• DRT - auction property - physical possession

I have participated online acution property and I was the successfull highest bidder for the value of INR 58 Lakhs on 31st March 2016. On the same day I have paid 25%.  Remaining 75% paid on 12th April 2016 ( To SBH bank). On 23rd May 2016 I received Sale Certificate. On 16th July 2016 property is registered on my name at Nizamabad registrar office. However DRT did not handover the property to me till today(2nd November 2016). It seems earlier owner of the property having dues with SBH and Provident funds office, And the property was attached to both the parties(SBH and Provident fund office). Both parties are fighting each other for the auction sale proceeds. Auctioned was done by DRT ( along with SBH). Now provident fund office put the petition with DRT and they daring DRT to go to HIGH COURT. Provident fund office served me a notice to not to occupy the property, if I occupy the property then they will take a legal action on me. Currently property was not seised by DRT. Currently property is occupied by a renters (company) and they are paying rent to provident fund office. DRT officer always saying and asking me wait that it will be sorted out. But its more than 7 months, Now I am very concerned. I am unable to make any rental agreement with current renters, They are not vacating the property. I have issued notice to DRT on 3rd October 2016 to handover the physical possession of the property. But no reply from them so far and they are very slow in response and seems to be not bothered of my concerns.


Pleae advise me on below:

1) Property is already registered on my name still I don't have a physical possession of the property since the date of sale certificate issued on 23rd May 2016. What am I supposed to do.

2)  How do I get a physical possession of the property?

3) How do I cancel this transaction ( property already registered on my name), How am I entitled to get back my entire amount along with interest + registration cost and other costs.

4) What is your personal advise. Is it normal that the DRT can perform auction without seising the property? Is it normal that the physical possession of the property is not handover after six months of auctioned property? What rights I have ? How do I proactively protect my rights? 

if required I can share all the documents.

Best Regards,
Srinivas
00971553559155
rsrinivasgoud@me.com
Asked 1 month ago in Property Law from United Arab Emirates
Religion: Hindu
Dear Concerned,

This is certainly a tricky situation in which your engulfed however without delay..... Hire a lawyer at the concerned High Court / District Court and without delay file a suit for Possession, Permanent and Mandatory Injuction, Rental Arrears and Interest. 

Make Current Tenant and DRT as Defendants and the SBH and Provident Fund as Performa Defendant (as they technically you do not want a releif from them but they should be known to the developments on the case). In the prayer clause you can pray for refund of your money by the DRT and the Registrar for Stamp Duty .

Alternatively you can file a suit for recovery of money and cancellation of the Registration claiming your investing amount along with interest. Subject to how soon you want the results any of the above can be used.

Best of Luck  
Atulay Nehra
Advocate, Noida
437 Answers
15 Consultations
4.7 on 5.0
1. Mere registration of proeprty does not get you better title if other have previous charge on it,like the PF office.
2. The PF has earlier charge on the proeprty and hence it can recover ts dues from this proeprty and then only you will get back the proeprty.
3. Since DRT fails to deliver the clear title you can apply in DRT ofr cancellation of sale and refund of sale price.
4.This is normal but this unusual on the part of buyer like you for not making proper due diligence beofre buying this property.
Devajyoti Barman
Advocate, Kolkata
5229 Answers
54 Consultations
4.9 on 5.0
1. Did you now know before that the property is in possession of the tenants? You ought to have conducted due diligence in finding out whether the property was in occupation of the mortgagor or any other person, who may have any right, in the mortgaged property.

2. After the sale is made the bank can apply u/s14 of SARFAESI Act to take physical possession of the mortgaged property to deliver the same to the buyer, even after issuing Sale Certificate to the buyer. 

3. You should issue a notice for determination of tenancy to the tenants in accordance with the rent agreement/lease deed, and if they do not vacate it even then, a suit for recovery of possession will have to be filed by you in the civil court.

