Can bank take possession based on agreement for sale
R.S.BANERJEE
(Querist) 29 March 2014
This query is : Resolved
Brief fact of the case is :
- Bank has provided Home Loan to a borrower based on the 'Agreement for Sale'.
- For five years the borrower has paid EMI but the Possession has not delivered to the borrower.
- Now the borrower stopped paying EMI.
- Bank initiated Sarfaesi proceedings.
- Bank approached to DM u/s 14 and DM has issued the order.
NOW the question is, Can bank take possession based on the 'Agreement for Sale'?
- When the possession is not yet handed over by the Developer, and when there is no 'Sale Deed' executed yet, can this property be treated as a 'secured' property under the terms of Sarfaesi Act, 2002 ?
-Can DM issue order u/s 14 under such circumstances ?
Devajyoti Barman
(Expert) 30 March 2014
Yes since the property is made as security for equitable mortgage.
Dr J C Vashista
(Expert) 30 March 2014
I agree with the expert advise of Mr. Devajyoti Barman.
Guest
(Expert) 30 March 2014
I hope, you would have gone through the terms of the loan agreement. Normally in a builder developed property, which is still under construction, the loan is granted on tripartite agreement where the bank keeps lien over the property, irrespective of whether the possession is given or not to the allottee. So, the bank can take possession based on agreement for sale, if the borrower fails to oay the agreed EMI in violation of the loan agreement.
Rajendra K Goyal
(Expert) 30 March 2014
Go through all the terms and conditions of tripartite agreement and agreement to sale.
Agree with the experts.
R.S.BANERJEE
(Querist) 30 March 2014
Sec.2(zf) says about security interest and sec.13 says about enforcement of such 'security interest' created in favour of the secured creditor.
In Namdeo's case Apex Court held 'Agreement of Sale does not convey any right, title or interest'.
If so, in that case 'agreement of sale' does not create any security interest .... ?
Please advice.
Devajyoti Barman
(Expert) 30 March 2014
Who are you and how are you connected with this case?
R.S.BANERJEE
(Querist) 30 March 2014
I am into legal profession and the borrower is my client. Any problem ? Are you also involved in this case ? You can write me at consultbanerjee@gmail.com if require.
T. Kalaiselvan, Advocate
(Expert) 30 March 2014
The author seems to have an answer but testing the knowledge of the experts here, it is unfair.
T. Kalaiselvan, Advocate
(Expert) 30 March 2014
The author seems to have an answer but testing the knowledge of the experts here, it is unfair.
Advocate. Arunagiri
(Expert) 30 March 2014
Banks will extend loan only for sale not for agreement to sell.
When the possession is not with the borrower, the bank can not take posession. It is very simple the banker is having the agreement with the borrower, the bank can not take possession of the property of the proposed seller.
Guest
(Expert) 30 March 2014
Mr. Banerjee,
Probably, you don't want to discuss the provisions of agreement.
May be you are in legal profession, at first on account of being the author of the query, you were required to give proper introduction and whether the problem pertained to yourself or your client. Secondly, as a knowledge seeker. your remarks, "Any problem?" against Shri Devajyoti Barman were uncalled for. Thirdly, as an advocate you must be knowing fully well that if you try to evade from the terms of agreement, the defence lawyer can also not be expected to be easily cowed down on referring to some case law, which may or may not support the character, circunstances and sequence of events similar to those of your own case. He can also be expected to quote some counter case law.
So, if you are desirous of seeking help from your legal brethren, discussion of the case in right spirit can only be in your own as well as your client's interest.
Rest depends upon your own sweet will.
R.S.BANERJEE
(Querist) 30 March 2014
Mr Dhingra, you are an old forum member and respected also, so inspite of loosing your skill on advisory comments why don't your come to the topic and let advance the discussion.
Further I also like to invite Mr Kalaiselvan to avoid unnecessary comments and be pleased come to the topic and throw light.
With regard to Mr Barman, I though he is on the other side and on the other side so many advocates are appearing and therefore I said 'have any problem'. Please try to take from affirmative angle some time !
Now Mr Dhingra, coming to your query, the only point is about 'mortgage' and 'security interest' in Sarfaesi act to be discussed and Mr Burman has rightly pointed out 'mortgage'. It is a case of Sarfaesi act, whether enforceable or not. And not a case of general 'contract'. Further Mr Dhingra, you perhaps overlooked my submission that Apex Court held that 'Agreement of Sale does not convey any right, title or interest'. When the Borrower or the Bank has no title, neither possession, and the borrower and the bank is the party to execute the agreement, on what basis the bank can take possession, according to your earlier submission, will you please quote the relevant proposition of law. The question is "bank keeps lien over the property" does create any 'security interest' in terms of Securitisation Act, 2002 ?
Guest
(Expert) 30 March 2014
Mr. Banerjee,
Sorry dear, the tone of your post addressed to me is like you want to compel me to be guided on provocation. I am neither guided by any provocation, nor have any personal interest in your client's case. However, if my earlier advice has irritated you, I am sorry for that, but can't be compelled to post my opinion on baseless academic type of query.
Your post also make me feel, perhaps you are interested on vast discussions based on merely your general query. Naturally, your general question attracted only general replies. If you desire detailed discussions on your general query, you can post your query in forum section.
