to demand from the^Builderthe interest due to the Bank from the Bonower by recovering the interest amount from the Borowerb margin money that was^paid by the^{Borrower in his/her} capacity as the customer of the^Builder at^{the time of} booking of the subject flat. The Builder agres^and confirms that the Builder shall not^{objectto the Bank's} course of action in recoveing the^{Bank's interestby} demanding from the Builder tbe^{margin money as}

s).

OA NO. 616 of 2024

stated hereinabove. Upon anysuch demand made by the Bank to the Builder, the Builder shall without any protest or demur pay to the Banlg the demanded amount from the margin amount^paid by the^Borrower in his/her capacity as the customer to the Builder."

¶38

As per conditions contained in the Tripartite Agreement dated 28.06.2014 at para no.4 and 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 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. 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 no.1 & 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 and has^got in^{returnnothing.} In such circumstances and aS^per agreed terms^and EJ..

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OA NO. 616 of 2024

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conditions it is only the builder who is liable to pay the defaulted amount to the applicant bank.

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In the light of the above discussions, the present T.A. deserues to be allowed against the defendant no. 5.

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ORDER

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I hereby allow this T.A. of the Applicant Bank and direct the defendant no. 5 to pay to the applicant bank within 30 days from today, a sum of Rs.38,13,035/along with cost, expenses and interest @ 9.35olo from the date of filing of this O.A. which has become TA till the date of realization.

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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 Unit No103, Tower-D, 10h Floor Whispering Heights, Sec-88, Faridabad-121001, Haryana. In case of shott fall, the same shall be recovered from the sale of^personal movable and immovable assets of the defendant no. 5.

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Recovery Certificate be issued fofthwith and^be sent to Recovery Officer, Debts Recovery Tribunal-Il, Delhi.

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The registry of this Tribunal is hereby directed to issue free copy of the order and send the same to both the^parties.

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OA NO. 616 of 2024 7 5) Parties are directed to appear before^{the Ld.} Recovery Officer, DRT-II, Delhion 28.10.2025.^Pending IAs, if any, stand disposed of.

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File be consigned to records.

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.-.-....-..-......-. <.\

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Date : 28.08.2025

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(SUSHIL KUMAR RASTOGI) PRESIDING OFFICER DRT-II, Delhi

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This^judgement has been signed, dated^and pronounced in open court.

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C."\

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Date : 28.08.2025

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( su sH r L KU MAR-RASToGI ) PRESIDING OFFICER DRT-II, Delhi

Axis Bank v. Ajay Kumar and Others

Case brief

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Axis Bank v. Ajay Kumar and Others

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