4. At this stage you should apply to the DRT to fix and early date of hearing of your application for delivery of possession. 
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
1) file writ petition inHC to set aside  notice issued by provident fund organisation not to occupy the premises

2) you are a bonafide purchaser of value and have purchased property in auction conduced by DRT 

3) in said petition also seek orders th direct bank to deliver physical possession to you of the property purchased in auction 
4) in the alternative refund money paid by you with interest 

Ajay Sethi
Advocate, Mumbai
23296 Answers
1220 Consultations
5.0 on 5.0
1.  Did you buy the property against E-Auction notice published by DRT against RDDBFI Act or by Bank against SARFAESI Act? Both conduct E-Auctions and issue sale certificates.

2. In both the cases you should have verified as to whether the seller has the possession of the property or not.

3. However, if PF Department has any claim on the property, then it will be decided by and between PF Department and also the lending Bank SBH where you have no role to play.

4. PF Department can not direct you not to occupy the premises without supplying any Court order to that affect.

5.In the E-Auction notice, the property might have been specified as 'as is where is basis' and 'as is what is basis' and based on this statement the auctioner will try to escape the liability.

6.Your real problem will be from the  Tenant which you shall have to manage yourself.

7.  File a Writ Petition before the High Court against PF Department and the Bank (if the E-Auction has been conducted by the Bank) seeking direction upon PF Department and the Bank to divide the sale proceeds as per law without disturbing you and also direction upon DRT to appoint a receiver to attach the property and get the occupation vacated (if attachment has not been done already) with police help.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
232 Consultations
5.0 on 5.0
1. Understand that you have purchased the property against e-Auction conducted by DRT.

2. Before conducting E-Auction, DRT through its Receiver,  attaches the property  by pasting the attachment order on the wall of the property and sends a copy to the police to take physical possession thereof.

3. After that the sale order also is pasted on the wall of the attached properties intimating all concerned about the proposed sale to ensure that any aggrieved party can agitate before DRT against the aid sale and file an application accordingly which the PF department has not done.

4. You should now fila a Writ Petition before the High Court as advised in my earlier post where in you can also add your prayer of direction upon the DRT (or the Certificate Holder Bank  being th SBH Bank if the sale proceeds have already been transferred to them) to refund you the amount paid by you with appropriate interest and cost.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
232 Consultations
5.0 on 5.0
1) Property is already registered on my name still I don't have a physical possession of the property since the date of sale certificate issued on 23rd May 2016. What am I supposed to do.

You have to file a suit against your vendor to hand over possession of the property purchased by you under a registered sale deed.  In the same suit you can also seek the relief of rent paid by the tenant in the property to you directly and restrain other creditors from claiming them. 






2)  How do I get a physical possession of the property?

After serving legal notice, you may file a civil suit for possession on the basis of registered sale deed in your favor.





3) How do I cancel this transaction ( property already registered on my name), How am I entitled to get back my entire amount along with interest + registration cost and other costs.


In the same suit you can ask for an alternate relief of returning the amount paid by you so far. 





4) What is your personal advise. Is it normal that the DRT can perform auction without seising the property? Is it normal that the physical possession of the property is not handover after six months of auctioned property? What rights I have ? How do I proactively protect my rights? 

The DRT or the bankers will conduct auction once they have completed the formalities for auctioning the property by following the necessary legal formalities before selling the property by auction.  The creditors might have taken only symbolic possession. They would not have taken the physical possession. 
Therefore it is the buyer who should have insisted on physical possession before paying the entire consideration amount. 
Now the buyer has no option than to file a suit against the vendor to handover possession. 
T Kalaiselvan
Advocate, Vellore
14069 Answers
127 Consultations
5.0 on 5.0
In your subsequent post you have mentioned that you have written to DRT seeking the relief of possession. But you should remember that the DRT is a tribunal and not your vendor.  The vendor is SBH so you should take legal action against your vendor only 
Now you can file a civil suit seeking possession and other damages due to the delay in handing over possession or to return the sale consideration amount with interest from the date of payment till the date of settlement . 
T Kalaiselvan
Advocate, Vellore
14069 Answers
127 Consultations
5.0 on 5.0

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