1) file case of cheating and criminal breach of trust against builder
2) you don’t have clear and marketable title to property as flat was mortgaged by builder before sale deed executed by builder in your favour
Builder mortgaging alloted flats but mortgages before registration
Builder enters into sale agreement of flat under construction, get full consideration on stagewise completion, makes flat allotment in year 2008.The flats are registered in 2019 and gives possession in 2024 but in year 2015 builder mortgages the general premises where the flats were constructed and alloted Builder defaults after part payment of loan Mortgager gets DRT award to take physical possession of property what right do the flat buyer have when neither the builder nor the Mortgager inform the flat buyers at the time accepting property on mortgage
Asked 8 months ago in Property Law
Religion: Hindu
13 answers received from multiple lawyers
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13 Answers
since I have paid the full consideration on the flat as per sale agreement and got flat allotted in 2008 , and registered in year 2019 in registrars office in Mumbai can the mortgage deal in year 2014 be treated as null and void as far as flat owners are concerned
Asked 8 months ago
Mortgage would not be treated as null and void
If it’s a registered then you need to move for cancellation of the same
Since you paid full amount and were allotted the flat in 2008, well before the builder mortgaged the property in 2015, and later registered the flat in 2019, you are legally a bona fide purchaser. The mortgage created after your allotment cannot override your rights, especially since neither the builder nor the bank informed you.
You can:
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Challenge the DRT order – showing your prior allotment and registration.
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File a suit or writ petition – to declare that the mortgage is not enforceable against your flat.
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Complain to RERA or Consumer Court – for builder fraud and concealment.
Your flat ownership is protected by law, and the bank cannot legally take possession of it.
Do you want a draft of the notice or petition?
The builder cannot execute the registered sale deed on your name in the year 2019 when he had mortgaged the property in the year 2015.
This is a criminal offence of cheating to suppress the fact of mortgaging the property at the time of registration of sale deed in your favour.
You can lodge a criminal complaint against the builder in this regard.
You can also file a stay petition before high court to stall the DRT proceedings on the basis of registered sale deed in your name.
The mortgage of the property was done prior to execution of sale deed in your favour.
Hence the mortgage deed cannot be declared as null and void.
In the above mortgage dated Dec 2015 of the land and building comprising 10 floors and 42 flats one buyer had purchased 4 flats , paid in full and registered his four flats in the year 2014 before the date of mortgage is the mortgage deed valid when the builder did not have the right to mortgage the four flats of this buyer and the mortgagee mentions in the mortgagee deed that all title papers were given to them .Some buyers also got bank loans against their property registered post mortgage date that escaped the bankers scrutiny
Asked 8 months ago
Mortgage deed is not valid for the 4 flats
it is bankers fault for failure to do due diligence befire sanctioning loan
No the mortgage deed executed after execution of registered sale deed is invalid and the bank cannot claim the repayment of loan from the person who had not obtained mortgage loan or if it has not scrutinized properly related papers before granting mortgage loan against the property.
It’s not valid but for challenging the same you need to take legal step can’t be done unilaterally
1) Year 2007 I enter into agreement for from a builder in Mumbai for purchase of a 2 bhk in 6th floor . 2) year 2008 Make all the payments that are demanded by the builder amounting to full agreement value of the said flat 3) August 2008 the builder hands over allotment letter of the said flat to me 4) Year 2019 The above agreement was registered in Registrars Office in Mumbai 5) if the builder refuses to hand over the said property to me 2025 do i sue him to get the property or the amount paid to the builder as per the sale agreement 6) IN WHICH YEAR THE SAID PROPERTY OWNRESHIP RIGHTS GOT TRANSFRRED FROM THE BUILDER TO ME
Asked 8 months ago
You should sue the builder to direct him to hand over vacant possession f flat
2) in alternative seek refund if money with interest
3) in. 2019 when agreement is registered you become owner of flat
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Ownership Transfer:
Your ownership rights legally began in 2008 when:-
Full payment was made
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Allotment letter was issued
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Mortgage Invalid Against You:
Since the mortgage in 2015 happened after your allotment and full payment, it cannot override your rights. The builder had no legal right to mortgage your flat. -
Legal Remedies:
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Challenge DRT order showing proof of prior allotment/payment
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File suit in civil court or writ in High Court to declare mortgage unenforceable on your flat
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Complain to RERA or Consumer Forum for fraud and non-disclosure by builder
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Refusal to Give Possession in 2025:
You can sue the builder for possession or seek refund with interest and damages.
Yes you can file Consumer complete him and seek compensation as well as seek refund if you want with interest
Once the property was transferred to your name by executing a registered sale deed, you have become an absolute owner of the property with clear and marketable title to your name.
You may insist on physical possession immediately.