• Builder unwilling to pay the mortgage property loan

Plse advice how can i avoid any legal complication . builder make sale deed of flat to us . and now he refused to pay the morge loan of people co-operative bank.
Asked 7 years ago in Property Law
Religion: Hindu

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8 Answers

1. Your query is not clear of details of which loan the builder is refusing to pay.

2. In general you being the consumer of the developer can file case in consumer forum against any act of the developer which the developer is bound to do.

3. So meet a lawyer and do the needful as stated above.

Devajyoti Barman
Advocate, Kolkata
22917 Answers
497 Consultations

5.0 on 5.0

1) what were the terms of mortgage loan signed by builder with the bank ?

2) issue legal notice to builder to pay the mortgage loan to bank

3) if he fails to pay file police complaint against him for cheating , criminal breach of trust under section 406, 420 of IPC

4) also file complaint before consumer forum and seek orders to direct builder to pay off the loan or refund your money with interest

Ajay Sethi
Advocate, Mumbai
95168 Answers
7604 Consultations

5.0 on 5.0

1) you are required to do due diligence before purchase of flat

2) merely because housing finance company did not find any charge against property does not absolve you of your responsibility in doing due diligence

3) file police complaint against builder and move consumer forum against builder as advised earlier

Ajay Sethi
Advocate, Mumbai
95168 Answers
7604 Consultations

5.0 on 5.0

1. The builder was not legally authorised to sell the flats which were mortgaged with co-operative bank.

2. Since his sale of the already mortgaged flats to you are illegal, the co-operative bank may take possession of the said mortgaged flats to sell off the same to recover ts dues standing in the name of the builder.

3. Ask the builder to pay of the dues of the co-operative Bank and if he does not, all of you should file a complaint case before the local District Consumer Dispute Redressal Forum alleging deficiency in service and unfair business practice claiming refund of the entire amount taken by the builder with interest, damage and cost.

4. You all can also lodge a police complaint against the builder for cheating and defrauding you.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. The primary responsibility and liability to conduct search before purchasing the flat lies with you.

2. You can not pass on your responsibility of getting the property searched to the LIC for lending you the amount without conducting the search.

3. Act as advised above immediately in your own interest.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

Plse advice how can i avoid any legal complication . builder make sale deed of flat to us . and now he refused to pay the morge loan of people co-operative bank.

The builder is responsible for repaying the loan which he borrowed from bank by mortgaging the property, though you have got a registered sale deed for the property you have purchased.

The bank would initiate recovery suit against the builder and you would be impleaded as party to suit.

You have to defend your interest in the property based on the title documents on your name as well other documentary evidences and merits in your side.

T Kalaiselvan
Advocate, Vellore
85369 Answers
2231 Consultations

5.0 on 5.0

Instances abound where builders have pledged the entire property with banks to raise huge sums, only to disappear, leaving behind unfinished projects.

However this mortgage loan would be on an unregistered deed hence it escaped the entry in the encumbrance certificate and you or the LIC Housing finance could not find an adverse report to this effect in their search report.

The banks of buyers are then unable to trace the loan taken by the builder with the first bank. As a result, buyers do not get the apartment registered in their name unless the builder clears his dues and the property is released from the first bank.

Equitable mortgage is an easy method of obtaining a loan, but it has many loopholes that can be used to mislead banking institutions. The main disadvantage of equitable mortgage is that any charge created on the property due to equitable mortgage is not known to the public.

The banks that have offered loans to buyers are also left in the lurch as they are unable to get a hold on the property.

Loans have become more accessible these days as banks are facilitating equitable mortgage, wherein you can pledge your property documents with the bank and avail a loan. However, there are many bitter truths associated with equitable mortgage. It has a loophole that allows fraudsters to take multiple loans with the same property.

An agency known as the CERSAI (Central Registry of Securitisation Asset Reconstruction and Security Interest of India) has been in place from March 31, 2011.

The Centre has made it compulsory for all banks, NBFCs and HFCs to register all their mortgage details with CERSAI, within 30 days of the mortgage. Whether this is being actually implemented in letter is a moot point.

On the downside, for loans taken before this initiative, the banks are not bound to share the mortgage details with CERSAI. The compulsory sharing of mortgage details is applicable to all loans facilitated after March 31, 2011.

The mortgage database is made public by CRESAI and you can verify the records of any property by visiting the CRESAI public search portal.

The formulation of the SARFAESI Act has meant that no one can take multiple loans on the same property.

T Kalaiselvan
Advocate, Vellore
85369 Answers
2231 Consultations

5.0 on 5.0

1. The builder has committed the offences of cheating and criminal breach of trust under sections 406 and 420 IPC for which he is liable to be prosecuted. So file a criminal complaint against him in the court of competent magistrate.

2. You failed to conduct your own due diligence before the purchase of property. The only remedy available under the civil law is to file a suit for declaration of the sale deed as illegal and to seek recovery of the amount paid to the builder with compensation.

3. Issue a lawyer's notice immediately to the builder.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

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