• Bought a mortgaged flat

Hi 
i purchased a mortgaged flat and done registration in May 2018 with agreement value of 1.20 cr . Seller has outstanding loan payment of 1cr. After registration i paid the seller 70 lacs to his account and balance is home loan. The seller still not paid the bank due to which my bank cannot disburse loan. its been 2 months now everytime he says i will pay next week. 
he has given me outstanding statement and list of original documents which are with the bank.
If he defaults bank will take custody of the flat? i will have no flat and no money left...

what can i do in this situation???
Asked 2 years ago in Property Law from Greater Mumbai, Maharashtra
Religion: Hindu

1. you should have directly paid the 70 lacs to the lender bank of your seller instead to the seller

2. have you received possession of the flat?

3. you will have to file a suit for specific performance and take out interim application for urgent reliefs

4. if you can arrange the dues of the lender bank of the seller through any source, then consider paying those dues and obtain a foreclosure letter from that bank - atleast this will save your flat from being auctioned by that bank to recover its dues

5. then you will have to agitate your claim against the seller

Yusuf Rampurawala
Advocate, Mumbai
5105 Answers
31 Consultations

5.0 on 5.0

1) you should sent legal notice through an Advocate.

2) If seller did not respond within 15 Days then you can file a civil suit in civil court.

3) If seller did not respond within 15 Days then you can file a civil suit in civil court and also you can file cheating case u/s 420.

Mohammed Mujeeb
Advocate, Hyderabad
15449 Answers
7 Consultations

4.5 on 5.0

1. I wonder how could you make such mistake by paying the money to seller and not the bank.

2. Once a flat is mortgaged the consideration money is to be paid to the creditor so the property is freed from loan and they you make fresh mortgage to secure loan from your bank.

3. Now as you have paid the seller he appears to have fled with the money and now his creditor being the mortgagee of the flat can auction sell it recover his dues.

4. in that event your remedy will lie only against your seller which would take long years to bring your money.

Devajyoti Barman
Advocate, Kolkata
19515 Answers
277 Consultations

5.0 on 5.0

1) you should have made payment directly to bank

2) taken loan from same bank

3) issue legal notice to seller to re pay bank loan

4) if he refuses to do so file police complaint against him for cheating , criminal breach of trust under section 406, 420 of IPC

Ajay Sethi
Advocate, Mumbai
74388 Answers
4450 Consultations

5.0 on 5.0

1. It was highly unwise to buy a mortgaged property without the NOC of the financing Bank. The property is lien recorded in favor of the Bank and the Bank shall have the FIRST right over the property, for its pending dues and nothing can be done legally against the Bank.

2. It was further highly unwise to pay money, directly to the Seller-Party. At the most, AFTER getting the Bank NOC, you could have paid directly to the Bank, AFTER executing Agreement of Sale with the Seller-Party.

3. What now remains is amicable settlement with the Bank involved in it.

4. You can ALSO file a Police FIR against the Seller-Party, for Cheating, Fraud, Forgery, Intimidation, ....

Keep Smiling .... Hemant Agarwal

Hemant Agarwal
Advocate, Mumbai
4307 Answers
23 Consultations

5.0 on 5.0

File FIR for cheating and criminal breach of trust u/s 420, 406 IPC.

Yogendra Singh Rajawat
Advocate, Jaipur
18433 Answers
22 Consultations

4.6 on 5.0

1) You can file a case in consumer forum and take possession of the flat. Please file criminal case against him.

Ganesh Kadam
Advocate, Pune
9590 Answers
80 Consultations

4.9 on 5.0

Yes. Bank will take custody if the flat is provided as security. You cannot purchase morgaged flat without NOC from concerned bank.

Send seller a legal notice regarding payment of his bank loan.

Abhilasha Wanmali
Advocate, Nagpur
897 Answers
1 Consultation

4.8 on 5.0

1. Your sale deed is invalid in the eyes of law since the mortgagor can not deal with his mortgaged property untilll the mortgage is released.

2. The correct procedure is to enter in to a tripartite agreement with the bank and the mortgagor for selling the property and deposit the sale proceeds directly to the loan account of the mortgagor to enable the bank to realise its outstanding amount.

3. ask the seller to refund the amount or collect a letter from the bank with back date giving consent for the said sale, for which he shall have to pay off the outstanding.

Krishna Kishore Ganguly
Advocate, Kolkata
24025 Answers
659 Consultations

5.0 on 5.0

You should have paid amount to the bank and not to the seller. I suppose you having receipts with you. File a criminal case of cheating and criminal mis appropriation of money.

