• Agreement of sale as well property is mortgaged by bank

Hello Sir/Madam
 Two registered agreements with me and sellers for a house on 22 Jan 2018.
Property is a single house constructed on 2 piece of land one belong to x other to Y (Spouse).
Theey hide a fact that property is mortgaged with a bank in 2015.
After 1 month I came to know that they made a big fraud with me.
Now Sellers are absconding persons.
Loan liability belong to x but y is guarantor. As per cibil records.
Details of hypothecation is not registered with registrar office nor with cersai.
When I contacted to bank they replied that information to any one or both institute is not mandatory. Not with sub registrar nor with cersai.
However I approached to bank to settlement in a legal manner. But they are going to auction.
Can I go for legal stay against auction. 
Can bank settle the matter with me with mutul agreement.
Kindly help me on this matter.

Dev
Asked 4 years ago in Property Law
Religion: Hindu

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15 Answers

Dear Sir, you should immediately proceed towards filing an OA (original application) in the Debt recovery tribunal against the bank and the two persons for saving the property from being auctioned. You should forthwith get the stay order on such auction. Moreover, you can file a criminal complaint also pertaining to the fraud made against you.

Mayank Sapre
Advocate, New Delhi
256 Answers

5.0 on 5.0

Hello

Register a FIR against those persons...you must be knowing their places of residence. Also due diligence should have been conducted by you before buying the property however, in this case you have been defrauded and hence you could file a wrutvoetition in the allahabad hc for stay and complete fair investigation into the matter by the bank. May be the seller sold you the property with the connivance if the bank officials which often happens.

Regards

Rahul Mishra
Advocate, Lucknow
13759 Answers
65 Consultations

5.0 on 5.0

Hello,

Since they have mortgaged the property legally they can only settle there mortgage.

You are at liberty to file a case of cheating and fraud against them.

However, if proper title search was made by you, you may take it as a defense and present a case before the DRT so that the property auction is stayed

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

However chances of the same is very bleak.

Get in touch with a local able advocate so that steps can be taken well in advance,

regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

This is my response to you:

1. You must firstly file a police complaint/FIR under section 34, 406, 420 and 425 of IPC against the accused persons;

2. Then you must make sure that investigation is completed within time;

3. If not then approach magistrate and HC also to speed up the process;

4. Once you do the same then ask the court where your case is pending to make the two absconders a party;

5. Consult a local lawyer who practices in the criminal side and take legal actions against the absconders.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

1) for sale of property by sellers bank consent was necessary

2) you have to suesellers to recover your money

3) since bank consent was not given nor loan repaid bank can sell property by auction

4) you can bid for property in auction

5)court may not stay the auction

Ajay Sethi
Advocate, Mumbai
87938 Answers
6207 Consultations

5.0 on 5.0

Bank would not settle with you unless you clear the dues

It is better you bid in auction for purchase of property

File caseof cheating against sellers

Ajay Sethi
Advocate, Mumbai
87938 Answers
6207 Consultations

5.0 on 5.0

Approach DRT and seek stay on auction.

Request court to direct recovery proceeding agasint guarantor.

Settlement terms possible with bank and if bank not agree than offer proposal before DRT than court will ask the bank to consider your proposal.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Yes. You can go for stay over auction and can demand mutual settlement.

Abhilasha Wanmali
Advocate, Nagpur
1022 Answers
1 Consultation

4.8 on 5.0

Even if you want to discharge the mortgage loan, the bank cannot release the documents to you since you are not the borrower.

No doubt you can approach court or DRT to obtain stay of all proceedings that is initiated by the bank for recovery.

Have you lodged a criminal complaint against this fraudulent activity by your vendors?

If not do it immediately which will be useful for you to initiate the stay proceedings.

T Kalaiselvan
Advocate, Vellore
78096 Answers
1543 Consultations

5.0 on 5.0

It is upti bank to accept your offer to repay loan amount

2) if bank is able to recover excess amount in auction bank would not pay you the excess amount

Ajay Sethi
Advocate, Mumbai
87938 Answers
6207 Consultations

5.0 on 5.0

Dear Sir, you being a legal party can move to the court to declare that we have first right of refusal in case auction takes place. If the bank wants to sell it off it can do so by taking money from you and settle it off, as.you are the interested party before anyone else.

Mayank Sapre
Advocate, New Delhi
256 Answers

5.0 on 5.0

Better go for settlement, excess amount will go to actual defaulter not you.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

It depends on the bank to agree for your settlement offer or to go ahead with their e-auction program for recovery of loan amount.

In the event of bid/sale amount is in excess of the actual loan amount, the bank is bound to return the excess amount to the borrower

T Kalaiselvan
Advocate, Vellore
78096 Answers
1543 Consultations

5.0 on 5.0

No you can not claim any money from the bank if they receive excess payment

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

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