• Buying mortgaged property

Dear sir
I bought a first floor in a building in Gurgaon in December 2013
I came to know just now that the owner of land had taken loan from DHFL on that plot and made the building and sold me first floor 
The ground and second floor is still with the land owner 
He defaulted on the payment and now the bank got possession of the whole building under surfaci law section 14
What an I do now as they have also sealed my first floor
Asked 10 months ago in Property Law from Gurgaon, Haryana
Religion: Hindu
1) you have to file application in DRT for setting aside order of attachment 

2) you have to mention that you are bonafide purchaser of value and flat was purchased by regd sale deed 

3) that first floor was not mortgaged to housing finance company and order of attachment be set aside 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
You are bona fide purchaser of the flat and you can well contest the SARFAESI proceeding for which you have to file an application u/s 17 of the Act before the DRT for getting the injunction vacated.
Devajyoti Barman
Advocate, Kolkata
5154 Answers
54 Consultations
4.9 on 5.0
It seems that you purchased the property without conducting due diligence. A property under mortgage cannot be sold during the subsistence of mortgage except with the prior consent of the mortgagee. The bank is entitled to recover the possession of the building, but you can move the DRT to seek a stay order against the bank on the ground that you purchased the property without knowing the defect in title. This apart, a lawsuit against the owner for refund of the sale consideration with compensation can also be filed. 
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
If there is a loan or mortgage the first charge of the property goes to Bank. Now only the remedy is fie a claim petition before DRT and pressurize your builder to settle the dues.You can also file damage suit and suit for recovery of money against the builder. 

The bank is entitled to recover the possession of the building under the surfaci Act.The same time the law will provide the opportunity to seeking a  stay order against the bank 
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
1. Your Vendor has acted illegally and cheated you by selling the mortgaged property to you,

2. Mortgaged property can not be sold without the NOC issued by the mortgagee Bank which you have not collected,

3. Lodge a police complaint against the Vendor for cheating you by fraudulently selling the mortgaged property to you,

4. Also file a complaint case before the local District Consumer Dispute Redressal Forum alleging deficiency in service and unfair business practice claiming refund of the entire amount with registration charges and interest, damage and cost.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
Hi, before purchasing the property you have to verify the documents and proceed further and I don't think you have taken legal opinion from the advocate.

2. It is better you can approach the DRT so that you will get some relief.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
I presume that the Bank did not issue notice to you and you did not get opportunity to appeal before the DRT.
At this stage you can file a writ petition in the HC challenging the order of DRT. The Bank was in knowledge that the mortgaged land had been converted into four storey building and each floor is in possession of independent owners/tenants. It ought to have served notice on you as well. 
You can also file a suit of recovery on the seller beside a criminal complaint of cheating against him.   
 
H. S. Thukral
Advocate, New Delhi
514 Answers
125 Consultations
5.0 on 5.0
1) bank will not accept payment  from you 

2) builder has to clear bank dues . 

3) builder should write to bank and make offer under OTS (one time settlement) that he is willing to pay bank dues and has ready buyer for the property. 

4)request bank to give NOC and that sale proceeds made by purchaser would be deposited in court 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
1. This might lead you to a dangerous trap if  NBFC is not brought in to the loop,

2. NBFC is holding the Title deed of the building and your Vendor is the title holder of the said building,

3. What will you do if the NBFC releases the original title deed to the owner after receiving the payment from you and the owner does not handover those mother deeds to you?

4. Moreover, the sale made to you is illegal without taking NOC from the Mortgagee,

5. You can ask the builder to hand you over a NOC of date prior to the date of your registration,

6. Act very carefully.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
Hi, without co-operation from the bank you can't purchase the property.

2. Ask the land owner to arrange for short term money and clear the dues and then you can purchase the property.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
The property is still under mortgage, so if the bank is not ready to permit you to substitute yourself in place of the builder to pay the remaining loan then you can apply to Debt Recovery TRibunal for a stay order against the sale of property by the bank. The bank can sell the property at a throwaway price and apply the sale proceeds towards the repayment of loan. The DRT may permit you to repay the loan to release the mortgage. Do not buy the remaining property unless the mortgage is cleared.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
He defaulted on the payment and now the bank got possession of the whole building under surfaci law section 14
What an I do now as they have also sealed my first floor
If the land owner has appealed against the decision of DHFL before the DRT, you may implead yourself as a party to the case and fight out your remedies.
 Section 17(1) of the SARFAESI Act provides for appeal remedy to the aggrieved parties of any of the measures resorted to by the Bank under Section 13(4) of SARFAESI Act. Ifthe party dispossessed is not in accordance with the provision of the Act, then the DRT is entitled to put the clock back by restoring the status quo ante
T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0
 met the land owner (builder) and we came to a compromise situation that he is ready to sell me the whole property I.e ground and second floor if I clear his loan with the bank / NBFC
I met the bank and they are not interested in doing tri party agreement with us
How can I buy his other two floors ?
Can I pay directly to the bank ?
Or should I do sale deed first and then clear the bank as I don't trust his by giving advance
Since the owner has been declared as defaulter, you may approach the bank to accept payment dues to them on the terms and release the property, before that make an agreement with the owner about the sale of entire property on this arrangement and after that you can get the sale deed executed on your name accordingly. 
T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0
You watch the bank proceedings and sale by auction. It is not desirable to execute a sale deed first. If the bank sell the property by way of auction the auction purchaser has right over the property. And after that file damage suit against the builder 
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0

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