• Purchase of flat

I purchased a flat and have the sale deed registered. I have taken possession of the flat.The apartment complex has 56 flats and 45 flats have been sold.The project has been financed by a PSU bank.The promoter has among other properties given the project site as collateral and the MOTD hs been registered. Neither the bank nor the promoter has informed me about this and the bank has not displayed its interest in the premises too. The loan account has now become an NPA and the bank is likely to initiate action. There are 13 unsold flats in the complex.There is no conveyance of project site .The undivided share of all the flat owners have been registered.In the even tof the promoters loan account becoming NPA will the banker have exercise his right on my property for recovery. The same bank has financed for many flat owners in the complex. Please clarify
Asked 4 years ago in Property Law
Religion: Hindu

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15 Answers

1) banker will seek to recover its dues from the 13 unsold flats

2)the bank will not attach your flat for recovery of dues as the flat has been sold with bank consent . the money from sale of your flat must have been used to repay part of bank loan

Ajay Sethi
Advocate, Mumbai
87212 Answers
6048 Consultations

5.0 on 5.0

generally in case wherein builder avails bank loan sale proceeds of sale of flat are used in repayment of part of bank loan

2) it appears in your case that builder has sold flat without bank consent

3)builder has not used sale proceeds in part repayment of loan

4) bank will seek to attach your flat for recovery of its dues

5) your defense should be that you are bona fide purchaser of value

Ajay Sethi
Advocate, Mumbai
87212 Answers
6048 Consultations

5.0 on 5.0

Probably at the time when this flat was being sold to you, the builder's bank issued a NOC to your financer/builder granting permission for sale of flat to you. That's because without this NOC, the sale deed could not have been registered in your favor.

So, pls check with the builder's bank to find out if this NOC was issued in the favor of the builder granting him the permission to sell this property to you.

As long as this was done, the builder's bank can't proceed against you for recovery of loan amount defaulted by the builder.

Vibhanshu Srivastava
Advocate, New Delhi
9422 Answers
235 Consultations

5.0 on 5.0

Hi, in such a situation if the bank files any litigation over the builder , you can become the party to the Suit .. In such cases , bank can take over only the builder share and sell it futher to recover the money ..

Hemant Chaudhary
Advocate, Gurgaon
4617 Answers
65 Consultations

4.9 on 5.0

Dear Client.

In the present case, if there`s no mention(in allotment letter) or intimation by the builder that the aforesaid property is under mortgage, Builder has indeed cheated you, Remedy available to you to file criminal case of cheating u/s 420, 406 IPC . Since the property was under mortgage to bank, it could not have been transfer till loan amount paid by the builder n NOC from bank, hence the sale deed is also questionable. Bank has absolute right to recover its dues from the property. Remedy available, if you have knowledge of other properties of builder and clean from any loan/ mortgage, than you can resort remedy through court, ( not confirm but tentative) that loan amount may be recover from his other properties.

There`s a Legal Maxim - Caveat Emptor - Buyer Beware - So it was your responsibility to check before buying the property if there`s any incumbrance on the property.

Also date of sale deed and mortgage deed ( Bank - Builder) is important - if your first buyer than you are true owner & bank cannot proceed Against your property & if you have taken loan from same bank, than it was bank responsibility to inform you about the existed mortgage, in this case, injunction may be grated in your favor against bank.

Either file a civil suit against recovery or if notices u/s 13(4) issued by the bank than approach DTR.

intact cheated you. Since you are in possession of flat and as sale deed has also been executed in your favour hence you are in better position being bonafide purchaser but Bank will proceed in terms of mortgage so initiate police complaint against builder who only can resolve the issue so exert the pressure and resolve the issue.

Yogendra Singh Rajawat
Advocate, Jaipur
21482 Answers
31 Consultations

4.4 on 5.0

Hello,

Since the flat has been sold with the consent of the bank therefore your property will not be attached.

If however the builder has not informed the ban while selling the property and has cheated you then you can file complaint under section 406 and 420 against the builder.

