I bought one plot in bank auction, after registration when I went for mutation I came to know that borrower already sold that plot 3years before the auction and done mutation for that. Tehsildar is refusing to transfer the plot in my name as it belongs to someone else. Now bank people are not helping me for anything. What should I do now, I got papers only after paying all my money? Plz give me proper advise
Dear Concerned,
This is a clear case of cheating by Bank and a criminal case for cheating can be filed on bank through 156(3), additionally a Recovery case can also be filed. It has not been mentioned - who has the possession of the property?
For a detailed discussion please feel free to contact us for free consulting on subject.
1) issue legal notice to bank to refund your money with interest as plot has already been sold by borrower to third party prior to auction
2) did you not take search in sub registrar office before purchase of land
3) I presume plot has not been sold to you on as is where is basis
4) bank will have to take legal proceedings to set aside sale by borrower as it has been done contrary to terms of loan agreement with borrower
5) file writ in HC against bank for refund of your money
1. Find out from the registration office when the said sale deed was registered by the Borrower. Was it after creating mortgage on the said property with the lending Bank or before that?
2. If the said property was sold after mortgaging the same with the Bank, then the said sale is illegal since mortgaged property can ot be dealt with by the mortgagor without the written consent of the mortgagee.
3. In the above case, write to the Tehshilder that the said sale and subsequent mutation is illegal.
4. If the property was sold before creating mortgage, lodge a complaint against the lending Branch of the Bank to its higher officers including Ombudsman seek return of your money paid with interest , damage and cost.
5.If Bank refuses to act as above, file a Writ Petition against the Bank (if it is a PSU Bank) aainst its inaction seeking relief.
you should file a case against the bank, in DRT.
bank is bound to get clearance from the DRT before auction of defaulter's property.
you can also file a criminal case for the offence of cheating under section 420 IPC against the bank because bank has auctioned this property without taking clearance from the DRT. under the SARFAESI act it is mandatory to get such clearance and order of the DRT.
A few point to clear, property was mortgaged in 2009 after that owner sold the same in 2012 to some other person. I have collected a copy of that sale deed from registrar office. The auction was under SARFAESI so bank sold it to me under as is where is basis. The authorised officer went with me and I got registered in my name in 2015. But Tehsildar is refusing for mutation because owner is someone else and I did not buy from him. I do not have possession it is a vacant plot. Before bidding I enquired with lekhpal verbally that time he said that plot is in borrower's name. Well later he said account was not updated so he missed.
property has been sold to you on as is where is basis
2) you ougfht to have exercise due diligence before purchase of property
3) property has already been regsitered in your name
4) you have to file suit to set aside sale made by borrower in favour of third party make bank party to said suit
when a mortgages property is sold out the conditions are arised
first: if buyer was known about the fact that property is mortgages then he is liable to discharge mortgage. it is bank's liability to initiate proceeding against the buyer because deed of the property is under the custody of mortgagee i.e bank. it is bank's fault.
second: if buyer was unknown and paid consideration to the seller then seller is liable to discharge mortgage.
in both condition bank is responsible to clear the property before its auction.
1. Take physical possession of the said property by taking a certificate from the Authorised Officer of the Bank stating that he is giving you possession of the sold propery and that you have taken possession of the same.
2. After that send a letter to the Tehshilder attaching the copies of the mortgage letter and also the copy of the registered sale deed which was registered after creation of the mortgage asking him to mutate your name in the records as the owner of the property.
3. if he still refuses to mutate your name, you can file a Writ Petition before the High Court praying for a direction upon the Tehshilder to mutate your name as the title holder of the said property.
4. You can also register the said sale certificate issued by the Bank to keep the records straight in the Registrar's office.
If you have bought the property through bank in an auction and the revenue department is not entertaining the mutation of records, then you may issue a legal notice to bank for having sold the property which was already sold to a third person before they sold the same to you, hence to refund the amount or to help you mutate the property to your name, copy of this may be endorsed to the revenue department.
After that you may proceed legally to retrieve the property title or for recovery of your amount.
The bank is at fault to not check the details of the property under mortgage.
They have not registered the mortgage nor the registered the memorandum of title deeds.
The sufferer and loser is you but it is your fault that without obtaining a legal opinion, you have went for bidding the auction.
Do you have the original title deed with you?
You can consult a local lawyer to proceed agaisnt the bank in this regard as per provisions of law.