IL & FS Trust Company Ltd & Ors v. Divij Infra Projects Pvt Ltd & Ors

1. On 11.3.2015, the defendants were proceeded exparte. The plaintiffs' evidence has been recorded thereafter. Even today, none appears for the defendants. The case is taken up for final hearing.

2. The plaintiffs seek a decree for sale of the mortgaged suit property, i.e., the entire ground floor having covered area of approximately 1000 sq. ft. along with proportionate undivided, indivisible and impartible freehold ownership rights in the plot of land measuring 130 sq. yds. bearing No.D- 1/25, situated at Hauz Khas Enclave, New Delhi-110016 with all rights in common stilt, driveway, entrance, passage, staircase, pathways and other common services and ground floor plus proportionate stilt in a residential building standing on a freehold plot of land admeasuring 108 sq. yds. at D- 1/25, Hauz Khas, New Delhi-110016 towards the amount of Rs. 1,93,47,675/- that is due and payable to the plaintiffs along with interest at CS(OS) 2228/2014 Page[1] of[4] 2015:DHC:11886 •..a the rate of 19% p.a. from 1.3.2014 and penal interest at the rate of 2% from 1.3.2014 till the date ofrealization of sale proceeds.

3. The plaintiffs have led evidence through their authorised signatory, Ms. Neelu Subrammanian, Associate Vice President (PWl). She has deposed in accordance with the averments in this plaint. It is the plaintiffs' case that the aforesaid suit property was mortgaged with PlaintiffNo. 1 for a loan of Rs. 1,75,00,000/- on 19.9.2013 and through a tripartite agreement, the loan amount was realised to defendant No.l by PlaintiffNo.2. There has been default in repayment of the loan amount, despite the issuance of requisite notices to the defendants. Till date, the defendants have chosen not to appear in the present suit. The plaintiffs' evidence would show that PW- 1 has been authorized to depose through a Board Resolution of the plaintiff No.l and the document has been marked as Ex.PW-1/1; the loan agreement has been marked as Ex. PW-1/3; the tripartite agreement has been marked as Ex. PW-1/4. The agreement dated 19.9.2013, entered into between defendant No.l with the plaintiffs, is marked as Ex. PW-1/5. The indenture ofmortgage was registered before the Sub-Registrar, Hauz Khas, New Delhi on 20.9.2013 and the same has been marked as Ex. PW-1/6. The valuation report apropos the mortgaged property has been marked as Ex. PW-1/7. Clause-17 ofthe Indenture ofMortgage provides as under: "17.[1] Provided always and it is hereby agreed and declared as follows: Upon the occurrence ofan Event ofDefault, it shall be lawfulfor the Security Trustee after receipt ofprior written instructionsfrom the Lender as per the Financing Documents without any further Consent of the Mortgagor, to sell, assign, transfer, charge or concur with any person in selling, assigning, charging or transferring the mortgaged property and any future assets CS(OS) 2228/2014 Page 2of[4] W comprised under the present security or any part thereofeither by public auction or private contract, including the buildings and structures or separately therefrom with liberty to make any arrangements as to removal of the fixtures, fittings and other implements from the land, building and structures and with liberty also to make such conditions or stipulations regarding title or evidence oftitle or other matters as the Security Trustee may deem proper, with power to buy or obtain assignment of the mortgaged property at any sale and to resell or reassign the mortgaged property at any sale by auction or to rescind or vary any contract for sale and to resell or reassign the mortgaged property without being answerable or accountable for any loss or diminution occasioned thereby and with power also to execute assurances and give effectual receipts for the purchase money and do all acts and things for completing the sale/assignment which the person or persons exercising the power ofsale/assignment shall thinkproper, and the aforesaidpower shall be deemed to be a power to sell and concur in selling the mortgagedproperty without the intervention of the Court within the meaning of Section 69 of the Transfer of Property Act, 1882."

4. Defendant No.l further executed a corporate guarantee in favour of plaintiff No.l, and a personal guarantee was issued by defendant No.2. These have been marked as Ex. PW-1/9 and PW-1/10 respectively. The personal guarantee ofdefendantNo.4 has been marked as Ex. PW-1/11. Due ♦ to continued default in re-payment of the loan due, the defendants were repeatedly called upon to pay up the due amounts includingthe instalments. The notice of default dated 26.7.2013 along with the proof of delivery report has been marked as Ex. PW-1/4 (Colly). The acknowledgment of debt by defendant No.3 has been marked as Ex. PW-1/15. It is averred that cheques issued by defendants for repayment of the loan amounts had been dishonoured, hence legal notices were issued to the defendants under the Negotiable Instruments Act, 1881, which are marked as Ex. PW-1/18. Since CS(OS) 2228/2014 Page 3of[4] the defendants have failed to pay the amounts due to the plaintiffs, the mortgage clause is sought to be invoked for the sale of the suit property to recover the dues from the defendants. Similar affidavit in evidence has been filed on behalf of plaintiff No.2 in support of the plaint. Since there is no appearance on behalf of the defendants, the claim of the plaintiffs is unrebutted and uncontested. There is no reason why the relief sought in the suit should not be granted.

5. In the circumstances, the suit is decreed in favour ofthe plaintiffto: (a) Sell the mortgaged property being the entire ground floor having covered area of approximately 1000 sq. ft. along with proportionate undivided, indivisible and impartible freehold ownership rights in the plot of land measuring 130 sq. yds. bearing No.D-1/25, situated at Hauz Khas Enclave, New Delhi-110016 with all rights in common stilt, driveway, entrance, passage, staircase, pathways and other common services and ground floor plus proportionate stilt in a residential building standing on a freehold plot of land admeasuring 108 sq. yds. at D-1/25, Hauz Khas, New Delhi-110016 towards the amount of Rs. 1,93,47,675/- that is due and payable to the plaintiffs along with interest at the rate of 16% p.a. from 1.3.2014 and till the date ofrealization of sale proceeds. (b)if the net proceeds of the sale of the mortgaged property are found to be insufficient, the defendants shall be jointly and severally for the balance amount along with interest at the rate of 16% pa. from the date of realization of sale proceeds till the date of actual payment of the balance amount. (c)In addition to reimbursement of the Court fees through set-off from the sale consideration a cost of Rs.[2] lacs is awarded for the litigation -in favour ofthe plaintiffs and against the defendants.

6. The suit is disposed off in the above terms. NAJMIWAZIRI, J