Wrongly purchased a mortgage property
I did purchased a property in 15.01.2014 in kolkata area. While buying the same the owner provided missing diary copy of original title deed along with newspaper notice (English and Bengali), I also did carried out searchings and found everything ok. After purchase and registration done mutation also carried out and started living there with family after completing required renovation work.
On 27.11.2014, I have seen a paper notice that one of local bank has posted a pre-sale notice against my property number under SARFACI act. While checking then I found that some ''Minar Enterprise'' has taken a loan on 28.12.2012 against my property & seller is the company owner. I more found out that the said company established on Dec,2012 and the A/c opened with immediate sanctioning loan by bank. The entire money which I paid during my purchase was transferred on-line to the seller having savings bank A/C in the same branch. The bank has declared this property as NPA in July,2014 and bank allowed borrower/seller to withdraw all money from his saving a/c by SELF cheques form same bank and branch knowing that his other A/C is NPA without attaching his PAN number.
After knowing this I met with bank manager to make him know the current status and fact, but felt that he knew everything before my visit to him. Bank denied to co-operate and even refused to take any criminal action against the seller and stated pressurizing me in different way even politicly also to pay the NPA value which was not taken by me. Bank even knowing everything published a e-auction notice on 17.02.2015 and hide present encumbrance occurred without giving any intimation to me. One of the builder also involved in this conspiracy with bank manager and seller and all they are found to be good friends of each other.
I filled criminal suite against the seller as well as broker and bank manager and appealed civil court for permanent injunction on sale of this property in February, 2015. Both these cases are pending for trials.
Later I also came to know that on April, 2015 the actual borrower/seller has filled an appeal to DRT asking for time.
I know that a blunder has happened that I purchased this property with a certified deed copy. But need your view about my position and writes over this property in legal way.
Asked 11 months ago in Property Law from Kolkata, West Bengal
Hi, it is the clear case of fraud and you have already initiated the criminal proceedings against the vendor.
2. I don't think you have not taken the legal opinion form the advocate now you are in trouble.....as per law once the property is mortgaged then bank has every right to recover the mortgaged amount.
3. Allegation of fraud and other things subject investigation.
4. It is better contest the case in DRT and also civil court.
1) you have already filed suit and had sought injunction restraining bank from selling the property .
2) you have also filed criminal complaint of cheating against seller and the bank
3)you have to file intervenor application and move DRT and seek stay of auction of the property by the bank .
Now you have no other option than to file a case before DRT impleading the Bank and the vendor as respondents.
If the DRT is in your favor then an appeal with DRAT for remedy and relief.
Even if DRAT is not coming to your rescue, you may file a writ before high court seeking relief especially under the circumstances where you stand cheated by the vendor in collusion with the broker and bank manager.
In the meantime you may follow up the criminal and civil suits properly.
1. You file an application before the DRT implicating the Bank for not attaching the sale proceed you have remitted to the account of the seller maintained in the same Bank from where he had availed loan and the said loan account became NPA,
2. The Bank was supposed to attach the said Saving Account of the seller,
3. You are required to put pressure on the seller to clear his NPA account for which you should have lodged a police complaint against the seller for cheating you,
4. If absence of police inaction you should have filed a W.P. before the High Court against police inaction,
5. Now file an application u/s 156(3) praying for arrest of the seller for the reason that he is planning to run away after cheating you.
It appears you have already filed cases in court. Their nature and current status is required to be known for further advice.
Since you gave purchased mortgaged property you have no option but to face the hassles.
The criminal conspiracy of the bank and builder can not be ruled out.
The criminal cases need not be vigorously pursued.
If you could show me the papers as you seem to be from Kolkata I can certainly help you in this matter,
1. The basic law is that the rights and liabilities with respect to the property, unless there is an agreement to the contrary, are transferred from the seller to buyer. It is the duty of the prospective buyer, within the ambit of caveat emptor, to exercise due diligence to prevent the transfer of liabilities which he does not wish to shoulder as a corollary to transfer of title.
2. A mortgaged property cannot be sold except with the consent of the mortgagee. The bank should have filed a lawsuit to get the sale declared as illegal. The omission to do so raises many eyebrows with respect to the complicity of the bank in the sale transaction.
3. The criminal and civil cases filed by you are your only hope. You should continue them on merits.
4. The act of the seller in seeking further time from the property demonstrates that he never intended to transfer his liability to you.