Anilesh Tewari
Advocate, New Delhi
17923 Answers
367 Consultations

5.0 on 5.0

In your case sale proceeds have not been used by the builder to clear the dues,, if any case is filed you will have to take the defense that you were the bonafide purchaser of the land.

Regards

Anilesh Tewari
Advocate, New Delhi
17923 Answers
367 Consultations

5.0 on 5.0

Hi

Ur property cannot be attached for recovery of loan

Bank will attached the property still lying in the name of builder

Harsh Kumar Sachdeva
Advocate, Delhi
38 Answers
3 Consultations

4.3 on 5.0

Since Tripartite agreement is not executed whereby Banker should have been a confirming party, the Bankers will move for attachment on your flat too. You can defend yourself on the grounds of being a bonafide purchaser of the Flat. Since the Builder has cheated the bonafide purchasers of flats, the resident association may initiate joint criminal proceeding against builder.

Pranav Khatkul
Advocate, Mumbai
1 Answer
1 Consultation

4.0 on 5.0

Since there are 13 more flats to be sold, the bank will take possession of all those 11 flats to recover its dues.

The amount you paid through bank loan would have been adjusted by the bank towards the amount due from the builder hence in my opinion yor flat is safe and secured.

T Kalaiselvan
Advocate, Vellore
77366 Answers
1458 Consultations

5.0 on 5.0

I have registered both documents namely construction agreement and sale deed for UDS.

Have you taken possession, however the registered documents in your name shall be sufficient evidence that you are the owner of the same.

However please be aware that the sale agreement is not the title document, hence you have to vigilant on this.

T Kalaiselvan
Advocate, Vellore
77366 Answers
1458 Consultations

5.0 on 5.0

I have not availed any loan from any bank. The contention of lending banker is no tri party agreement signed. In my case I purchased the flat from the promoter directly without availing any loan. I paid through proper banking channel and no cash transaction took place. What is the position legally of my flat

In the event of the bank issuing a legal notice under sarfesi act, you may first obtain a stay against the bank on the basis of the transactions you have made towards the payment of sale consideration amount.

If the builder has not made payment to the bank in respect of the flat allotted to you even after receiving the amount from you then you may defend as a bonafide purchaser on the basis of evidence of payment made towards the purchase.

You may even lodge a complaint against the builder for his act of cheating.

T Kalaiselvan
Advocate, Vellore
77366 Answers
1458 Consultations

5.0 on 5.0

1. The land along with all the future flats to be constructed thereupon have been mortgaged with the bank before he said flats were sold to you.

2. As per law, mortgaged propeties can not be sold or dealt with in any manner with out he written consent of he mortgagee.

3. So, technically your sale deed is invalid in the eyes of law.

4. The bank can initiate SARFAESI Proceedings for recovery of its debts by selling the mortgaged properties including your flat.

5. However, the fact that the same Bank has lent housing loan to the buyers of those mortgaged flats is an excellent ground for approaching DRT for relief in case the bank initiates recovery proceeding by taking over physical possession of those flat u/s 14 of SARFAESI Act.

Krishna Kishore Ganguly
Advocate, Kolkata
26470 Answers
726 Consultations

5.0 on 5.0

1. You should have verified before purchasing the said flat whether the developer has mortgaged the concerned land or not by seeing the original tithe deed of he land.

2. A property already mortgaged can not be sold as has been explained in my earlier post.

3. However, it will be difficult for the bank to explain why have they provided loan for buying the fats which have already been mortgaged with the said bank.

Krishna Kishore Ganguly
Advocate, Kolkata
26470 Answers
726 Consultations

5.0 on 5.0

1. Legally the bank can claim possession of your flat or selling of and recover its outstanding dues standing in the name o the developer.

2. You have a good chance to negate bank's claim on the ground that knowing very well hat those flats stands mortgaged, hey have further mortgaged those flats while providing loans to their buyer.

3. You can argue that the bank very well knew that those mortgaged fkats ere being sold for which they had no objection since they themselves provided loans for buying those flats by further mortgaging them.

Krishna Kishore Ganguly
Advocate, Kolkata
26470 Answers
726 Consultations

5.0 on 5.0

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