• Whether prime security mortgage to bank should be auction first

1. We have booked shop in shopping complex by kirana merchant co-op society (under construction / proposed)2. Co-op bank sanctioned loan without specific no. alloted .It was all in good faith of borrower ,co-op society and bank 3. There were dipute between us and KMCS (kirana mer) on allotment of shops as there was manipulation in the process of allotment.4. We stopped nstallment. 5. At one point of time KMCS has cancelled our membership of society without informing the bank.6. We had filed suit in co-op court and got decree to collect our amount with society with interest. 7. In due course of time bank sue us for recovery. But there is no specific shop with bank or us. And KMCS denies to give us shop. 8.We are ready for OTS with bank. But how can bank re-convey our shop? Is not bank at fault who sctn loan without no. ? What shd we do to get shop or recover our amount    and settle with bank?  Can we sue KMCS for fraudulent act? So, please guide us.
Asked 10 months ago in Civil Law from Akola, Maharashtra
1. If there was no mortgage of a specific property with the bank it cannot auction your property. The only remedy for bank is to file a lawsuit for recovery. For reconveyance there has to be an identifiable property of the borrower/mortgagor.

2. The court has passed the decree holding you entitled to the recovery of amount with interest. You can apply for execution of this decree. 

3. In so far as the shop is concerned it is your case that no specific shop had been allotted to you. You must have entered into an agreement with the society wherein it agreed to sell the shop to you. Now if the agreement has been dishonoured then the only remedy to you is to file a lawsuit against KMCS to seek court's directions to it to honour the agreement or in the alternative pay compensation for breach of agreement. Show the agreement to a lawyer for a comprehensive legal opinion.
Ashish Davessar
Advocate, Jaipur
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1) if you have taken loan from bank you have to pay installment . . bank has disbursed loan to you . 

2) if you dont pay bank is bound to take recovery proceedings against you 

3) you have got decree against society . you can execute decree to recover your amount paid to society with interest 

4) make an offer for OTS with bank and settle issue amicably with the bank 
Ajay Sethi
Advocate, Mumbai
23371 Answers
1224 Consultations
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Hi, Bank has to recover the money through your personal assets only. There is no existence of mortgage property.

2. You can file a private complaint against society for cheating.  
Pradeep Bharathipura
Advocate, Bangalore
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Fist of all the procedure to get the sop itself was deviated without anyone caring for the provisions of law in this regard. Now everyone woke owing the developments and legal problems.
Now since the cooperative court has already passed judgement favoring you, it will be better you execute the decree to recover the money and also negotiate with the bank for OTS. Bankhas sanctioned loan on your name, so it becomes your liability whether there is a shop number or not. 
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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1) execution of decree takes some time 

2) appeal can be filed by society against decree passed by trial court 
Ajay Sethi
Advocate, Mumbai
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If there is no appeal pending, then an execution petition may be filed in the same court where it was decreed.  The execution proceedings will be faster.
The decree can be challenged in the appellate court.
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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The decree is open to challenge in the HC and finally SC. The delay in execution can be remedied by seeking an appropriate relief from the HC.
Ashish Davessar
Advocate, Jaipur
18206 Answers
449 Consultations
5.0 on 5.0

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