• Auctioned a property through sarfaesi act

Hello Sethi,

I was the successful bidder for a property auctioned on November 14th 2018 by Bank of India. On Nov 13th 2018, Borrower got a stay for the auction and below is the content of the stay.

"The the sale is subject to outcome of judgement in SA ***/**** Pending before DRT II, ****where the borrower has been directed to pay Rs.30.00 Lakhs out of which Rs.15.00 Lakhs to be deposited within 1 week and another Rs.15.00Lakhs within two weeks thereafter, directly with the Bank and upon failure of any of these conditions, Bank is at liberty to issue the Sale Certificate in favour of the Highest Bidder of the auction sale conducted on 14.11.2018"

Borrower dint pay any amount as mentioned above. The hearing is still pending from the court. Bank got physical possession through district magistrate and gave me a sale deed today. Bank Manager is suggesting to hold on the stamp duty registration process until we get the hearing that is one month from now. I took 90 lakhs loan from SBI for the 1.25 crore property and SBI bank transferred the money to BOI. 

Please let me know how to proceed now, whether to go ahead with registration now ? or wait for a month to get to know the hearing?
Asked 6 years ago in Property Law
Religion: Hindu

3 answers received in 30 minutes.

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23 Answers

Borrower has failed to make payment of Rs 30 lakhs within period of 15 days 

 

2) no extension of time was granted 

 

3) bank was at liberty to issue sale certificate in favour of highest bidder 

 

4) since sale certificate has already been issued bank can register sale deed in your favour 

 

5) no need to wait for one month 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

As the borrower didn't make payment to the Bank therefore you are entitled for the property

Bank can issue sale certificate in your name and this is the only option available to the bank

Go for registration now, no need to wait for one month 

Suneel Moudgil
Advocate, Panipat
2386 Answers
6 Consultations

Borrower was given suffice t time to make payment 

 

2) he has failed to make payment within stipulated period hence bank was at liberty to issue sale certificate 

 

3) chances of court ruling in favour of borrower are bleak 

 

4) if at all it is done you would get refund of your money 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

You can go ahead with the registration of sale deed now as the borrower flouted the court order, despite being given ample time to make the payment. 

 

Siddharth Jain
Advocate, New Delhi
6617 Answers
102 Consultations

If the court rules the case in favour of the borrower, you can recover the amount paid by you to the bank from court.

Siddharth Jain
Advocate, New Delhi
6617 Answers
102 Consultations

If you don't get the registration done, the bank officials full also start asking for collateral in lieu of your loan amount.

So, there is no point waiting as the court orders were quite clear as to how the payment was to be made by the borrower, and consequences thereof.

Siddharth Jain
Advocate, New Delhi
6617 Answers
102 Consultations

After the auction, chances are very less that drt will entertain his petition.
Imp point- if at the time of auction if there was no stay, then no need to worry.
You will have to represent your self before the DRT informing that sale has become absolute hence no right remain for the Borrower.
As this is document based process, Better discuss with an competent advocate with all relevant documents to get precise advice.

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

If the court rules in favour of borrower you will have to appeal to DRAT. In this case when DRT has given clear order you don't need to wait for anything and registration can be done as there is no stay from DRT for Registration

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

Sale certificate is valid without registration stamp duty is only required so for that you can wait for a month and after next hearing you can pay same. since the borrower has failed to follow the order DRT may not rule in its favour so in this circumstance you should wait for next hearing after that you can pay duty and register it,

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

Yes bank issues sale certificate after the auction and it is valid without registration also duty needs to be paid.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

In that case bank has to refund the sale amount and the sale certificate shall be cancelled.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

chances are very weak that DRT will go in his/her favor but if something like this happens you will get your money back.

Suneel Moudgil
Advocate, Panipat
2386 Answers
6 Consultations

As the borrower has not complied with the stay conditions and the time allowed by the DRT lapsed please wait till the next date and then go ahead for the registration as some excuse for non payment will definitely be submitted by the borrower.

In case you go for the registration and decision goes in favour of the borrower, in that case you will have to claim refund of stamp duty which is going to take lot of time because bank will only refund the amount taken as a sale consideration

Vimlesh Prasad Mishra
Advocate, Lucknow
6851 Answers
23 Consultations

Borrower has failed to comply with court order to deposit the money with the bank, so no need to wait for hearing and you can proceed with stamping and registration 

Alternatively you can also apply to the DRT informing about default by borrower and failure to comply with court's order and thus seek directions from court how to proceed now. If court gives the go ahead, then you can proceed for stamp duty payment and registration 

Yusuf Rampurawala
Advocate, Mumbai
7899 Answers
79 Consultations

The court had specifically stated in its order that a very limited time is being granted to the borrower to deposit the money so that the property may be returned to him that was auction and was purchased by you. Now that the deadline has expired you and the bank should proceed ahead as the conditional stay is vacated and the auction purchaser is free to move ahead.

Therefore although the case is pending the temporary relief is no more and the case would be dismissed it would cause prejudice to to auction purchaser....ie you.

Move ahead with the registration.

Regards 

Rahul Mishra
Advocate, Lucknow
14114 Answers
65 Consultations

You are on the least risk because the conditions which are laid down in the order of the court has not been fulfilled then this has comes to an end now it does not exist till it replaced by another order, in my opinion don't wait for hearing and go for sale certificate, ask the bank to do so.

Koshal Kumar Vatsa
Advocate, Gurgaon
2282 Answers
3 Consultations

1. Collect the Certificate of Sale from the Bank.

 

2. Do not register the said certificate by paying the stamp duty now since the sale can be cancelleld also by the P.O. of the DRT.

 

3. Peruse  the copy of the S.A. filed by the borrower to understand how striong is the case of the borrower filed before the DRT.

 

4. If you find from the copy of the S.A. that there has been gross violation of the SARFAESI act while initiating the SDARFAESI proceeding, then it may be prudent on your part to seek return of the money paId by you to the selling bamk cancelling the sale certificate.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

Yes, it can not be a  deed but a saole certificate.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

1. If the DRT allows the S.A. filed by the borrower, the paryers mentioned in the said S.A. will be allowed.

 

2. The prayer certainly will be to for returning the property and cancellation of sale.

 

3. Your sale certificate will be cancelled authomatically and possession will be returned to the borrower/.mortgagor.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

Since the borrower failed to comply with the court order imposing the condition to deposit the said amount in order to facilitate stay of the auction sale of the property, it is not necessary to wait for the next hearing before DRT or any court because it is not going to bring any fresh stay order or any other order which may adversely impact your purchase, hence you may ask the bank to execute the registered sale deed in your favor since they have received the full sale consideration amount.

 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

The bank will give sale certificate only after receiving the sale consideration amount in full.

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

In that case the bank maybe approached for refund without handing over possession because the orders will be passed against bank only.

However there are no chances for such a decision at this stage

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

  1. As per the information mentioned in the present query, makes it clear that you have been somewhere put in a situation where you may have to bear some loses, and that is because of the fault of the bank.
  2. Auction date was one day after the borrower got the stay order, so bank should not have proceeded with it.
  3. And if the borrower will be able to clear the the dues then that property will only best to the borrower, but not to you as he acted on time.
  4. You would have to recourse to the court of law to seek your legal remedy from the bank and then bank will compensate your loses including the interest over the amount borrowed by you till the time you do not get any other property.

Sanjay Baniwal
Advocate, South Delhi
5477 Answers
13 Consultations

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