Jugal Kishore Agrawal
Advocate, Jaipur
81 Answers

Not rated

This is my response to you:

1. Did you make a personal arrangement with the other person that he will pay off the 70 lacs soon?

2. If yes then he is bound by it;

3. If no then you may initiate a police complaint against him;

4. That this other person has gone back on his promise;

5. You can also file a suit as method of last resort to recover the money;

6. It is always risky to enter into an agreement of a mortgaged flat;

7. Consult your local lawyer to help you find out a way in this.

Gowaal Padavi
Advocate, Mumbai
1917 Answers
3 Consultations

5.0 on 5.0

Sir in case he does not pay loan bank shall take the possession of the property and auction it.

You have remedy what clause regarding loan has been written in the agreement. Send a notice to the seller to clear bank dues in 15 days. If he fails F ile for specific performance of the agreement.

And a complaint under secrion420 ipc and 406 with the police.

Shubham Jhajharia
Advocate, Ahmedabad
24271 Answers
96 Consultations

5.0 on 5.0

You have taken a hasty decision to settle the entire amount without ascertaining all the facts and also without confirming the further procedures to be initiated in this regard so that the bank discharges the loan in full and hands over the original title documents.

Now if the seller is not cooperating then you may have to drag him to court alone for relief and remedy, but the bank will initiate steps for recovery of loan if repayment is not made.

The bank may even try to get possession.

T Kalaiselvan
Advocate, Vellore
64348 Answers
834 Consultations

5.0 on 5.0

1. You seem to have acted sans any legal advice, hence landed yourself in this situation. Under no circumstance the amount should have been paid to the seller. It ought to have been paid to the bank directly. Loan amount should have been paid directly to the bank and then fresh loan should have been applied by you from the same bank, but you threw caution to wind. When a property is mortgaged a charge on it is created in favour of the mortgagee i.e bank, hence without the consent of the bank you could not have purchased it in the first place. The sale deed is a nullity as the consent of mortgagee was not obtained to sell it. Bank has the right to take over the possession of the property and auction it to recover its pending dues.

2. Immediately file a FIR under Section 406 and 420 IPC against the seller and also file a civil suit for recovery of money against him in the competent civil court.

Ashish Davessar
Advocate, Jaipur
28564 Answers
835 Consultations

5.0 on 5.0

You need to file a police Complaint against him. It's a high time else he will abscond with your money. You should have not paid him and cleared the same to bank.

Prashant Nayak
Advocate, Mumbai
18517 Answers
34 Consultations

4.6 on 5.0

Sir,

Simply issue him a notice saying that your bank is not ready to disburse the loan from your account which is creating hurdles in your business. If he defaults in paying bank will come after the flat to recover it's loans.

Garima Anil Mehrotra
Advocate, Mumbai
366 Answers
1 Consultation

4.9 on 5.0

1. If it is a Public Sector Bank then there can not be any lock in period for prepayment as per RBI Guidelines. Let the seller write a letter to the said bank asking or prepayment and also asking for not charging any further interest on the loan.

2. The Mortgagee Bank is supposed to make entry with CERSAI as per RBI Guidelines and this i a strong point with you.

3. However, the sale deed in connection with a mortgaged property is illegal without the consent of the lending Bank and even if the seller repays the loan, the sale deed registered during the period of mortgage stays as illegal hence invalid.

4. If the seller repays the entire loan amount to the lending Bank, ask him to collect a letter with date which previous to date of the sle deed wherein the Bank will authorise him to sell his mortgaged property.

5. The said consent letter given by the Bank will legitimise the sale deed which the seller has illegally registered in your favour.

Krishna Kishore Ganguly
Advocate, Kolkata
24025 Answers
659 Consultations

5.0 on 5.0

What about the 70 lacs u paid to investor and which he still has not paid to his lender bank?

Yusuf Rampurawala
Advocate, Mumbai
5105 Answers
31 Consultations

5.0 on 5.0

Make balance payment only after September

If you make payment now there is no guarantee that seller will clear bank loan

In alternative deposit balance amount with bank which granted loan so that it can be used for repayment of loan after September

Ajay Sethi
Advocate, Mumbai
74388 Answers
4450 Consultations

5.0 on 5.0

You enter into an agreement with the seller to the effect that he will discharge the entire loan amount immediately after the lock in period expires i.e., in the month of September.

This is an additional precaution.

You may also hav a legal opinion from a lawyer in the local on other aspects to be safe.

You should not continue to do the same mistake hence at least now you may consult a local lawyer by producing all the relevant papers before him for a proper opinion and suggestions on further steps.

T Kalaiselvan
Advocate, Vellore
64348 Answers
834 Consultations

5.0 on 5.0

you should take possession immediately and send a legal notice.

Mohammed Mujeeb
Advocate, Hyderabad
15449 Answers
7 Consultations

4.5 on 5.0

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