We registered JDA & GPA to construct residential building with 50% constructed share in place of my duplex house of 1500 Sq ft. with separate car garage & garden. The Builder/Developer provided the alternate accommodation on rent since April 2017. The builder sign rent agreement with the owner of rented property & agreed to pay monthly rent till the completion of building. The builder is not regular in paying the rent too due to finance problem hence my self paying the rent most of the time. The builder supposed to complete the project in 12 + 6 months time , The demolition & construction started from June 2017. The work was going extremely slow till Jan 2018. We hand deliver formal notice to him on 27 Jan 2018 to speedup the work but builder completely stop the work in march 2018 due to finance problems. We again hand deliver the legal notice on 08 oct 2018 & worn him to dismiss the JDA & GPA due to not completed the project in given time scheduled of 18 months as mention in JDA. We were in the process to dismiss the JDA & GPA & suddenly seen SARFAES Act 2002 notice u/s 13(2) in local newspaper against our builder. We shocked to see our property listed as secondary collateral along with 4 others properties. The builder use his 50% of undivided share as collateral to borrow construction loan for some other property without our concern & that account tern NPA in 31st DEC 2018. The builder completed only 15-20% of constructions & our share is undivided till the date. The bank already initiated action under sarfaesi act & serve 60 days notice u/s 13(2) to builder. we are neither a borrower nor a lender but serially affected by sarfaesi act initiated by the bank to recover their dues. Please advise 1) how can i safeguard my 50% of undivided share in this circumstances from sarfasi act or Bank ? 2) Bank already filled caveat against builder on 11 Jan 2019 , can we also file caveat against bank though we are neither a borrower nor a lender but serially affected by sarfaesi act ? 3) Is it possible to stay SARFASI proceedings if Bank go ahead without safeguard my 50% undivided share ? 4) Is it possible to force bank to auction primary property first & if the bank dues are not recovered after primary auction then only bank can proceed for secondary collateral ? 5) Any other suggestions for immediate relief.
1) is project regsitered under RERA
2) you can revoke your POA and terminate agreement with builder as he has failed to complete project on time
3) file complaint against builder for cheating , criminal breach of trust under section 406, 420 of IPC
4) if bank seeks to auction your property file application before DRT and seek stay of auction proceedings as builder has used his 50 per cent share as collateral to borrow construction loan without your consent
Dear Sir,
My answers are as follows:
1. how can i safeguard my 50% of undivided share in this circumstances from sarfasi act or Bank ?
Ans: If the case is pending before any authority like Debt Recovery Tribunal (DRT) or any other authority then approach them and pray for necessary relief.
2. Bank already filled caveat against builder on 11 Jan 2019 , can we also file caveat against bank though we are neither a borrower nor a lender but serially affected by sarfaesi act ?
Ans: Yes, you can file another Caveat.
3. Is it possible to stay SARFASI proceedings if Bank go ahead without safeguard my 50% undivided share ?
Ans: The proceedings under SARFASI Act are summary in nature but it depends upon facts of each case and convincing capacity of your high profiled advocate.
4. Is it possible to force bank to auction primary property first & if the bank dues are not recovered after primary auction then only bank can proceed for secondary collateral ?
Ans: It is left to the Bank discretion and you cannot direct the Bankers however you may impress upon the Tribunal to issue such directions to the Banker.
1. Chances are remote but you can try to move an application before the competent authority.
2. Yes.
3. Only way is to file a Writ Before the Hon'ble High Court.
4.You can't guide the bank.
5. Go to Hon'ble High Court otherwise all other actions will waste the time.
1. you can make an application to DRT as an aggrieved person who is aggrieved by the action of the bank
2. bank is not going to file any case against you as you are not its borrower. So need to file any caveat
3. if the bank's notice affects your land or your undivided share in the new building to be constructed then you can obtain a stay by making application as per point 1
4. bank cannot auction the primary property ie your land because builder did not have ownership rights in the land. He was only granted development rights. What the builder appears to have mortgaged is his undivided share in new flats which will come to his share
5. as above
1. You can approach DRT or civil court with an injunction suit restraining the bank from initiating any legal action to take possession of this property for any reason since this was fraudulently offered as collateral by the builder who has no authority or interest in the property.
2. You can file an injunction suit itself directly instead of filing a caveat against the bank and then the suit.
3. You have to approach either DRT or the civil court for stalling the proceedings initiated by bank in this regard by presenting the concrete evidences and strong grounds that you rely upon.
4. That is not under your purview and no such application would be entertained from your side.
Immediately file a petition in HC and seek for directions from the court on above issues.