What I find, you want me to discuss threadbare on your general query, while you have tried to insist only on your own existing points. You are not coming forward on the issue of the terms & conditions of the agreement.
For me any case law has no relevance until that is seen with specific reference to the terms & conditions of the agreement, characteristics of the case, and the circumstances under which the breach of agreement takes place. Further, I do not prefer to make my definite opinion without getting myself convinced about the relevant facts of the case.
The question of provisions of SARFAECY or Securitisation Acts would have arisen only when the facts of the case would have been brought forward in the query.
Guest
(Expert) 30 March 2014
Mr. Banerjee,
Sorry dear, the tone of your post addressed to me is like you want to compel me to be guided on provocation. I am neither guided by any provocation, nor have any personal interest in your client's case. However, if my earlier advice has irritated you, I am sorry for that, but can't be compelled to post my opinion on baseless academic type of query.
Your post also make me feel, perhaps you are interested on vast discussions based on merely your general query. Naturally, your general question attracted only general replies. If you desire detailed discussions on your general query, you can post your query in forum section.
What I find, you want me to discuss threadbare on your general query, while you have tried to insist only on your own existing points. You are not coming forward on the issue of the terms & conditions of the agreement.
For me any case law has no relevance until that is seen with specific reference to the terms & conditions of the agreement, characteristics of the case, and the circumstances under which the breach of agreement takes place. Further, I do not prefer to make my definite opinion without getting myself convinced about the relevant facts of the case.
The question of provisions of SARFAECY or Securitisation Acts would have arisen only when the facts of the case would have been brought forward in the query.
Guest
(Expert) 30 March 2014
Causing any kind of compulsion is not the key to acquire knowledge.
T. Kalaiselvan, Advocate
(Expert) 30 March 2014
I agree with expert Mr.Dhingra's views to the comments passed by the author Mr. Banerjee that he cannot force anyone here to render their opinion as the same are given voluntarily by us at free of cost to the needy and distressed. Considering my views to your query as unnecessary comments and forcing me to give opinion to your query doesn't looks good, better to avoid or there wont be any response for any of your further comments in this regard. Our legal brethren in this portal have much more important work ahead of us than to pay heed to such unwanted issues.
Devajyoti Barman
(Expert) 30 March 2014
Humility than arrogance which is sine qua non to learn new things in vast ocean of law.
malipeddi jaggarao
(Expert) 31 March 2014
Unfortunate that being in advocate profession, instead of using this forum to mitigate the problems of innocents and to share our knowledge, challenges are posed.
R.S.BANERJEE
(Querist) 01 April 2014
I invite all experts to show some light on the topic, and requesting to avoid unnecessary discussion.
Nadeem Qureshi
(Expert) 02 April 2014
Mr. Dhingra, Mr. Barman and Mr. Kalaiselvan are right. I agree with them. It is our own choice to give our opinion or not on the matter, nobody can compelled us.
Mr. Banerjee you should say sorry for your words, because you are also our colleagues and we should maintain the decorum of our Profession.
Don't Take otherwise, its my opinion only if you feel that you should say sorry then ok otherwise its your wish.
R.S.BANERJEE
(Querist) 02 April 2014
Dear Mr Nadeem, it is not compelling. My simple interest and it is the interest of this Club also, to specifically answer on the topic, and there is no reason to post unnecessary comments. Seeing unnecessary comments is a loss of time, not only for me but for all of us. And you are walking on the same footage. Perhaps you have failed to understand the comment of Mr Barman - "Humility than arrogance which is sine qua non to learn new things in vast ocean of law." Try to learn new things. We are learner throughout our life. And learning is an ever ending process in your profession. Further, sharing knowledge will not put you to the end of your knowledge.
Anyway, This is my last answer to the unwanted-comments. I will not entertain further. And I feel, I have stated nothing wrong for which I shall say 'sorry'. I do not use the word 'sorry' casually. If somebody is still interested to post some more advice, I cannot restrict, as it is save under article 12 :-)
Guest
(Expert) 02 April 2014
If you have "have stated nothing wrong," do you treat all others as wrong, who noticed your arrogant language used towards some experts? As an advocate, you must be knowing, you cannot be the judge of your own cause.
Even in your present post, your comments, "I will not entertain further" reveals as if you are lord justice to hear some case against the experts here and would give your verdict in the case without entertaining them any further.
You may or may not relent for your unwarranted remarks, but you definitely need to reform your language, at least in the interest of your clients, lest they start losing their cases merely on account of your irritations and you start losing your business.
Sanajhdar ke liye ishaara (hint) hi kafi hota hai, if you like to realise.
Devajyoti Barman
(Expert) 02 April 2014
I think the author has consciously made no attempt to feel the pulse of the experts which are quite palpable here.
In that context we better avoid replying this author in future.
Guest
(Expert) 02 April 2014
Dear Devajyoti,
You seem to be right. Probably, he does not prefer to take any help from his contemporaries in this forum.
Raj Kumar Makkad
(Expert) 15 April 2014
There is no use to reply such querist who has no respect for the experts especially if the querist himself claims as an advocate.
