Builders and bank hoding the possession of the flat
Advocat R.Ramesh
(Querist) 13 October 2013
This query is : Resolved
Its my humble request to the friends of the legal fraternity to help me in getting and instant justice for the problem created by a MNC bank having violated all laws thus having a nexus with the builder.
A as a borrower on recommendation from the MNC Bank, M, enters into a builders agreement with B, the builder during April 2006 for a flat to be constructed in the heart of the chennai city now its a posh locality and after completing all formalities and after interalia depositing the documents wiz sale deed of the uds and the builders agreement for which M refuses to issue an acknowledgment citing the bank policy, in writing, through a clarification sought by A, pays the full amount to the B in absence of A by not following the builders agreement. A starts his EMI from May 2006 and B gets permission from CMDA only during July 2007 thereby starting and completes it only in March 2008. The EMI of A was regular and after completion before handing over the possession the B insists the A to resale the flat as B had committed to a family of the political party and has to oblige but A refuses to concede the request whereby B orally threatens A that the possession will not be given and A issues a statutory notice to B and after the receipt of the statutory notice of A to B, M issues a communication in writing in May 2008 addressed to B, not to hand over the possession as A had not deposited the title deed ie the uds sale deed of the flat. A moves the state consumer forum and against the B & M and the fact is the case is still pending till today and now it is in the stage of arguments after all sorts of round.During Feb 2010 when the EMI of the A has been regularly honored M, takes the possession of the flat without a statutory notice to A and A after not being heard by anybody including the ombudsman stops the EMI with a clear information to M. M during the month of Nov2010 recalls the loan amount and A replies that he is willing to settle the amount provided the flat is handed over the A, there is not reply or any action on the reply of A and during July 2010 M issues a SARFAESI notice to which A on his reply accepts the notice amount and willing to settle provided the M handed over the possession, still there was no reply or action of this time also. M moves DRT under OA during OCt 2012 and A files an IA's in Feb 2013, one praying to cross examine the bank and the other willing to deposit the full amount as per the OA with a prayer to hand over the possession.The court allows the petition of cross examination and the petition to deposit the amount is reserved for order till today. The cross examination is going on and the bank had dragging the questioning by asking often adjournment in the pretext of referring the files in the bnak. Meanwhile yesterday the Bank M had taken a symbolic paper possession of the flat which are in their custody by affixing the notice on the door of the flat.
I need your suggestion how to get an quick justice to ensure that A gets his possession.
Nadeem Qureshi
(Expert) 13 October 2013
You can easily bear consultation fee of a Lawyer, contact a lawyer personally
K.K.Ganguly
(Expert) 13 October 2013
1. Has the Bank delivered to you the possettion notice issued u/s13(4) of SARFAESI ACT, 2002 which they have affixed on the door of the mortgaged property?
2. Has the Bank published the said notice with in 7 days thereof in two local dailies, one being in vernacular?
3. You can file an application u/s17 of the Act before the local DRT praying for setting aside the said possession notice for not following the Act (if they have not followed as stated above) & also as you want to pay the entire amount if the possession of the flat is handed over to you,
4. You can pray for a stay order also on further SARFAESI Action to be initiated by the Bank like issuance of Sale Notice,
5. You shall have to file the said application within 45 days from the date of the Possession Notice issued by the Bank.
6. You have a good case to win. Contact a local lawyer having expertise in DRT matters.
R.K Nanda
(Expert) 13 October 2013
consult lawyer personally.
Rajendra K Goyal
(Expert) 13 October 2013
Contact a local lawyer having expertise in DRT matters.
Raj Kumar Makkad
(Expert) 13 October 2013
Reply the relevant questions raised by expert Ganguly and only then seek the desired advice.
Raj Kumar Makkad
(Expert) 14 October 2013
Even if a querist is advocate, he needs to submit the relevant facts in detail.
Advocat R.Ramesh
(Querist) 18 October 2013
hanks for your replies and suggestion and thanks to Mr.K.K.Ganguly who had perfectly narrated the legal remedy. Till now the bank had not issued any notice nor any advertisements.My thinking is not the bank wwants to sell the property or to realise their money if that is so they would not have had returned the DD sent by the borrower for the reply to the laon recall notice on the pretext of non submission of the document. I assume the following points:
1.The bank aware that the borrower will move the forum for stay.
2.The bank then move the appellate forum against the stay and stop proceedings in the DRT so that it can be further dragged to a couple of years as the bank is aware that the case had come to a conclusion and it will be over in a couple of hearing.
If this is right my request is to:
1. In such scenario can we move a writ or a direction under 482 for handing over the possession.
Mr.Nadeem for a lawyer fees is not so important as winning the case.Thanks for your commercial opinion
Devajyoti Barman
(Expert) 18 October 2013
Writ court has no jurisdiction nor section 482 has anything to do in this scenario.
K.K.Ganguly
(Expert) 18 October 2013
1. Certain things need to be clarrified. You said the Bank had already taken possession of the property. From whom they had taken the said possesion? Is there any written document to that effect? They can not do that without issuing Possession Notice u/s13(4) of SARFAESI Act,2002 & this can be a valid agitating point for you before the DRT,
2. You said that later on the Bank has taken symbolic paper possession. It is confusing. Why symbolic paper possession? The Bank has already taken actual/physical possession which they have regularised by issuing the Possession Notice u/s13(4) of the Act. They can very well sell the property now by issuing sale notice & further issuing sale certificate to the highest bidder. There will be no need for your original title deed for issuing the Sale Certificate & the said Sale Certificate will adequately pass the title of the property to the buyer,
3. If you can prove that the Bank had already taken physical possession of the property before issuing the Possession Notice u/s13(4) of the Act & also if they have not delivered you any copy thereof & not published it in two dailies within 7 days thereof, you can file an application u/s17 of the Act, praying for setting aside of the entire SARFAESI Proceeding initiated by the Bank, a stay order agaisnt any sale & also to handover possession of the property to you after receiving the balance payment to be paid before the Tribunal,
4. You do not know what the Bank officials have in their minds. I suggest not to have any presumption in this regard,
5. When you repaid the loan in its entirity, it is strange that the Bank has returned the said payment for want of the Title Deed/Document of the property which has been mortgaged in creating security interest for the said loan,
6. Since DRT has the jurisdiction in this matter, High Court will refuse the matter to be heard & pass order sending the matter to the DRT,
7. You file put up application before the DRT to expedite hearing of the Original Application filed by the Bank &
8. File S.A. before the DRT within 45 days of the date of issuing the Possession Notice u/s13(4) of the Act praying for reliefs as narrated above.
Advocat R.Ramesh
(Querist) 18 October 2013
The following clarification:
1.The bank had already taken possession from the builder through a letter dated 28.11.2011 which has been filed as a document in the drt in their OA.
2.Yes that is strange law the bank had already is in the possession of the property through the builder upto 2011 and thereon in their possession and they also failed to revoke the sec13(4) to leased out or to rent it and it is lying idle for all these years.
3.We can very prove through their documents filed under the OA and we are already moving the SA before the tribunal.
4.Because it is a nexus between the bank and the builder and both are interesting to get enriched on borrowers cost and here the funny thing is the borrower is in the fighting spirit so both have got cornered because their wrong doing have been exposed and they are only interested in dragging the case proceedings as the bank is aware that it is in the sinking boat.
