BEFORE THE HON’BLE DEBT RECOVERY TRIBUNAL –III, NEWDELHI

IN THE MATTER OF:

SYNDICATE BANK ….APPLICANT

VERSUS
RAM KUMAR SHARMA ….DEFENDANTS
&OTHERS

SL.NO PARTICULRS REMARKS

1 Total amount of debt as on 28.02.2018 Rs.78,00,496.99
2 Loan application dated 24/06/2016
3 Defendant no.4 issued to applicant bank
letter permission to create equitable .
mortgage Dated .01/07/2016
4 Bank processing dated 13.07.2016 Ex.AW.1/2
5 Original appraisal cum Sanction memo Ex.AW.1/3
issued by applicant Bank Dated
13.07.2016
6 Original Housing Loan Agreement dated:- Ex-AW1/4
02/06/2017
Tripartite Agreement dated:- 01/07/2016
7 Guarantee Agreement dated:-02/07/2017 Ex –AW1/5
8 Original Acknowledgement receipt of loan Ex-AW1/6
dated:-13/07/2016
9 Original Acknowledgement receipts of the Ex-AW1/7
D4-
10 Original Allotment letter issued by the D4 Ex-AW1/8
11 Computer generated copy of the Ex-AW1/9
statement of the loan A/c of D1&2
12 Original returned legal demand notice Ex-AW1/10
issued to d 1 to 3 dated 22/07/2017
10 The demand notice issued against D4 by Ex-AW1/11
notice dated 07/11/2017

1. Original Housing Loan Agreement

 As per the application dated 24.06.2016 received from the borrower
for a loan of Rs.7500000/,Bank has agreed to grant the borrower with
the interest rate of 9.55%,( which is in floating rate), and made an
Agreement between Syndicate Bank and the Defendant No.1 & 2,the
said agreement executed in Delhi on the date of 13th July 2016.
 As per the relevant Clause 17(1) of the Housing Loan
Agreement Reproduce below:-
17.1 that the payment, acknowledgement or undertaking made by
any one of them towards this loan shall be binding on all of them
jointly and severally and each of them constitute the other duly
authorized agent and the payment or acknowledgement or
 undertaking so made or given including payment by way of debit
to their SB/OD/Current Account and credit to this loan account, is
binding on them jointly and severally and be treated as an
acknowledgement for the purpose of limitation.

As per the Housing Loan agreement the Defendants are liable to

repay the entire amount jointly/severally, it is very clear from the
agreement which was executed between the Bank and the
Defendants, SECOND SCHEDULE(Repayment Schedule) of
Agreement shows the Liability towards the Defendants.

Similarly the Home Loan Agreement is exclusively between the

Applicant and defendant no.1, 2&3. It spells out the obligations of
the Applicant and defendant No.1,2 &3 respectively and it
stipulates the loan amount as Rs.75 lacs repayable in 241
months @ EMI of Rs.70504/-.

2. Tripartite Agreement
The Agreement has made between three parties;
 Syndicate Bank(Bank) …Applicant
 Mr.Ram kumar Sharma(Buyer) …Defendant No.1
 M/s.MKS Infratech …Defendant No.4
Pvt.Ltd(Builder)
Tripartite Agreement is an agreement in which rights and interest of 3
parties are involved. That the averments in the same are affecting all the
three parties in the said agreement.

The Agreement that clearly states the obligations and responsibilities of

all parties involved in the deal.

The relevant clauses of the tripartite Agreement.

