• Whats is the remedy for flat owners if a builder goes bankrupt and bank loan turns NPA

We have purchased flats in a scheme at ahmedabad in 2015 and 2016 with full payment without any loan. There are total 4 flats, 2 1 bhk and 2, 2 bhk of 10 lacs and 12 lacs each. 1 bhk flats were purchased in 2015 and 2 bhk in 2016. Builder has taken a loan on the project and has mortgaged the scheme to corporation bank. As a rule builder was required to pay the bank from the sale proceeds, but due to financial problems builder diverted the funds and loan remained unpaid and turned to NPA. Bank issued a notice of symbolic possession on 27 april 2017 and filed recovery suit with DRT. As of now the matter is pending in DRT and builder is absconding. In the notice bank has stated that all the flats other then those which are having final NOC from bank (mostly loan cases) they have possession and first charge on all the flats. 
We have possession of all the flats and out of the 2 types of flat 1 bhk flats are finished flats so we have given them on rent. 2 bhk tower is underconstruction and 15% work is still pending. 
The entire scam has been done by the builder in nexus with the bank employees, Builder is still selling the flats and bank is still issuing NOC's to those flats which had provisional NOC's earlier. Bank has never contacted anyone and they are aware that builder is selling the flats and they havent brought stay on the sale. Several FIRs are registered on builder, but no action is been taken and he is declared absconder.
What should be our course of action as we are cheated by the builder and after making all the payments and gettting clear possesion our property is under dispute.
Is it possible that bank may auction our property even though we are owners of the flat and have a registered sale deed in our name.
Asked 4 years ago in Property Law
Religion: Hindu

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10 Answers

1) builder ought to have from sale proceeds repaid bank loan

2) since builder failed to repay bank loan you don’t have clear and marketable title to the property

3) bank can seek to auction the flats as loan not repaid

4) your remedy is against builder

5) sue the builder to recover your money with interest

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

Dear Sir,

Since bank has not issue NOC to you and having first charge over your properties as such DRT may issue attachment and auction orders. Bette implead yourself before the DRT if already not a party and contest the case. In the meanwhile see that bank people are included in the FIR issued as the builder colluded with the bank staff.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

Hello sir, the bank cannot claim any legal rights on your flat and on the flats which have been sold out by he builder ,,The bank can take over the project and sale the unalloted flats to recover the money..

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

1. the bank which had financed the project cannot have a charge on the flats which are already sold to buyers since the bank had already given NOC for the sale of the said flats

2. it cannot be understood how the bank gave NOC for sale of flats by the builder when the sale proceeds were not used to repay the bank loan but got diverted. A bank will never give NOC unless the money paid by the builder is paid to the bank towards its pending loan

3. so the bank cannot have a charge on the flats for which it has already given NOC

4. the bank can have charge on the unsold flats and on the land and balance FSI potential

5. if your flats for which the bank had given NOC are also threatened to be attached by the bank then you can intervene in the DRT proceedings and seek relief from the court

6. the cannot auction your flats. It has already given NOC for sale of your flats by the builder to you. It can only put to auction the unsold flats

7. if the sale proceed received in auction sale is not sufficient to repay the bank loan entirely, the bank can follow the other assets of the builder. But under no circumstances can the bank touch your flats

Yusuf Rampurawala
Advocate, Mumbai
6881 Answers
79 Consultations

5.0 on 5.0

Dear Cleint,

If you are sure of sale of flats and giving NOC by bank even after filing case in DRT, than challenge the claim of bank on this ground and get stay. file appeal u/s 17 of SARFAESI Act. Stage of DRT case ?

File FIR against builder.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

The matter can be contested as the apartment is transferred to the buyer and bank is looking for the possession of the property. The NOC ISSUED FOR THIS PURPOSE MAY BE USED AS GROUND AGAINST THE BANK IN DRT AND CONSUMER FORUM FOR THE CASE AGAINST BUILDER AND BANK AS PARTIES.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

If the builder had been declared as absconder how can he still keep selling the flats?

There is a nexus between the builder police and the bank.

This has to be exposed through media and to be represented to the top police official of the district or state so that there can a be a remedy for this continuing fraud.

Since you have purchased the property by a registered deed, you file an injunction suit against the bank for this on the basis of the registered sale deed.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

See if the NOC is bank is issued in your flats the bank now cannot take possession of already sold flats who's noc was issued by bank.

If the possession notice of bank is received under 13(4) of Sarfesi challange said order before the DRT under section 17 sarfesi on ground that bank for the flat issues noc certifying they have received payment for said flat and they have no objection on sale of flat.

The bank can take possession of unsold flats and recover loan but not the sold one who's noc is already issues

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

I would advice you to file an impleadment application in the said case in DRT, so that you may be added as an party in the said case, where you can defend your rights by proving that you've paid in full for the flat to the builder, thereby you can protect your interest against the bank.

For any other queries, feel free to consult.

Siddharth Jain
Advocate, New Delhi
5928 Answers
101 Consultations

5.0 on 5.0

You can file a writ petition in HC. You can exercise NCLT remedy also.

Prashant Nayak
Advocate, Mumbai
27261 Answers
88 Consultations

4.4 on 5.0

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