• Resale of flat first owner

My 12 yrs old Flat at Thane still have loan from ICICI Bank, planning to sell for relocation to other city. My questions are:
1) After paying bank dues will collect original agreement copy for new registration, now who should possess the original old agreement buyer or seller? If new buyer then when I should hand over to him. 
2) When I should handover all the original documents to buyer after registration or after realisation of final payment.
3) At what circumstances I should hand over the flat and when, if customer wants to pay final payment by personal cheque savings not from bank loan. As buyer demanding to handover the flat after 2/3 days of final payment. 
4) Buyer was trying to offer me some 10% cash payment which completely denied 
5) What precautions I should follow to avoid mistakes in such dealings.
Asked 4 years ago in Property Law
Religion: Hindu

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18 Answers

1) buyer will have original chain of documents

2) you should hand over originals at time of execution of sale deed when full payment is received by you

3) insist on demand draft or bankers cheque . refuse to accept personal cheques

4) consult a local lawyer

Ajay Sethi
Advocate, Mumbai
87939 Answers
6207 Consultations

5.0 on 5.0

1. You may hand this over to the new buyer once you finish the sale transaction with him after execution of the sale deed.

2. After Registration.

3. Handover the physical possession of the flat post you receive the full and final payment and execution of the sale deed.

4. Take a lawyer's assistance to walk you through the process of executing and registering the sale.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Hello,

1) The new owner has the right over the original Agreement Copy and you can hand it over to him at the time of the new Sale Agreement you will enter into with him.(after the registration).

2) It is advisable to hand over all the originals to the buyer after registration and after receipt of all the payments whichever comes later.

3) Once the payment is received in final you may hand over possession. The cheque can clear in two days if it is a local cheque. You can tell the buyer that the possession shall be handed over as soon as the the cheques are realized.Alternately let him pay by a DD or a bank transfer.

4) It is a matter of mutual understanding where people may transact part payment in cash to avoid tax liabilities.

5) As far as possible put down all terms with clarity in writing about the entire transaction as to when and how and who will perform what and get the document vetted by a lawyer who deals with property related matters.

S J Mathew
Advocate, Mumbai
3383 Answers
175 Consultations

5.0 on 5.0

Dear Sir,

My answers are as follows:

1) After paying bank dues will collect original agreement copy for new registration, now who should possess the original old agreement buyer or seller? If new buyer then when I should hand over to him.

Ans: You may even transfer the loan to the buyer and get the balance consideration amount.

2) When I should handover all the original documents to buyer after registration or after realisation of final payment.

Ans: After getting NOC from your bank, you can get originals from bank and those originals may be handed over to your buyer.

3) At what circumstances I should hand over the flat and when, if customer wants to pay final payment by personal cheque savings not from bank loan. As buyer demanding to handover the flat after 2/3 days of final payment.

Ans: Only after getting NOC from your banker you must hand over the possession to your buyer.

4) Buyer was trying to offer me some 10% cash payment which completely denied

Ans: If the conduct of buyer is suspicious better to avoid sell the property to him.

5) What precautions I should follow to avoid mistakes in such dealings.

Ans: You must be very careful that cheques issued by him are cleared and bank issued NOC to you in respect of your loan.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

Dear Client,

At the time of Sale, all the original chain of documents mean to deliver to new buyer, Keep copies with u.

After full consideration paid.

Can handover possession anytime, after receiving full payment. Let the cheque en cash first.

No precautions required except make sure, full payment shall receive before possession hand over.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1) You can keep with you or handover to new buyer after receiving all money.

2) after final payment.

3) Yes after realisation of cheque and receive all money.

4) you can take as token money.

5) Take atleast 50% of money and transfer registration on his name and remaining 50% at the time of handover of flat.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

1. As soon as you sale the property to a buyer then the buyer will get a new sale deed and the same will be retained by him, you may thereafter handover the old documents to him.

2. After realisation of the payment.

3. As and when you receive the entire payment, give the possession to the buyer.

4. It is good if you have denied the cash payment.

5. Just that do not give the possession without getting the entire consideration.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

In response to your Questions:

1) All original documents of the flat are title documents which have to be retained by the owner of the flat so they pass from owner to owner.

2) Original Documents should be handed over along with transfer forms of the Society and possession once you have received the entire consideration.

3) If the buyer is not taking a loan but shall be paying from his personal sources, execute and register only on receipt of total payment, insist on a Demand draft or NEFT.

