• Property attachment of agriculturalist

I have given 10.30 Lacs Loan at 24% interest to my uncle 2.9 years back and he gave me promissory note.  So far he has paid just 50k.  This PN is going to expire in 3 months.  He refuses to renew the PN and refuses to pay me interest and reluctantly says that he may pay the principal alone in several installments over few years, provided he gets profit in farming.  My uncle is an agriculturist, lives in Tamilnadu and he owns a new house(ground and first floor) and agricultural land (1.7 acre) worth 33 Lacs.

1. I'm an individual without money lending licence, does court allows 24% interest?

2. My relatives have been asking him to return money for past few months.  Meanwhile I made a police complaint on 05-Dec-16  after which he made Dhana settlement to family members to her daughter on 12-Dec-16 for the agri land of 1.7 acres.  

Now the remaining asset is his house and another small agricultural land of 0.43 acres.  My uncle threatens me that if I go to court he will declare pauper by either selling his asset or dhana settlement to family members before decree is issued by court or even he may do so after I issue legal notice to him.

3. I approached a civil lawyer, he says that your uncle is an agriculturist, so it is NOT possible to get an injunction court order, restricting the sale of his house and agricultural land till the case ends.  Also, even after getting the decree, his house and his agricultural land cannot be attached during EP-execution petition for auction sale.  So, it is not possible to recover the money through court.  If you had issued loan against his property(mortgage loan) and registered in registrar office, then only you can recover money by auction.

http://kruschlaw.blogspot.com/2014/06/attachment-of-immovable-properties-in.html

Below content is taken from above website:

Attachment of Immovable Properties as per Rule 54 of Order 21 of the Code of Civil Procedure 1908, states:-
Sec :-60. Property liable to attachment and sale in execution of decree.--
Provided that the following particulars shall NOT be liable to such attachment or sale, namely:-- 
(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belong­ing to [an agriculturist or a labourer or a domestic servant] and occupied by him;

My financial condition has worsened in the recent years, Now I'm in need of money badly.

Is it true that the house and agricultural land of an agriculturalist(debtor) is not liable for attachment or sale?

what happens if he sells his asset after I issue legal notice to him?

Please help.
Asked 8 months ago in Civil Law from chennai, Tamil Nadu
under section 60 Clause (c)-

Under this clause, the main residential building and all the other building attached to it, belonging to agriculturist, labourer or a domestic servants, are exempted from sale and attachment in execution of a decree

2) For the application of this clause an agriculturist includes a small holder who tills the soil and cultivates it .  The term includes a person who personally engages himself in tilling the soil and whose livelihood depends upon the proceeds derived from the tillage of land

3) Supreme Court in Appasaheb. V. Bhalchandra and it was held that before a person could claim to be an agriculturist “he must at least show that he was really dependant for his living on tilling the soil and was unable to maintain himself other -wise.” Thus the true test is whether a man personally engages in tilling and whether this occupation is essential to his maintenance. It was accordingly held that a person who had a substantial income from lands other than those cultivated by him as home farms and also cash allowances was not an agriculturist and that a building constructed by him was not exempted from attachment.

4) you can file suit for recovery of money against uncle . 

5)  court would award you interest as per agreement 

6)it is not necessary to have money lender licence if you are not engaged in business of money lending . for mere  one  isolated transaction with relative yopu dont need a money lender licence 
Ajay Sethi
Advocate, Mumbai
33773 Answers
1868 Consultations

5.0 on 5.0

1. I'm an individual without money lending licence, does court allows 24% interest?

You have to show the source of income when the question arises.  Interest @ 24% p.a. is not exorbitant. The promissory note will not expire, since the borrower had repaid some amount in the recent past, thus it gets renewed automatically on the date of last transaction. 





2. My relatives have been asking him to return money for past few months.  Meanwhile I made a police complaint on 05-Dec-16  after which he made Dhana settlement to family members to her daughter on 12-Dec-16 for the agri land of 1.7 acres.

You have made a mistake by lodging a criminal complaint with police about this.
The police will not recover the amount from him.
At the maximum  they can file a cheating case an get him punished but that will ot help you to recover the amount.
Instead you should have filed the money recovery suit agaisnt him and should have sought for attachment of his property before judgment as security for your loan amount. 






3. I approached a civil lawyer, he says that your uncle is an agriculturist, so it is NOT possible to get an injunction court order, restricting the sale of his house and agricultural land till the case ends.Also, even after getting the decree, his house and his agricultural land cannot be attached during EP-execution petition for auction sale.  So, it is not possible to recover the money through court.  If you had issued loan against his property(mortgage loan) and registered in registrar office, then only you can recover money by auction.

The lawyer has partially misguided or misinformed you.  He is partly correct tht the agricultural land cannot b attached by bank but it can b attached for the purpose of security if the court passes an order to that effect. Further the house property can very well be attached even though your uncle is a farmer.
Mortgage loan is different to the money recovery suit and seeking attachment of property before judgment.  The house property will not come under the category of agricultural property for  claiming any exemption thereon. 


You canot stop him from selling or transferring his property after he receives legal demand notice. 
You have to file an EP after getting a decree in your favor, but how far it will be effective is to be seen when the circumstance arise.




T Kalaiselvan
Advocate, Vellore
23756 Answers
235 Consultations

5.0 on 5.0

1. You can filemoney suit to recover the money but you will get only principal amount and not interest.
2. File case any way as declaring one as pauper is not so easy.
3. Agricultural land can also be attached but in certain conditions. Moreover of he has a house that can also be attached. So file the case anyway.
4.Fie criminal case of cheating to put pressure to give your money back.
Devajyoti Barman
Advocate, Kolkata
8943 Answers
108 Consultations

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File suit to set aside fraudulent transfer of property in favour of daughter 

1[53. Fraudulent transfer.—
(1) Every transfer of immoveable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration. Nothing in this sub-section shall affect any law for the time being in force relating to insolvency. A suit instituted by a creditor (which term includes a decree-holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor shall be instituted on behalf of, or for the benefit of, all the creditors.
(2) Every transfer of immoveable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee. For the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.]
Ajay Sethi
Advocate, Mumbai
33773 Answers
1868 Consultations

5.0 on 5.0

Is there a way to file a case against him to cancel this gift settlement and to attach his properties before judgement for 
my suit claim amount?

The gift deed cannot be revoked for such reasons, section 126 of transfer of property act states that only for two reason that a gift deed can be revoked, one is  revocation by mutual consent and the other is  revocation by rescission as in the case of contracts. 
Hence you cannot seek a property for ABJ when there is o such property available. 








He made this settlement to avoid the property attachment.  Please note that this settlement was made before legal notice 
was sent to him and after my relatives put pressure on him.  My relatives can provide a letter and can witness this in court.

No provision in law to get this property attached. 




Also, in the first loan, following line was included - "if my uncle and his son are not able to return the money, they will sell their asset and pay off my loan"

The promises are made to be broken.

You cannot do anything about the property which has been transferred by a gift settlement deed to his daughter.
You have to file a money recovery suit alone. 





 
T Kalaiselvan
Advocate, Vellore
23756 Answers
235 Consultations

5.0 on 5.0

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