My Dear Lawyer Friends, I am into a very critical issue and need your advice. I have taken a loan of a property in Faridabad in Feb 2016. The builder promised to pay the EMI till possession (I do not have any documentation supporting it) and they have made the payment for the initial 6 months in my bank account. After that, they have suddenly stopped making the payment and stopped picking our phone. They have also shifted their office address without intimation and placed bodyguards to avoid unwanted visitors. They have also stopped further development completely. Only the structure of building towers was there and nothing else. Me and my wife visited the bank (large PSU bank) and asked for advice as we were unable to pay the EMI and was adviced that there have been multiple such cases for the same project and hence give us in writing and we will take action against the builder. Everything went cool for few months then at the time of financial year ending 2017 I started getting calls from the bank to at least pay the 1 EMI so that they can show something in the financial year end, which we did. But from June 2017 onwards things started getting worse from the bank. In the meantime fed up with daily bugging from the bank we visited HUDA Faridabad office and to our dismay found the license of the builder for that property got expired in April 2015 and was never renewed. Adding to it the builder is absconding and most probably is outside country. Plus The rating agency CRISIL has already declared the builder as bankrupt in the year 2013. I wrote everything to the bank a few months back and asked for an explanation and nothing came back from them. Even when someone from the bank called we forwarded the email and asked for an explanation. That person stops calling and after 1 month or so his senior used to call and the same process repeated. Recently we received multiple calls and they are asking us to pay the interest accumulated so far so that the account can be moved out of NPA (account turned NPA on Apr 2017). When we are asking for the email to be replied then they are saying that they agree that there were mistakes committed by the bank but the payment needs to be made else they will file a case against us. When I asked what type of case then they are saying that the property is not in a state to be sold out and recover hence they will recover from us. Please suggest what needs to be done where there is no future in the project and there was clear indication that bank also committed a mistake by disbursing loan without verifying all the documents of the builder.
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1)it appears bank has not done due diligence
2) if builder did not have licence bank ought not have sanctioned loan
3) since builder has failed to make payment bank would sue you to recover the loan amount with interest
4) make counter claim against bank for loss suffered by you on account of bank failure to do due diligence while sanctioning loan
Dear Concerned.
This seems to be a case of Subvention Scheme Fraud. There have been many thousands of customers that have been cheated by the developers. In such and present circumstances where the developer is on the run, you should prepare your self for a legal battle.
You should pursue by filing a criminal complaint of cheating against the developer company - even though nothing would be done on the same but make the Bank branch / executive which disbursed the loan party to the case.
As it seems you would have not pledged any other asset against such home loan the developer can not claim rights on any of your property - however to are free to file case under SARFESI and RDDBFI Act after the Loan has been declared an NPA.
Filing an FIR for cheating against the developer and making the bank a part to the case will help you in your case at the tribunal.
for a detailed understanding on subject please feel free to contact us.
Best of luck
You must lodge a FIR against this builder who's responsible for defrauding and cheating you. This is first exercise you must do.
Once the Bank again bugs you, you must reproduce this FIR before the Bank and apprise them of the fact that the matter has already been reported to the Police. The sum and substance of the matter is that the Bank will ultimately auction the hypothecated flat/land and recover it's dues.
you remain sat tight over the matter with your version.
you must not deny to pay the bank but don't pay unless and until the bank authority give you the demand in writing.
The agreement was between the bank, builder and you.The bank will pay directly to the builder and the builder will pay EMI till possession handed over to you.
Hence the default in repayment of EMI will be attributable to builder only, you can claim exemption from any action on this based on this subvention agreement.
The bank may proceed to initiate action under sarfesi aft on the property mortgaged wit them
You dont commit the repayment in writing and dont disclose your assets if you have any to the bank, let the bank initiate any action on their own which can be challenged because you cannot be held liable for a third party fraud in this connection.
If you probe deeply into it, you may find some bank officials also involved in this scam.
You may take a personal advise from a local lawyer on further developments
Hello,
Issue them a notice in advance.
File an FIR against the builder.
If any case is instituted against you, then you may defend the same. You will have a strong case to defend since the bank was at fault.
Regards
Thank you, everyone, for such valuable comments and suggestions. My main concern is I am about to migrate to a foreign country in less than 6 months. If a notice is issued against me or a case if filed by the bank or I issue a counterclaim to the bank can it stop me from migrating? If yes then is there a way to delay the same? One more thing: As I said earlier that I do not have any document (MOU) with me that says that the builder will pay EMI till possession. It was only a verbal commitment and just that the builder paid the EMI for initial few months (bank statement can be shown). On the basis of that can I lodge an FIR against the builder? If yes then once again will it stop me from migrating?
The same ill not stop you from migrating, though you will have to attend the court dates either personally or through the POA.
Yes you can lodge an FIR, again the same will not stop you from travelling. But yes you will have to attend the proceedings regularly.
Regards
1) it would be a civil case filed against you
2) you are at liberty to migrate abroad .
3) your lawyer can appear in court on your behalf
4) execute POA in favour of family member
5) on basis of verbal commitment no FIR is maintainable against builder
a. This is no way going to effect your future plans.
b. The very fact the builder was paying the EMIs for the initial months, proves the fact that he was liable to pay the same. His conduct speaks for this. I doubt your FIR will be registered. You have remedy under civil law.
The bank cannot stop you from migrating to a foreign country, until there is any restriction order from any a court of law, you need not be worried about this.
Since the builder has entered into a tripartite agreement with the bank and you about the subvention arrangement, it becomes the builder's liability and not you/
You do not have to lodge a complaint with the police, it is the bank which has to take necessary action against the builder for recovery of loan amount.
1. Please approach the Banking ombudsman with all the grievances you have faced so far for the mistake done by the Bank with all the documentary proofs.
2. File a Complaint under the provisions of RERA to take action against the default builder and to recovery of money paid by your to the builder along with damages.
3. Plead before the RERA authority about the oral agreement committed by the builder for making the EMI's along with documentary proof that the builder has made 6 months EMI as you have mentioned above.
4. as far as the re-locating to foreign country please check with the concern authority, since all the case are Civil in nature, there will be no problem.
