• Undivided joint property mortgaged to bank of one of the owners

My self and my brother owns a undevided residential house in joint names which is ancestral property mutated in our names through registered Will executed by my grand father.  Now my brother without my consent has mortgaged the house and acquired loan on the property for his business purpose and has become defaulter in 2000.  Bank has moved to DRT for recovery and DRT has decreed the amount and bank has moved for auction of entire house in the year 2003.  After knowing this I have given a petition to Recovery Officer, DRT in  thear 2004 to stay the auction since I am joint owner and bank has no right to auction entire house and pass on 50% sales proceeds to me. Now, again bank has approached DRT for auction of house.  Please advise me what is remedy for me to save my property?  Whether bank's action of giving loan on joint property is legal?  Whether bank has right auction entire property and pass 50% of sales proceeds to me?  Kindly give me a detailed reply, I shall be ever thankful to you.
Asked 2 years ago in Property Law from Hyderabad, Andhra Pradesh
what was result of your intervenor application to RO? what orders were passed by RO . if your application has been rejected file an appeal against said order before DRT
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
whether stay granted or not and whats outcome of your intervenor application if not allowed then file appeal in DRT
S.P. Srivastava
Advocate, New Delhi
703 Answers
13 Consultations
4.8 on 5.0
bank can definetly auction your property and pay 50% of the amount recovered to you.
it is rather better that you sell your property in market and pay the amount from your brothers share
Rajeev Bari
Advocate, New Delhi
1506 Answers
92 Consultations
3.5 on 5.0
In the first instance the bank has erred in giving loan to your brother when the bank has not taken your concurrence for sanctioning loan on undivided joint property and you are also one of the owners. You can bring stay on the bank's decision to unilaterally sell your right on the property. However the bank has got every right on your brother's share of 50% and the bank can not touch your share of 50%. The bank's action of giving loan, on joint property, to one of the owners when the property is owned by more than one person is illegal. Because the property is undivided the bank has decided to auction the entire property and give 50% proceedings to you.
Shashidhar S. Sastry
Advocate, Bangalore
1242 Answers
59 Consultations
5.0 on 5.0
1. Few things are not clear to me,

2. Bank will not mortgage any property held in joint name without taking signatures from both the owners on documents showing both of them as mortgagors,

3. Make sure that your brother has not created such document duly faking your signature. If he has done son & Bank comes to know about it,, they may be compelled to lodge a FIR against your brother,

4. When Bank will apprach DRT by filing an O.A. u/s19 of Recovery of Debts Due to Banks & Financial Institutions Act, 1993, it is the Recovery Officer of the DRT who, after receiving the Order from the P.O., will arrange to conduct the sale of the property. Bank will not sell the property in such cases,

5. Now if you fined that the Banbk has mortgaged the property without your consent, then file an application before the R.O. to stop his step since it is your property also,

6. The R.O. Will certainly reject your petition when you will get the chance to go to the P.O. u/s30 of the Act for relief,

7. If R.O. rejects your application, you can go to DRAT u/s20 of the said Act for relief,

8. If DRAT also rejects your petition, you can file an application before the High Court praying or relief.t
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0
A. You are the one of the co owners of the property, hence legal proceedings will not stand against you completely..

B. How Bank mortgaged the property with out obtained your consent is so arcane ?

C. Unless scrutinized the orders which is passed by the RO and DRT, we cannot come to perfect conclusion in your case.

D. Notwithstanding anything herein contained, bank has right to recover the 50% amount on the property.

E. Kindly file your objection before DRT by divulging material facts as early as possible.
B.T. Ravi
Advocate, Bangalore
736 Answers
30 Consultations
5.0 on 5.0

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