Bank issuing instruction to the builder not to give the possession
K G Srinivasan
(Querist) 15 March 2012
This query is : Resolved
Iam a housing loan customer of ICICI bank in chennai. The head of Regional manager in chennai had issued an instruction to the builder with a copy marked to me, not to give the possession of the flat which has been completed on the pretext of non availability of the sale deed. The said sale deed along with the builders agreement was deposited to the bank on 6.7.06 only after the receipt of the papers the bank had released the full amount to the builder on 27.7.06 in my absence, though the builders agreement did not warrant it. I had written several letters from 16.3.07 till 12.12.07 and also several complaints on phone banking and on the internet banking till level 4 complaint , when they asked me orally during the month of march 07. The bank did not answer to any of my letter or query When I submitted the papers the bank informed me that they follow oral mortgage policy and hence no acknowledgement was given. When nothing was going through, and on your advice, I had to file a consumer case on August 2008 in the state consumer forum. I was paying my emi regularly since August 2006 and only during the month of Feb 2009 when the bank inserted their name stating that this flat belongs to ICICI Bank and after sending several letters when the bank did not heed to remove their name I have to forcibly stopped my emi from Sept 2009. When the case was going on in consumer forum for nearly two years the bank was absent and later on July 2010 the bank contested and the builder was declared exparte and now the builder had also filed a petition for setting a side the exparte which is pending for disposal. Meanwhile yesterday the bank had moved the DRT and filed an OA against myself and the builder. Can you suggest me, as last time, what should be my approach and what is the conspiracy of the bank to move the DRT under OA against me and the builder.?
Guest
(Expert) 15 March 2012
Was the agreement with bank bi-partite or tri-partite?
Guest
(Expert) 15 March 2012
Dear Srinivasan,
In that case, in view of your clarification, your builder was not obliged to adhere to any instruction of the bank about not to give possession.
However, stopping of EMI on your part has gone to your disadvantage and the bank gets the right to treat the outstanding amount as NPA and to recover through DRT/attachment/auction, etc., process. Evidently, the Bank remained absent just to get the case achieved the status of NPA by the passage of time, as bank's case was quite weak.
However, your default in EMI payment only made your banker active in July 2010 to assert its claim and made it move the DRT and also was able to make the builder as a party to the OA for recovery point of view. No doubt your builder would still be free to give possession to you unless the bank gets a stay order for that. Had you continued paying your EMI regularly, the banker's case would have gone totally amiss.
So, now, it would be better for you to fight your case effectively at DRT through some expert lawyer, as it has already gone to quite a different direction.
ajay sethi
(Expert) 15 March 2012
engage a lawyer in chennai . contact mr arunaigir from this site .i agree with dhingraji that since you have failed to pay EMi bank jhas moved DRT for recovery of its outstanding dues .the bank wants an injunction restraining builder from deliveruing posesson of flat premises till payment of outstanding dues
K G Srinivasan
(Querist) 15 March 2012
Thanks sir I whole heartly agree but you will also appreciate that if the possession is in builders hand and making payment whereby the bank will not respond and more over the bank along with the builder had taken the possession with allowing me to enjoy the fruits of the investment. More over we had categorically stated that we are ready to pay all the emi's only when we get our possession and the bank and the builder had verily know that they want to cheat me and hence they had moved it further to litigate it. I wish to state that if i inform the drt that iam prepared to pay the emi's provided they hand over the possession and show me the sale deed papers will the court will be obliged to allow my prayer.
K G Srinivasan
(Querist) 15 March 2012
And moreover they want to ensure that i get possession o
nly after a decade which the builder had informed me when i did not listen to his advice of reselling the flat to builder without any benefit. What is the remedy. i am prepared to settle my dues provided i get my property. the buulder is struck bcos it is registered in my name and hence he want to ensure the litigations continue
Sankaranarayanan
(Expert) 15 March 2012
I do agree with experts view the most of the mistake on the builder hand. Even you approched consummer forum bot it means to stop your EMI. This is your weaker part. Better seek a local lawyer and approch further
K G Srinivasan
(Querist) 15 March 2012
Is it necessary to have a lawyer, the bank needs their emi and iam prepared to pay if the bank gives me the possession. I request you to tell me if i take the demand draft for the amount required and seek the possession from the court still i need a lawyer.
Sudhir Kumar, Advocate
(Expert) 15 March 2012
My dear the things have gone beyond it being a simple consumer case. You need a lawyer. If you did not nee d you would not have been here.
Guest
(Expert) 15 March 2012
Dear Srinivsan,
Are you making presumption at your own that the bank needs their EMI and ready to give possession, or the bank has actually agreed to handover possesion of the property on payment of the over-due EMI and not the whole of the amount of the loan along with interest in lump sum?
JT Rajasuriya, Chennai
(Expert) 15 March 2012
Mr.Srini,
You can meet the Recovery Officer of the Bank concerned and discuss settlement terms (of paying whatever amount to get the flat out of NPA)to get possession of your flat
Even if the Builder is putting spokes in the wheel, you don't have to bother much about the builder - can be solved.
Try to get the issue immediately settled with the Bank or simply follow DRT's directions for settlement.
K G Srinivasan
(Querist) 16 March 2012
While the consumer proceedings was going on i was having a negotiation with the bank and the bank was agreeable to my terms of taking the missed emi and handing over the flat but the builder was not in terms. He was agreeable on one condition that the flat should be sold him back. I was even prepared to withdraw my complaint with the forum but with the builders adamant this is the stage. I am prepared to pay the full amount provided i get the possession, paying the amount and again allowing it to be litigated which i do not want to afford. Please advise?
