• Purchasing a flat mortgaged by the Seller along with one another property

Hi, I am planning to purchase a flat which is already mortgaged by the Seller along with one of his other flat in another city. So both the flats are mortgaged together with a private bank. The Seller is asking me to self-fund 33% of the total deal amount during "Agreement to Sell" so that he can re-pay the mortgage outstanding against this concerned flat and release the property papers of this flat.Once he will hand over me the property papers, i can go ahead with the home loan and pay him remaining 67% amount during sale deed. Is it safe to give him 33% of the amount during sale agreement given that this amount was agreed during the initial sale discussion? what are the various risks involved here and what is the risk free way to handle this case ? Is (provisional) NOC from the Mortgagee bank definitely required before the sale agreement?
Asked 4 years ago in Property Law
Religion: Hindu

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14 Answers

1. Apparently there is no risk involved in the deal provided the terms of this agreement is duly reflected in the sale agreement itself.

2. Before making such an agreement do inform the bank about this deal and ask the seller to inform the ban in writing.

3. Yes the mortgaged flat can be transferred and the loan account can be transferred as well to the buyer provided he is eligible for loan as well.

4. So you will have to apply for transfer of this loan account and then proceed with the sale.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

1) dont agree to pay 33 per cent during execution of agreement for sale

2) you can at best pay nominal amount of say 5 per cent of flat value

3) apply for bank loan with same bank .

4) on loan being sanctioned bank will adjust 33 per cent of sale proceeds against loan out standings and pay balance amount to seller

Ajay Sethi
Advocate, Mumbai
87898 Answers
6207 Consultations

5.0 on 5.0

If there is written and registered agreement there is no risk. You can make agreement with condition that seller in so and so time has to clear loan on this property and get property releasesed from bank if he fails the agreements stands cancelled and seller has to return complete amount with interest of 24% per annum .

Alternatively you can also pay nominal amount to seller and apply for transfer for loan in bank , so with noc of bank you purchase the property and pay the amount to bank as loan and remaining amount to the seller.

In this transition take care of two things first donot make sell deed till there is NOC from.bank stating that complete loan amount is paid.

(Make this condition in agreement also.get it well drafted.)

SECONDLY get the agreement registered by paying requisite stamp duty and registration fee and make agreement time bound.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. The Deal can be conducted PROVIDED THE LENDER BANK ISSUES NOC, for the deal (for the specific Flat) ELSE no.

2. Proper Agreement should be executed and full payment can be made ONLY against possession.

Keep Smiling .... Hemant Agarwal

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0


The bank will not give you NOC before the payment.

Enter into an agreement to sale and make a specific clause that if the seller is unable to clear the mortgage then he will refund the entire advance.

Also see if the two properties were mortgaged for the same loan or not, if both of them have been mortgaged for the same loan then take NOC from the bank that after the payment the property that you are purchasing has nothing to do with the loan taken by the seller.


Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

In a home loan, banks may not insist to get the property mortgaged, instead, the documents shall be retained by them as collateral. If so, then, obtain an NOC from the bank as they are the necessary party in this transaction. In the sale agreement, mention a stipulated time frame to complete the obligations. The bank may not release the documents by paying 33%, unless the full loan amount in repaid. Therefore, instead of sale agreement, go for sale deed after getting NOC from the bank. Before registration, the property should be vacant for you to take immediate possession.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

The sale can not be completed until the charge created on this mortgaged property is released by the Bank in question.

The arrangement agreed in between you and the proposed seller works, but its just that you need to get an agreement to sell drafted through an expert lawyer so that all the modalities of this arrangement are recorded in the said agreement. Get this agreement duly stamped and registered.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Hello sir, you should mention the above conditions " that the seller would clear the loan amount from the initial payment and will clear the property from all kind of loans and liabilities before the sale deed " in your agreement to sell

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

1. If you have already agreed for paying 33% to the seller, then it is upto the seller how he applies the said amount. Whether its for repayment of his existing loan on the flat or for something else

2. in case the seller fails to complete the transaction as agreed in the agreement to sell, you will have your remedy against the seller under the specific relief act by seeking specific performance of the contract

3. i suggest you first ask the seller what is the total outstanding loan on the flat you intend to purchase and whether the 33% which you will be paying would suffice to close that loan account and get the property papers released from bank

4. if the 33% of consideration corresponds to the balance loan amount then you can directly pay to the seller's lender bank on behalf of the seller, instead of paying to the seller

5. you must record all this clearly in a written understanding like your agreement to sell and also set out the consequences in the event the seller fails to obtain a clear title for the flat by having the mortgage discharged

6. yes the NOC of mortgagee bank will be needed before you and seller sign the sale agreement. But if you are signing a MOU with the seller then that wont be needed because under the terms of the MOU, the seller will have agreed with you to discharge the mortgage loan on the flat to be sold by applying the 33% money which you will be paying to the seller

Yusuf Rampurawala
Advocate, Mumbai
6876 Answers
79 Consultations

5.0 on 5.0

It may not be possible to release one property alone in a mortgage loan by paying a part amount.

The mortgage loan has to be fully discharged only after which the mortgagee shall release the property now under mortgage, you may clarify the same from the lender directly instead of trusting the words of the borrower.

Do not get trapped in the sweet words of the seller, he may not be able to retrieve the property by paying part amount, till he discharges the entire loan.

You may first discuss with the mortgagee bank about this, only after a written confirmation by the bank you may decide to enter into sale agreement, before that you may obtain a legal opinion from a local advocate on this.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

What if he back step, than round of litigation for specific performance of agreement to sale.

In my opinion such purchase is not feasible where property already under encumbrance and booked under bank authority. .

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

You can do the following:

1. You can enter into a "Agreement to Sell" with the clause stating that the seller will clear the outstanding amount of the flat from the money which you give him;

2. Make sure you give money through bank transfers;

3. The second thing is make the Sale Agreement and add that clause stating that you had previously given 33% money to clear the outstanding dues of the bank;

4. Execute and register the Sale Agreement in your favour.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

Kindly seek NOC from the bank to get the exact status of the said property. The condition stated in your question can be incorporated in the agreement to sale. And further the sale deed can be executed with home loan.

Prashant Nayak
Advocate, Mumbai
27224 Answers
88 Consultations

4.4 on 5.0

Dear Sir,

You are inviting little risk. NOC required before sale agreement. See that amount is paid to the bank through your account to the loan account of that person or to the bank directly. There must be some evidence in this regard. It is fine if you get the loan later. Try for it.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

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