• Shortage of land area than registered area in house property in Bank auction under SARFAESI act

Sir, 
     I was the successful bidder in the Auction by State Bank of Hyderabad and paid amounts as per per rules and Authorised Officer gave Confirmation sale orders.Bank clearly mentioned details with land area of 253 Sq.yds. The Bank took more than 6 months time to hand over possession of house property. The Bank sought possession of property Hon'ble CMM court,Hyderabad, the court appointed Advicate commissioner to take possession fro barrower and to handover to Bank. The Advocate Commissioner tried to take possession  in April 2007 but since barrower staying in that house requested time and he gave time,duly preparing Panchnama in which he mentioned the details of property with land Area while mentioning time given and obtained signatures of barrower.tha Bank finally gave possession after another month and half and registered the sale duly mentioning in schedule wit municipal No. and land area of 253 Sq.yds. However tha land area I only 180 Sq.yds only. The Shortage portion of 73 Sq.yds.is occupied by by the neighbor none other than the Husband of defaulted barrower in the absence of original link document which were given to after many months I could not do anything as bank said the property is handed over in as is Where is condition. Presently the criminal case is under progress Request you please advise me what action I can take
Asked 2 years ago in Property Law from HYDERABAD, Telangana
Religion: Hindu

The bank has auctioned land area of 253 Sq. yards or 180 Sq. yards ? In case the bank has auctioned land area of 253 Sq. yards and the area is 180 Sq. yards, file a case on the bank with the help of local lawyer.

Dalip Singh
Advocate, New Delhi
576 Answers
12 Consultations

4.9 on 5.0

Bank has mentioned that land area is 253 square yards

However if actual area given is 180 square yards then you can issue legal notice to Bank to hand over balance area as mentioned in sale deed

3) you can file civil suit against encroacher to vacate area in his possession

Ajay Sethi
Advocate, Mumbai
74625 Answers
4464 Consultations

5.0 on 5.0

Since you have taken possession from the bank as per the municipal record measuring 253 yards and found it less physically there after the in that case ,you first take the demarcation and if any encroachment is found, then you have to move the civil court for that cause and also make the bank as one of the party in the suit

Parkash Chand Bhardwaj
Advocate, Hamirpur
120 Answers

4.8 on 5.0

File a case for declaration and injection against the occupier and for the damages on the bank.

The bank can not ignore when the defect in the possession has been notified to the Bank.

Rajashekar
Advocate, Bangalore
570 Answers
4 Consultations

4.8 on 5.0

Dear Client,

Bank cannot Raise its hands after sale of property until complete possession is hand over.

Well, Fir is sufficient to recover possession, also implicate bank officials in FIR.

last resort will be civil suit against bank and defaulter husband for recovery of possession.

Yogendra Singh Rajawat
Advocate, Jaipur
18590 Answers
22 Consultations

4.6 on 5.0

Dear Sir,

Under the provisions of SARFAESI Act the sales will be conducted as is where is basis and all such auction purchasers will be at their own cost purchasing the properties. However, if there is any deficiency in land measurement then the banker needs to reimburse equivalent amount in terms of money. In this regard you may sue the bankers.

Kishan Dutt Kalaskar
Advocate, Bengaluru
5298 Answers
172 Consultations

5.0 on 5.0

Hi

1) It is the duty of the bank to handover possession of 253 square yards and banks cannot renege on the sale by stating that the sale is on "as-is-where basis"

2) A mere perusal of Section 55(1) in The Transfer of Property Act, 1882 would show that the officer is duty bound to

(a) to disclose to the buyer any material defect in the property 1[or in the seller’s title thereto] of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;

(b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller’s possession or power;

(c) to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto;

(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place;

(e) between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents;

(f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits;

(g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all encumbrances on such property due on such date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances on the property then existing.

3) Caveat Venditor(Seller beware) has replaced the rule of Caveat emptor(Buyer beware).

4) Please refer to judgment of Supreme court of India in Haryana Financial Corporation and Another vs Rajesh Gupta wherein Supreme court negated the submission that Assets were sold on "as-is-where-is basis". In this judgment, it is categorically stated by Supreme court that Bank is exercising the right of the owner of the property and not selling as official liquidator and hence cannot claim that he sale was done on "as-is-where-is basis".

5) You should move the civil court against SBH and DRT in your case and claim the 73 square yards or compensation in lieu there of.

Hope this information is useful.

Rajgopalan Sripathi
Advocate, Hyderabad
1828 Answers
338 Consultations

5.0 on 5.0

It is your fault that you did not verify the documents and the correctness of the property.

May be because you thought that this property is coming at cheaper rate, in the event of any delay this may go out of hand.

Now since you are the loser, you have to face the problems.

The property purchased through such auctions are generally not very safe and they have one of the other problem which will stretch the legal battle for years, thus there wont be peace even after the purchase is genuine.

You could have obtained a legal opinion before venturing into the purchase, if the opinion did not recommend the purchase you could have save lot things i.e., money, time and energy.

Now since you have approached police, you may have to follow it up thorough the criminal case only.

The bank will disown the responsibility once it handed over the possession.

You cannot drag the bank into the legal battle.

T Kalaiselvan
Advocate, Vellore
64580 Answers
836 Consultations

5.0 on 5.0

The Criminal case filed is still on Trals stage since 2009and presume to be over in another 3 months.

You may wait until then for the result after which you can decide further course of legal action.

T Kalaiselvan
Advocate, Vellore
64580 Answers
836 Consultations

5.0 on 5.0

Dear Sir,

As per your version it is clear that the bank clearly mentioned details with land area of 253 Sq.yds whereas it is now saying that the property is handed over in as is Where is condition.

You can claim the amount paid for 73 square yards as on actual basis the land is only 180 square yards.

You are entitled to refund of excess amount paid for land admeasuring 73 square yards.

Vijay Jogle
Advocate, Hyderabad
23 Answers
1 Consultation

5.0 on 5.0

Hi ,

1) We are able to see your feedback, yesterday you had rated our answer as good and today you have downgraded our answer as Terrible. We are unable to comprehend the rationale for you to downgrade the answer despite we stating the factual position of law.

2) Also in this site, we are expressly prohibited from soliciting customers and hence we are not expected to solicit customers, unless and until the customer wants to speak to us on their own accord.

3) Despite the above mentioned points, our legal view is that since you have filed a criminal complaint, the same will be useful to you to the extent of accused being convicted and accused sentenced to undergo jail imprisonment as the offences charged Sec 120 (B) 406,420, are not compoundable (i.e accused cannot avoid going to jail despite agreeing to pay compensation to the victim) where as Offences charged u/s 427 and 506 are compoundable (as these are minor offences, accused can avoid going to jail upon payment of compensation to the victim).

3) For receiving any compensation for shortage of 73 square yards either in form of cash or in the form of reversion of land to you by the accused who has occupied the 73 square yards, our view is that your only remedy lies under Civil Procedure code.

4) We do not want to pour water in to your belief or disappoint you with our answer, but our views are the factual legal position and you are liberty to cross check and verify our stated legal position.

Hope this information is useful.

Rajgopalan Sripathi
Advocate, Hyderabad
1828 Answers
338 Consultations

5.0 on 5.0

hi

kindly do post your query and we will address it latest by early tomorrow

Rajgopalan Sripathi
Advocate, Hyderabad
1828 Answers
338 Consultations

5.0 on 5.0

HI,

The bank can't turn back and once more case increases on borrower for creating third party interest.

Ganesh Singh
Advocate, NEW DELHI
4463 Answers
9 Consultations

4.5 on 5.0

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