Bank can only take action against the secured properties only.
NPA
Dear sirs, I stood as a guarantor for a loan availed by a pvt ltd company in which my uncle and his son are directors.Due to losses in business the account was classified as NPA on 29.10.2018.The bank had mortgaged properties belonging to my uncle and me as collateral.However the market value of the properties is lesser than the loan availed.The bank issued a notice under section 13(2) on 2/12/2018 to my uncle and me under sarfaesi act with regards to the secured properties.Around three days prior to my receiving the notice by registered post i had transferred my unsecured properties to my son by way of registered gift deed.My questions are: 1)Can the bank file a suit against me saying that i transferred the unsecured properties with an intention to defeat or delay the creditors(bank) and to declare the gift as null and void under section 53 of transfer and property act. 2)can the bank file an insolvency petition against me to declare the transfer as fraudulent transfer 3)does the gap of three days between the gift deed and serving of the NPA notice on me act towards my safety? P.S The bank has not sent me any notice regarding the unsecured properties till now.
Asked 7 years ago in Property Law
Religion: Hindu
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12 Answers
Hi
Its good that you transfered the properties prior the notice.
Its Valid.
But beware that if you dnt have any property to back your guarantee to the bank then other consequences may be faced.
Also the property you transfered to your son can be scanned . Thank You
1. See under sarfesi bank cannot challange or ask for unsecured assets of gurantor as the gurantee is extended up to value of the secured assets.
2. No insolvency petition against you is maintainable.
3. Yes it will but there is no need bank cannot unsecured assets.
As per the extant acts, legal heirs are responsible for the debts of parents to the extent of the property inherited by them from such parent.
1. No. In the proceeding under SARFAESI Act the bank is bothered about the secured property only. It is not after the guarantor as yet and hence your actions is not to be put under judicial scrutiny at this stage.
2. No, this is not a fit case where a proceeding under Insolvency Code can be filed.
3. Even if it was of same day then also there was nothing to be worried about.
Bank can file suit that transfer of property was done to defeat claim of creditors
2) gap of 3 days would no t save you
3) you were aware that principal debtor has failed to make payment and account was being declared NPA
1. Since this is an unsecured property, the bank cannot invoke Section 53 of the TP act.
2. No, why should bank file an IP against you.
3. Since this is an unsecured property the bank cannot lay its hand once it has been transferred by you even before you got the notice.
My question is not regarding the secured properties.My question is whether the bank can file a declaration suit in the Civil court for setting aside the gift saying that I did it after coming to know that the account was stressed.Also after providing guarantee I had verbal communication with the bank manager requesting him to limit my guarantee.In this regard he gave me a letter on the bank's letter head saying that my personal guarantee is restricted to the secured properties.But the problem is that he is denying now that there is any such letter in their records.My question is whether a letter signed by the AGM of the bank on the letter head of the bank is enough proof for me that the personal guarantee of mine was limited to the secured properties. Regards
Asked 7 years ago
Since the property which you have already transferred is not a secured property, the bank cannot file any sit against the property which is not available with the guarantor as on the date of issuing the notice to the guarantor.
I think you are worrying more than the bankers themselves and your own anxiety will become fatal to your own case i.e., unnecessarily asking about this to the bank will waken them up on this issue, instead, since you have that letter from bank, you may challenge their case, if they file any on that basis and on merits.
If you have letter from area general manager that your guarantee is limited to secured properties then it would be binding upon bank
See any case the guarantees are limited further the transfer shall not be termed invalid as the notice was not received. Further unsecured assets are safe.
1. No suit for such declaration of gift deed as null and void can be filed by bank.
2. This is not enough. An agreement in clear terms is required to be there to fasten you with the liability of fulfilling obligation of personal guarantee.
If the guarantee given by your covers the said asset or you have given an unconditional guarantee in writing for his loan they will initiate civil proceedings against you