• Land Sale deed executed by court on which bank loan exists

I did an non registered sale agreement with a person X in 2017 using Rs.200/- stamp paper by paying one fifth (1/5) of total amount. Mr.X couldn't execute the sale deed in the specified time. So extended on his demand and in between I paid 3/5 of total amount through bank transfer and cash. So totally I paid 4/5 of total amount. 

In 2020, I found some attachments and i filed a case against him before 3 years of first date of agreement.
In 2022, court ordered in favour to me, I paid the balance amount through court. And In 2023 court has executed the sale deed on behalf of Mr. X in his absence. i have got possession certificate and paid land tax.

In 2024, one NBFC has filed a case because, Mr.X has borrowed from them using this property in 2019 and he hasn't paid the monthly instalments. So they got court order to acquire land under sarfaesi act. I objected this and they couldn't acquire the land.

Could you please suggest me, do I have more right than bank as per law , since my agreement is before mortgage, He hasn't informed me or court about the mortgage at any point of time. I possessed the land through court order and judge has executed the order in the absence of Mr.X. After I am getting possession bank started there process of acquisition.

If there any previous orders in cases similar to this, please refer them to me.
Asked 7 months ago in Property Law
Religion: Other

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8 Answers

If you have the physical  possession of the property vie a registered sale deed executed by court in your favor, then the NBFC cannot do anything about it except to catch hold of the borrower because, they have not impleaded themselves as a party to the suit neither they have taken any steps when you filed the execution petition too.

You can file a suit for permanent injunction against the bank to restrain them from interfering in you possession and enjoyment of the property that you acquired through a registered sale deed.  

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

Your right is secured through court. Here the case needs to file filed against X for cheating and fraud. 

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

An unregistered agreement to sell, executed before the seller mortgages the land, will not invalidate the subsequent mortgage in favor of the bank.

2)The mortgage, being a registered document, takes precedence over the unregistered agreement

 

3) sale deed is subsequent development 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

The issue in your case is un registered agreement for sale was executed prior in time .had registered agreement for sale been executed you would have a good case 

 

2) mortgage is registered document and would prevail over the un registered agreement for sale 

 

3) it is the seller who has cheated you and failed  to disclose that property was already mortgaged when court passed orders for execution of sale deed 

 

4) you can raise it as defence but your chances of success are bleak 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

If a borrower defaults on their loan, the NBFC can initiate SARFAESI proceedings, which can include taking possession of the secured asset and selling it through auction. 

A registered sale deed normally signifies that the property has been transferred to a new owner. However, if the NBFC holds a valid security interest on the property and the borrower has defaulted, the NBFC's claim takes precedence. 

However, in your case, it was not the owner who had executed the registered sale deed in your favor but it was by an order of court.

Moreover, since the property was mortgaged but the NBFC has registered only the memorandum of title deeds alone, you may not find a reflection of this transaction in the encumbrance certificate.

In all the probabilities, you were not in the knowledge of the so called mortgage loan even at the time of getting the property registered to your name through a court order. 

The suppression of the fact of the registration of property to your name by the owner to the NBFC  and suppression of the fact of the property being mortgaged to NBFC  after entering into an agreement with you, is a criminal offence and both you as well as the NBFC can initiate criminal actions also against him, but for now you have to defend your interest by stating that the property was already transferred to your name by a registered sale deed through court especially even before the NBFC had declared the account as NPS and before invoking the sarfaesi act , hence you may take shelter on this point and defend your interest properly in the court proceedings. 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

Dear Sir/Madam,

In the facts and circumstances mentioned by you, your property is safe to the much extent. But, you are suggested not to sit idle, rather submit the police complaint alleging the seller/ Mr X for committing fraud with you and the bank and without informing you mortgaing the said property. It is quite possible that police will collect the requisite information regarding other assets/property of Mr X and the NBFC may recover the amount through that property leaving your property untouched.  

 

Ganesh Singh
Advocate, New Delhi
7169 Answers
16 Consultations

Based on the facts you provided, you have a stronger claim than the NBFC, because:

 Key Points in Your Favour:

  1. Your sale agreement (2017) is prior to the bank’s mortgage (2019).

  2. You filed a civil case before the mortgage, and the court executed the sale deed in your favour in 2023.

  3. You have possession, tax receipts, and court-backed sale deed.

  4. The bank did not verify encumbrances properly or inform the court.

 What the Bank May Argue:

  • Their mortgage was registered, while your initial sale agreement was unregistered.

  • Under SARFAESI, registered security interest often gets priority (as seen in Sri G. Gopala Rao vs UBI).

But in Your Case:

  • The sequence is reversed: your agreement predates the mortgage.

  • The court has already ruled in your favour, and the sale deed is judicially executed, not by the seller.

  • You can cite principles of equity and prior possession, and the doctrine of lis pendens under Section 52 of the Transfer of Property Act.

Suggested Action:

  • File a detailed objection before DRT under Section 17 of SARFAESI Act.

  • Include:

    • Your court order,

    • Possession certificate,

    • Tax payments,

    • Timeline proving your claim precedes the mortgage.

Case Law That May Support You:

  • K.J. Nathan v. Maruthi Rao – SC emphasized equitable ownership via possession and payment.

  • Vidhyadhar v. Manikrao – reinforces validity of court-decreed sale even if against third-party claims.

Final Note:







You have a strong case to retain the property, provided you act quickly and legally challenge the NBFC's claim in the DRT. A property lawyer experienced in SARFAESI cases can help you frame the right objection.

 

 

Shubham Goyal
Advocate, Delhi
2070 Answers
14 Consultations

As you have courts order you can seek execution if the same and take possession 


if you need any detailed consultation you can contact me through kaanoon

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

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