• Mortgaged house sold by builder

I purchased my house in 2016 in hyderabad. Loan was sanctioned and paid by ICICI bank. In 2018 I came to know that, builder has mortgaged my house ans several other houses to Tata Capital for project loan. Now Tata Capital has sent the legal notice to builder for returning back the loan amount otherwise they will start auctioning the house. Pleas advise me, if what are the legal rights do I have?

Tushar Bhagat
Asked 4 years ago in Property Law
Religion: Hindu

10 answers received in 1 day.

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12 Answers

File police complaint against builder for cheating and criminal breach of trust under section 406, 420 of IPC

2) file complaint against builder before consumer forum and seek orders to direct builder to repay loan taken from Tata capital

3) in alternative to refund your money with interest

4) also seek litigation costs and compensation for mental torture undergone by you

Ajay Sethi
Advocate, Mumbai
87938 Answers
6207 Consultations

5.0 on 5.0

Icici bank ought to ya e done due diligence before sanctionof loan

You can sue bank also for deficiency in service and seek compensation from bank

Ajay Sethi
Advocate, Mumbai
87938 Answers
6207 Consultations

5.0 on 5.0

File a complaint against builder with police for cheating and criminal breach of trust. Also check if the builder forgerged any document to get loan.

Further Icci bank complaint cannot be filed as they have taken due diligence in granting loan based on your documents and record. In my advise the builder has create some forged documents to create a mortgage.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Dear Sir, You are not absolute owner of the said house until and unless release the mortgage deed (discharge of mortgage deed), you have to pressure to your builder/previous owner to release the mortgage deed by made payment of loan of the Tata Capital. It is the risk of ICIC Bank you have keep silent, if Tata Capital has taken any legal action against you, you have to file injunction suit against them by made parties of them.

C. V. Jadhav
Advocate, Bangalore
545 Answers
18 Consultations

4.7 on 5.0

Dear Sir,

You can lodge complaint against ICICI people also. The law is as follows

A builder can mortgage to banks for two reasons. Builder can mortgage the flat for completion of the project.

In that case all the flats in the project will be mortgaged to the bank which has financed for that project. Since it is built by banks money it has the first charge.

when he wants to sell flat, builder should get NOC from the bank.

This is a regular and common practice followed by the builder.

In the second case, if the builder has mortgaged to bank of geting a loan other than the project specific, builder has to close the loan and release the mortgage. Only then he can sell the flat to some one else. Even if he selling with fake documents, it can be known by EC

EC shows if there is any banks interest.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

1) Same flat won't be mortgage twice and both are Private Finance Companies.

2) You can file fraud case against Builder and ask ICICI bank to take possession for your flat or you take possession of the flat. Inform ICICI bank first regarding this what has happened.

3) You have to make complaint first with Consumer Forum and in Police station.

4) Sent legal Notice to Builder and CC to ICICI bank for Possession.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

You may file a civil suit making the builder and Tata capital as the party to hold builder responsible to give possession as per the agreement.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

Firstly, as per your query that the loan by the builder was prior to the loan which you got from ICICI.

Secondly, whenever a bank gives loan against any property then it is obligation over the bank to see its title in registrar’s office.

Thirdly, as they have are in fault at their end then you need not to worry about anything.

Fourthly, though they won’t listen up to you so file a suit for permanent plus temporarya injunction against the bank to not to take possession of your flat, and also make ICICI as defendant.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

You should have taken a legal opinion before entering into sale agreement.

Actually the financier should have given NOC for you to buy it through loan from other bank.

In the absence of NOC, you may have to catch hold of the builder for getting you out of this trouble and also to obtain NOC from them since your bank is paying the loan amount in respect of your flat.

The builder might not have paid this amount to the lender bank hence they have issued the legal notice.

Therefore the builder only is liable for this and not you, you can even file an injunction suit on the same basis,

T Kalaiselvan
Advocate, Vellore
78095 Answers
1543 Consultations

5.0 on 5.0

Can be file complaint against ICICI Bank also? As they sanctioned my home loan in spite of knowing that, this property is already mortgaged with Tata Capital.

Complaint against the ICICI bank is not maintainable, they have sanctioned the loan on the basis of your application and not on the basis of the builder's status.

T Kalaiselvan
Advocate, Vellore
78095 Answers
1543 Consultations

5.0 on 5.0

Dear Client,

No proceeding can be initiate against ICICI, You have approached the bank. Well, can file criminal complaint against builder u/ 420, 406 IPC.

Consumer complain also valid.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

This is my response to you:

1. At this belated stage send a legal notice to builder, tata capital and your ICICI Bank;

2. You must file a complaint before consumer forum against the builder and ICICI Bank for deficiency of services ;

3. Best, is to approach HC and get 'stay order' against the sale of your houses;

4. You must also say in court that due to no fault of your own, you are made to suffer;

5. The real perpetrator of the crime is the builder so tata capital should be reimbursed for their losses by the builder;

6. In any case, do not vacate the premises and hold the builder liable and also file an FIR against him.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

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