Bank's remedies when other unexpected legal heir claimed
a.manoharan
(Querist) 27 September 2009
This query is : Resolved
Dear friends,
Bank issued loan on intestate property to legal heirs of wife and son on the basis of Legal Heirship Certificate issued by the Revenue Authorities and the same Mortgage was registered also. When defaulted, the Bank issued possession notice under Serfesi Act , now one unexpected legal heir saying another son sent Legal Notice claiming 1/3 equal share in the total property of house . In these circumstances , how will the Bank proceed further ? What are the Bank's other remedies ? Whether Bank can proceed further under Serfesi Act or to approach DRT directly without proceeding further under Serfesi Act?
Raj Kumar Makkad
(Expert) 27 September 2009
As the legal heirship certificate had already obtained and accordingly the property was mortgaged hence merely by sending a legal notice doesn't give ownership rights in favour of another son hence it is advisable to approach DRT directly without further proceeding under Serfesi Act.
Kiran Kumar
(Expert) 27 September 2009
i agree with Mr. Makkad, bank is a secured creditor and the bank acted on the basis of valid documents only.
the claimant may ask for his share from the other legal heirs but the bank can not be restricted of its legal rights...proceed under SARFESI Act without any appreshension.
Guest
(Expert) 27 September 2009
NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE
MOBILE.09325226691, 09271971251
e.mail.adv.nbsawant@yahoo.co.in
e.mail.nandkumarbs@sify.com
REGARDING THE BANK LOAN RECOVERY KINDLY NOTE THAT
1. BANK HAS ISSUED LOAN ON THE BASIS OF LEGAL HEIR CERTIFICATE ISSUED BY REVENUE AUTHORITIES. KINDLY NOTE THAT AS PER PERFECT LEGAL PROVISIONS AND INDIAN SUCCESSION ACT THE CIVIL COURTS HAVE JURISDICTION FOR ISSUING LEGAL HEIR CERTIFICATE.HENCE NOW THIRD PERSON IS CLAIMING HIS ONE THIRD SHARE IN THE PROPERTY IT IS A LEGAL PROBLEM.
2.BANK CAN FILE A CIVIL SUIT FOR GETING THE POSSESSION OF THE PROPERTY AND MAKE ALL THE THREE PERSONS AS RESPONDENTS.IT IS A GENERAL TACTICS APPLIED BY HABITUAL BORROWERS TO PREVENT ATTACHMENT OF PROPERTY BY BANKS.
3 BANK MAY PROCEED AND FILE APPLICATION TO DRT FOR ATTACHMENT AND SALE OF PROPERTY OF BORROWERS.DURING THE PENDENCY OF SAID APPLICATION BANK AUTHORITIES CAN GET THE OWNERSHIP DECIDED FROM THE CIVIL COURTS AND ALSO SEEK PERMISSION TO ATTACH SHARE OF TWO BORROWERS 2/3 SHARE BEFORE JUDGEMENT.ONCE YOU GET THE SAID ORDER THEN YOU MAY PROCEED FOR ATTACHMENT AND SALE OF SAID 2/3 SHARE FROM DRT FIRST AND THEN ALSO GET 1/3 SHARE DECIDED FROM THE CIVIL COURTS.
4.KINDLY NOTE THAT IN CASE YOU NEED SPEEDY REMEDY KINDLY SEND EXACT DETAILS WILL GIVE EXPERT ADVISE AND CAN GET THE LOAN RECOVERED IN FEW DAYS.
WITH BEST REGARDS TO YOU YOUR FAMILY AND FRIENDS.
THANKING YOU
YOURS SINCERELY
NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE.
adv. rajeev ( rajoo )
(Expert) 27 September 2009
Legal heir certificate issued by the revenue authority is not legal heir certificate, it is survivors certificate.
Civil Court has jurisidction to issue the legal heir certificate.
When notice is issued by another legal heir claiming his share then bank has to direct such person to obtain the decree from the competent civil court.
In this case bank has sanctioned a loan on the basis of the certificate issued by revenue authroity, but property is mortgaged then bank has to approach the DRT.
A. A. JOSE
(Expert) 27 September 2009
Legal Heir certificate issued by the Revenue Authorities is not a conclusive evidence in such matters to debar actual Legal Heirs from their rightful claims. It is felt that if the author can furnish exact details and facts, the issue could be better dealt with in a proper manner. Normally, Banks have their own internal legal wings in addition to out legal support from empanneled advocates who thoroghly scrutinizes the loan documents before sanctioning loans. Therefore, I do not think that any bank would sanction loan in such cases to the persons merely on the basis of legal heir certificate issued by the revenue authority. While I generally agree with the views expressed herein above by different experts, further details are welcome to consider properly.
