JV. Builder sold the Owners share also. Bank case
Querist :
Anonymous
(Querist) 26 December 2010
This query is : Resolved
X (X1 to X5) = Land owners.
Y = Building promoter
Z = Nationalised Bank
X & Y entered into a JV. 40 : 60 ratio.
POA given to Y by X for 60% share. Remaining 40% has to be divided among x1-x5 each 1/5.
Y entered construction agreement with X3 for giving 600 sq.ft flat in 2nd floor of the proposed apartments. X3 living in a different place.
Now Y sold the entire 2nd floor to his wife.
Wife borrowed from Z and defaulted.
Z had taken possession of the entire 2nd Floor under SARFAESI Act. Auction is scheduled next month. The bank had no knowledge about the X share in 2nd floor.
Now how X3 can recover the property (market value Rs. 50 L) from the bank:-
1. By DRT application
2. Civil court injunction to stay the
auction.
3. Writ to stay the auction.
4. Police complaint on builder u/s 420 IPC.
5. Any other legal action.
Murali Krishna
(Expert) 26 December 2010
When land owners have given POA to Y, one has to see what rights have been given to him. If POA authorises Y to sell property, sale to his wife (Z) is a proper transaction. Hence, bank can proceed against property of Z.
Unless you have any evidence that said transaction is a fraudulent use of POA, no court will interfere.
Querist :
Anonymous
(Querist) 26 December 2010
POA was given to sell only 60%
adv. rajeev ( rajoo )
(Expert) 26 December 2010
X has to approach the civil court by fling a declaration suit .
Y V Vishweshwar Rao
(Expert) 26 December 2010
60 % & 40 % is whether Specified by map demarcation - annexed to the JV Agreement/Development Agreement ! or the 40 % & 60 % share of the Owners and Builders to be specified at later stage after JV Agreement /Development agreement /during the course of /process of construction. By the date of Transfer by Builder to his wife whether the 60 % & 40 % share are specified by demarcation maps signed by both parties!
In any case the Builder can not transfer more than 60 % of his share !
JT Rajasuriya, Chennai
(Expert) 26 December 2010
As explained by learned counsels your POA would have been general without specifying any restrictions.
Bank would act only based on sound documents.
It appears you do not have a case.
Querist :
Anonymous
(Querist) 26 December 2010
While the agreement was entered it was only a vacant land. Only after that the building plan was drafted, got approval and constructed. So, there is no mention of Flat No. in the agreement.
But, in this specific case, the builder had mentioned that he will give 600 sq ft. in the 2nd floor. Where as the property taken by the bank is entire 2nd floor. This clearly shows that the builder had sold the share of the X3 also.
Y V Vishweshwar Rao
(Expert) 26 December 2010
Whether the Builder Sold property more than his share of 60 % share -as on the date of Sale which is mortgaged to Bank !
Whether as on the date of Sale which is mortgaged to Bank the Share of Builder 60 % and Owner 40 % are specified under an supplemental agreement!
Querist :
Anonymous
(Querist) 27 December 2010
The share of the owner X3 is specified as i have already told, (i.e) 600 sq. ft. in the 2nd floor. The agreement is very clear in it.
Now the builder sold the entire 2nd floor, including the portion allotted to the X3.
The builder had exceeded his 60% share.
The bank had not verified any of the document between the owner and landlord.
The bank had extended loan purely on the basis of the sale deed between the builder and the buyer (builder's wife).
The mistake of the bank is very clear. But, what will be the opt solution, which is the right forum, to take back the property and stay the auction proceedings.
