• Stopping the auction

A builder sold a flat(A3) to mr. X ,mr. X took a loan of rs. 25 lacs from bank of baroda as home loan and paid to the builder,the builder registered the flat(A3) in name of mr.X,
mr.X sold the Same flat(A3) to mr. Y ,though the flat(A3) was mortgaged in bank of baroda,mr.Y took a home loan of rs .28 lacs from bank of india as home loan and paid to mr.X along with margin money,mr X registered the flat(A3) in name of mr.Y(though mr.X didnot clear his home loan against the same flat(A3) in bank of baroda)

now mr.Y appraoched me and offered to sell his flat(A3),i paid him 4 lacs cash ,and paid rs 28 lacs straight into his home loan account by cheque in bank of india,the bank(bank of india) freed the flat from mortgage and handed over the original sale deed (sale deed from mr.X to mr.Y) to mr.Y, but mr.Y didnot register the flat in my name yet,me and mr.Y had an uregistered sale agreement according to which i paid the money and in agreement he promised me to register the flat(A3) which he didnt,however he gave me the physical possession of the flat(A3),
now the problem is ,after 2 years bank of baroda came and put 13(2) notice then 13(4) notice on my flat(A3) saying mr.X is defaulter in the loan,and they r going to auction the flat(A3) as it is mortgageg in their bank

Bank of baroda doesnt know the fact,that the flat(A3) mortgaged in their bank is sold to mr.Y through registered sale deed,and mr.Y sold that flat(A3) to me(under my possesion now)through unregistered sale agreement.

how can i stop the auction or put a stay on auction done by bank of baroda
Asked 4 years ago in Property Law
Religion: Hindu

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7 Answers

Sir you need to file an appeal before the DRT challenging the section steps of the bank and further file a complaint before the police station for cheating against the mr. Y . A flat cannot be mortgaged together there is default on bank also as mortgage was not.mutated in record further if original document with first bank how second gave loan. Proceed in DRT in appeal.under section 17 and get a stay on auction.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

You can file petition for injunction over e-auction.

But you need to know that Mr. Y needed to get NOC from bank of baroda for purchase of that flat. As he did not took it bank of baroda has right to auction that flat for recovery of dues. As the mortgagor bank did not gave Mr. X permission to sell the flat. Till the repayment the property belongs to bank and now they can auction it.

Abhilasha Wanmali
Advocate, Nagpur
1022 Answers
1 Consultation

4.8 on 5.0

Since X is defaulter of loan bank can auction the flat

2) bank can auction the flat fir non repayment of loan

3) X could not have sold flat to Y without consent of bank

4) you don’t have clear and marketable title to property

5) chances of stay being granted are bleak

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

the second sale between X and Y is invalid because it was done without consent and NOC of bank of baroda which had a mortgage charge on the flat

so bank of baroda is entitled to auction the flat to realise its dues

if you have funds then you can clear the bank of baroda's dues and stop the auction

later you can recover that amount from X

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

Dear Client,

You should file FIR agasint Y and X. Have you received the original sale deed executed between builder and Mr. X and Mr. X and Y.

as per my understanding, originals must be mortgage with Bank of Baroda. And without original if you executed the sale than you are at fault. Buyer beware.

Auction can be stayed , once possession is taken by bank than can file appeal agasint the possession in DRT.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

The drawback in your side is that you did not get the flat registered in your name through Y which would have enabled you to issue a reply notice to bank which has sent notice under section 13(2) of sarfaesi act, you cannot even file a petition before DRT seeking injunction/stay of bank's further proceedings under sarfaesi act in this regard.

The X is the culprit here who has failed to repay the loan to bank of baroda.

Equally fault lies on the part of Y and you also.

Y should have ensured that the X had discharged the loan fully with the Bank of Baroda.

You should have insisted to get the proeprty registered in your name once you paid the full sale consideration amount.

It also appears that you did not take any legal opinion about the property before buying it.

Mere taking possession of the proeprty will entitle you with the title of the property.

At this juncture, you have to catch hold of of your seller and ask him to pressurise the X to clear his outstanding loan or to lodge a criminal complaint agaisnt him with the police for cheating him about this.

However Y may not take any interest in it since he is not the loser as he has already obtained money from you towards sale consideration.

Your complaint agaisnt Y for not registering the property, with the police also may not be of any use to you because the police will keep off stating that this is civil matter.

You may discuss with a local advocate and take steps against Y for this.

There is no use in talking to Bank of Baroda about this because you have no locus standi to talk to them as you are not the borrower.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

Hi,

You may file a case at DRT opposing the action of the Bank of Baroda.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

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