• Mortgaged property cooperative bank and EC time lines

My father( passed away in 2010) had purchased some agricultural lands down South in Tamilnadu near Sattur in 1995. We found a buyer and gave an EC which was taken in 2007 from 1987 i.e 21 years. The buyer went ahead and took an EC from 1975 to 1986 where some of the Survey Numbers were shown to have been mortgaged from 1975 to 1979. We found out that these loans were from a cooperative bank and have been waived off by the government. My question is since the land was sold to us without any discharge of the mortgage (we were not aware of it since the EC taken that time was after the mortgages were taken), is it necessary to go back so many years and go through the hassle of getting the mortgage released. Are there any risks to the buyer if we sell it based on the EC from 1987. Isnt there a min number of years for EC that is acceptable for sale of Agricultural lands. The person who sold the lands is willing to sign any document if it can help sell the lands.
Asked 3 years ago in Property Law
Religion: Hindu

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13 Answers

There is no need to get the mortgage released by the coop bank now that its debt itself is time-barred. However, it has to be ensured that no suit is pending against the mortgaged property and there is no attachment as on date.

Swaminathan Neelakantan
Advocate, Coimbatore
2152 Answers
20 Consultations

4.9 on 5.0

Hello,

 

though a good time has elapsed still it will be better if you may get the mortgage released. The same will though not make any difference now.

 

regards

Anilesh Tewari
Advocate, New Delhi
17943 Answers
377 Consultations

5.0 on 5.0

It is always advisable to take detailed title search of the property 

 

2) if you sell the land to purchaser you must execute indemnity bond to indemnify him If any claims are made for said land in question 

Ajay Sethi
Advocate, Mumbai
89092 Answers
6362 Consultations

5.0 on 5.0

If he is ready to sign take a registered indemnity bond from him stating that any charge,  lien or mortgage will be his liablity and he will make good any loss in future. 

Prashant Nayak
Advocate, Mumbai
28106 Answers
93 Consultations

4.4 on 5.0

If buyer is ready to purchase from you after executing indemnity then you can proceed. 

Mohammed Mujeeb
Advocate, Hyderabad
19032 Answers
32 Consultations

4.5 on 5.0

A mortgage is always a mortgage and a liability to repay on the part of the borrower.  It shall be lawful to discharge the mortgage money and enter into sale.

Regards 

G.Rajaganapathy 

Lawyer 

High Court of Madras 

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

1. ideally the mortgagee should be made a confirming party in the sale agreement to be signed between you and the buyer

2. however if the mortgagee is not available then if you can get hold of the mortgagor then he can sign as confirming party stating that the loan availed by him from the co-operative banks stand duly discharged

3. also the notifications or circular or order under which the said loans came to be waived can be attached to your sale agreement

4. this would give adequate protection to the buyer

5. a public notice can also be issued informing about the waiver of loan transactions touching your property and also informing them about the intended sale and inviting objections against such sale

Yusuf Rampurawala
Advocate, Mumbai
6999 Answers
79 Consultations

5.0 on 5.0

Generally when sale agreement is taking place related to a plot, it is better  to have at least 30 years of EC .In your case,as you are having more than 30 years of EC,it is sufficient.But as you mentioned that the particular land is under mortgage for certain period,it is better to take  release certificate from the bank,if it's possible.As it's a very old transaction ,it's bit difficult to find it.But make a try.

Seshukumar Kuchibhotla
Advocate, Hyderabad
57 Answers

5.0 on 5.0

The mortgage loans availed on the landed property have to be discharged or there should be an endorsement that the loan have been waived hence there is no due against this property and the same should be reflected in the the register held by the regeneration department so that it can appear in the EC accordingly.

You may ask your vendor to get a No due certificate from the bank and also to execute the entry before the registrar so that the problem is solved instead of stretching the issue by asking irrelevant questions on this, because rule says that the property should be free from encumbrance whereas this appears to be an encumbrance hence the buyer may hesitate to buy to avoid risking his property being attached by the bank at a later stage

T Kalaiselvan
Advocate, Vellore
79250 Answers
1618 Consultations

5.0 on 5.0

You can file a suit and take direction from the court for the aforesaid issues

Prashant Nayak
Advocate, Mumbai
28106 Answers
93 Consultations

4.4 on 5.0

You can execute indemnity bond to indemnify purchaser in case any claims are made by third parties 

 

it would protect purchaser interests in case claims are made 

Ajay Sethi
Advocate, Mumbai
89092 Answers
6362 Consultations

5.0 on 5.0

Was the other wife a legally married one? If not, there is no need to obtain her NOC. She will not legally inherit any asset. However, her son will be entitled. Explain the factual position to the bank and request them not to insist on NOC from them. NOC from the bank is not absolutely required if you have proof of the loan being waived and in view of the fact that any claim on the mortgage is legally time-barred. 

Swaminathan Neelakantan
Advocate, Coimbatore
2152 Answers
20 Consultations

4.9 on 5.0

Your suggestions may be rejected by the lawyer of the buyer.

What if he imposes plenty of such legal conditions?

In case of any difficulty to get NOC then you may issue a legal notice to all the heirs in this regard and drag them to court if they refuse to oblige.

If they dont turn up to court then you may get an exparte order so that your job will become easy.

 

T Kalaiselvan
Advocate, Vellore
79250 Answers
1618 Consultations

5.0 on 5.0

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