Lakshmi V Singh
Advocate, Mumbai
2 Answers

4.0 on 5.0

Firstly whenever the property which is a subject matter of transaction is on Loan, then the said transaction has be made in systematic manner with schedule of payment. Following documents has to drafted:-

1. MOU with mutually agreed terms with date and payment scehdule

2. Agreement for sale with 50%of payment

3. TO clear loan and obtain Bank NOC

3. Sale Deed

4. Possession Letter

for further query feel free to call

Krinjal S Ahuja
Advocate, Mumbai
16 Answers

4.3 on 5.0

1. Have you deposited agreement copy or sale deed with the lending bank? After selling the you shall have to enter in to a tripartite agreement with the bank and then sell the mortgaged property to the buyer with bank's consent and register the sale deed in his favour. Under such circumstances the payment for the balance outstanding can be made by the buyer to the bank to enable the bank to return the original title deed of yours to you which you can handover to the buyer at the time of registration of your sale deed in his favour.

2. Your buyer can make two sets of payment. One is your outstanding loan amount to be paid directly to the bank and the balance amount is to be paid to you. After getting the full payment, the bank will return your original deed to you which you can hand over to the buyer while registering your sale deed in his favour.

3. You can handover the flat after the full payments made to the bank and yourself are realised and therefater register the said property in his name.

4. Now a days, it will be risky to collect 10% of the total sale proceeds which is expected to be huge in amount and should be avoided.

5. Engage a lawyer having expertise in this field top monitor the steps to be taken by you in this regard. Do not pass on possession of the property without the sale proceed is credited to your account and your loan account is cleared by the buyer.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

The purchaser will keep all the Orginal Agreements, pls dot hand over the agreements till you receive all the payment and your bank loan is foreclosed

Anwar Zaidi
Advocate, Mira Bhayandar
231 Answers

4.5 on 5.0

What is old agreement?

If there is no registered sale deed in your name then you cannot sell the property.

Now you being the seller, it becomes your duty to acquire title to the property until you cannot sell the property.

The execution of Registered sale deed itself should be subject to realisation of consideration amount.

It should be subject to realisation.

T Kalaiselvan
Advocate, Vellore
78097 Answers
1543 Consultations

5.0 on 5.0

You will get the original agreement once you repay the loan. You have to give it to the buyer once you have the registered sale deed with him after receipt of all payments. You should handover the same only after receipt of final payment. Don't believe in cheque payments other then bank loan cheque. Handover the possibility only after realisation of the cheque.

Prashant Nayak
Advocate, Mumbai
27267 Answers
88 Consultations

4.4 on 5.0

1) MOU woukd be binding upon parties

2) administrative delays like clearing of cheque dies not amount to default

3) bank would issue NOC only after its dues are cleared

4) bank would not issue NOC till original documents are received

Ajay Sethi
Advocate, Mumbai
87939 Answers
6207 Consultations

5.0 on 5.0

1. Notarised MOU is a form of a notarised agreement and has the same weightage carried by an agreement. duly notarised.

2. Default for what? Any failure to may dues on the specified day will be called default in making payment. Administrative delay, like cheque clearing, getting document from bank etc will be cosidered as the reasons forwarded by the defaulter for failing to pay on time which may or may not accept by the lending Bank as valid ground.

3. Bank NOC means No Objection Certificate issued by the Bank for a particular purpose. If payment is assured to be made directly to the Bank by the prospective buyer or pays the same in advance, then the lending bank might issue NOC to the borrower/Mortgagor to sell his mortgaged property.

4. Bank can issue NOC if it receives full payment of its dues and at that time you should collect 'No Due' certificate from the lending bank in connection with your loan account. Thereafter you can sell your mortgaged property on the ground that there is no loan left to create mortgage there upon. However, much before settling the loan amount, bank should be negotiated with and the title deed deposited with the bank should be traced out and kept at the branch for handing over. The DD for clearing the loan should be handed over while taking the original title deed across the table.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

1. The notarised MOU is not enforceable in court of law;

2. The reasonable delay for genuine reasons can always be accepted as valid excuse.

3. If there is a loan pending with the bank in this regard and the loan has not been fully discharged or the clearance is awaited, then the bank may give NOC as an interim relief.

4. The registration cannot be done without clearance from bank.

You may put pressure from bank to give clearance by an endorsement of loan discharged in full and there is no due

T Kalaiselvan
Advocate, Vellore
78097 Answers
1543 Consultations

5.0 on 5.0

1. MOU is a contract between the two parties stating under which condition they will abide by.

2. if it is done purposely then it will be considered

3. it a certificate issued by the bank only after completely settlement or repayment of loan

4. no bank noc is not required at the time of registration

Anwar Zaidi
Advocate, Mira Bhayandar
231 Answers

4.5 on 5.0

1. They are totally legal and are enforceable.

2. No it can not be considered as default and also note that in some peculiar circumstances it can be considered as default.

3. Bank will ask their lawyer to do a title search as and when the same is there bank will give the NOC

4. No it is not acceptable

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

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