Laibility of surety after his death
vp singh
(Querist) 24 August 2012
This query is : Resolved
my father was surity for the educational loan(15 lakhs) availed by my brother and his daughter. after my fathers death my brother stopped the installments of the bank loan. bank declared the loan as NPA and issued notice to borrowers and surities. my brother is in govt. job and has avoided recovery of loan amount. fathers house was mortgaged and now bank wants to sell that house. what are legal options for me to save that house? what leagal options i have to force the bank to recover the loan from the borrowers(they are more then capable but unwilling to pay)?
Devajyoti Barman
(Expert) 24 August 2012
It is discretion of the Bank to go for recovery of loan either from the borrower or from the surety.
Since the guarantee was secured one, you can not escape the liability of fulfilling the guarantee,
However in the vent you have to finally pay of the debt, you can recover the said amount from the borrower by way of civil suit.
malipeddi jaggarao
(Expert) 24 August 2012
The limitation for mortgage is 12 years. When your father stood surety to the loan and when he last acknowledged the debt? The Bank can go ahead with its action if it is within 12 years of the mortgage. As Mr.Barman said, the Bank can go for recovery either from the borrowers or the guarantors, either jointly or singly. In this case since the house is mortgaged, it is easy for the bank to realize its debt. Why don't you have a talk with your brother for repayment when they are capable of doing so? It may yield positive results.
Sudhir Kumar, Advocate
(Expert) 24 August 2012
Agreed with Mr Burman.
I do agree with Mr Jaggarao that you may talk to your brother but you may have already talked. Why should he agree to pay the loan alone when he can shift the liability to common property.
You have not elaborated as to what is the nexus between your brothers's Govt job and failure of recovery.
JANAK RAJ VATSA
(Expert) 24 August 2012
what is the status of the properties in your brothers name, his salary, financial position and how he has been able to stall the recovery of the loan by the bank from him being a govt official ?clarify
Sudhir Kumar, Advocate
(Expert) 25 August 2012
It appears from abov ediscussion tha bank is itself option not to recover from his brother.
JANAK RAJ VATSA
(Expert) 25 August 2012
yes. the bank appears to have connived with the borrower to corner the surety only while the actual beneficiary is having good times ?
Guest
(Expert) 25 August 2012
Naturally, the bank would adopt the safest and easiest mode of recovery. However, you can meet with the bank authorities along with the particulars of employment of your brother as well as the particulars of the drawing and disbursing officer, who draws salary of your brother. But still, there is no guarantee that the bank would try to divert its attention to get your brother's salary attached through an order of the court of law, as that also provides limited scope of recovery for a limited period only, if the loan amount along with interest amount due is heavy.
Sudhir Kumar, Advocate
(Expert) 25 August 2012
There is nothing a matter of connivance it is discretion of the bank the recovery will be safe adn fast by sale of property which they have within their rights.
Amount balance after recovery will be refunded to him and his brother (provided there is no other claimant on sold property).
He can avoid sale of property by refunding the loan from his pocket. It was his father and none else who mortgaged the property.
Sudhir Kumar, Advocate
(Expert) 25 August 2012
You have not elaborated as to what is the nexus between your brothers's Govt job and failure of recovery.
Has he misused official position.
JANAK RAJ VATSA
(Expert) 25 August 2012
it is for consideration not technically in legal terms but the fact that the loan was taken for the education of the brother's daughter by mortaging the house and the same brother has now turned away after demise of his father and decided not to repay the loan although having capacity as per the author and want to see his mother and younger brother on road ? what justice are we looking at ?
Sudhir Kumar, Advocate
(Expert) 25 August 2012
Mr Vatsa,
You pity for this man is understood but law is not in his favour.
It was beloved father of the querist who mortgaged his own house. each of his successor is bound by the mortgage. If his father was alive he was liable to pay but since the house is mortgaged the house is liable to pay.
They will not be on the road. They will get the sale proceeds remaining after recovery of the loan. [It is well expected that bank officials while mortgaging other estate may not leave a single penny after recovery of the loan]
He is not the first case of surety.
He should either pay loan from his pocket and later keep claiming from his brother by way of civil suit or let the house of sold.
malipeddi jaggarao
(Expert) 28 August 2012
Not only that - the queriest represents the surety. Once the amount is recovered from the mortgaged property of the surety - the surety steps into the shoes of the creditor - he can file a suit for recovery of the amount (his part) from the principal debtor. Only problem is he has enter into litigation by filing civil suit for recovery of his portion. Hence I suggest the queriest to talk to his brother and bring all these facts to his notice - if he and his daughter are really capable they should be made convinced for repayment to avoid civil litigation among the family members.
Sudhir Kumar, Advocate
(Expert) 28 August 2012
I agree with Mr Jagarao.
In case his brother had a viable income then his father need not morgage house for education loan. It is rare.
When his brother and his daughter have trapped him in such a situation that he can be made to pay the loan why they should pay. If his brother was respectable and prudent man the situation would not have come.
It is more emotional than financial issue for him. He has to pay the loan which he never took to protect the property which he feels is his. He has then to file civil suit against his brother and his daughter (may be married by not or will be shortly marrying).