 It would be useful to reproduce certain clauses of the agreement

 WHEREAS:
 CLAUSE(B) the Borrower have represented that the Builder is of
their choice and that they have satisfied themselves with regard
to integrity, capability for quality construction of the Builder and
the Builder's ability for timely completion and on time delivery of the
project;
 CLAUSE(E).SYNDICATE BANK has considered the said request with a
clear understanding and an irrevocable undertaking by the Borrowers
that subsequent to the disbursements as requested by the Borrowers
, there would be no repayment default for any reason whatsoever
 including but not limited to any concern/issues by and between the
Borrowers and the Builder/Developer;
 AND WHEREAS(F) the Borrowers have represented, and such
representation being a continuing representation, that Borrower's
obligation to repay the Loan shall be a distinct and independent
obligation more particularly independent of any issues/ concern /
dispute of whatsoever nature between the Borrower and
Builder;"
 ”A careful reading of the above clauses would show that it is the
borrower, who has chosen the builder and also satisfied himself
with regard to his ability for timely completion and delivery of
project.
 The agreement would also show that defendant no.1 was the
principal borrower and further after the amount had been
disbursed the borrower would be responsible for the repayment,
even if there were concerns or issues between the borrower and
the builder/developer.”
 As per the clause (F) itself says the liability of the defendant towards
the loan agreement is absolute in terms of loan agreement
and is not to be influenced by tripartite agreement or for that
matter any other agreement executed between the defendant and
the builder.
 Clause -4 of the Tripartite agreement as reproduce below:-
That irrespective of the stage of construction of the Project and
irrespective of the date of handing over possession of the Flat to the
Borrowers by the builder, the Borrowers shall be to pay to SYNDICATE
BANK regularly each month, the Pre-EMIs/EMIs as laid down in the
Loan Agreement signed by and between SYNDICATE BANK and the
Borrowers. The borrowers shall execute and such other documents as
may be required by SYNDICATE BANK in favor of SYNDICATE BANK in
this regard.
 Clause -5 of the Tripartite agreement as reproduce below:-
If the borrowers desire to withdraw and/or in case death of
Borrowers and/or if Borrowers fail to pay the balance amount
representing the difference between the loan sanctioned by
SYNDICATE BANK and the actual purchase price of the Flat, the entire
principal amount advanced by the SYNDICATE BANK will be refunded
by the builder to SYNDICATE BANK forthwith.

 Clause -7 of the Tripartite agreement as reproduce below:-

Further, the Builder, in the event of default of repayment of loan by
the Borrowers, shall on written intimation/ instructions of SYNDICATE
 BANK cancel the allotment of the Flat of the Borrowers and refund,
the entire principal amount advanced/funded by SYNDICATE BANKS
directly to SYNDICATE BANK and the Builder shall have right to
recover/forfeit the earnest money deposited by the borrower.
 Clause -12 of the Tripartite agreement as reproduce below:-
The builder will not transfer the said Flat to any other member or
other person without obtaining the previous written consent/NOC
from SYNDICATE BANK.
 Clause -13 of the Tripartite agreement as reproduce below:-
That notwithstanding anything contained or entered into between
the Builder and Borrower in any agreement of document or any
clause contained therein and not forming part of this agreement, this
agreement , shall have an overriding effect.

 Clause -15 of the Tripartite agreement as reproduce below:-

The courts at New Delhi shall have exclusive jurisdiction over any
matter /dispute arising out of this Agreement.

Hence a conjoint reading of above clauses of Tripartite Agreement clearly

shows that it was at the request of Defendant No.1 that the Applicant has
given a loan of Rs.75 lacs. There is an unconditional undertaking given by
defendant No.1&2 that there would be no repayment default for any
reason whatsoever including any issue between defendants and Builder.

3. Guarantee Agreement dated:-02/07/2017

 The GURANTEE AGREEMENT executed by Satyajit Bhuyan
 Clause -16(1) of the Housing Loan Agreement as reproduce below:-
If any money payable by the Borrower falls due and the same remains
unpaid the Bank will be entitled to recover the same from the Surety
notwithstanding the remedies the Bank may have against the
Borrower.
 Clause -16(3):-If the guarantee obligation hereby undertaken by him
becomes inoperative or unenforceable for any reason whatsoever the
amounts due under these presents shall be paid by the surety as
principal debtor and the Bank shall be at liberty to recover the same
accordingly.

 A guarantor guarantees to pay a borrower's debt in the event

the borrower defaults on a loan obligation.
 The guarantor guarantees a loan by putting up their assets as
collateral.
 Unlike a co-signer, a guarantor has no claim to the asset
purchased by the borrower under the loan agreement and only
guarantees payment of the loan.