SARFAESI - MOST URGENT
Siva
(Querist) 02 June 2010
This query is : Resolved
Dear Sir
This is siva, I am seeking ur good suggestions from the below said facts and case details as follows:
I have 2 sisters and 2 brothers. I was borrowed the loan from Nationalised bank with a quantum of Rs.15,00,000/ as Cash credit limit and Rs.5,00,000/- as bank guarantee on 2000. So far my mother stood as a guarantor for the above said entire loan amount and offered her self acquired property as a collateral security and we created equitable mortgage on 2000.
Due to some unforeseen circumstances I was lost my business and outstanding amount. On October 2002 the bank has declared my account as NPA for Rs.22,23,000/- and issued notice under section 13(2) and got acknowledgement from both of us.(me and my mother) and they took symbolic possession of the above said property, following to these proceedings they put the property for public auction on 2004 for Rs.6.00 Lacs only
But no one has come forward to buy ours property through public auction. So the action called off, also the bank continued he sale proceedings after two years on 2006 for Rs.6.40 lacs, that time also no came forward to buy in that auction.
During the course of proceedings by the bank we our family members doesn’t take any legal action or legal steps to prevent the property. Because that property is not much worth when compare to loan amount.
On 17/07/2007 my mother was died due to sudden cardiac arrest, also we never intimated to the bank regarding my mother’s death.
On 03/08/2008 the bank issued a paper publication and brought ours property in a public auction and which was sold in a public auction on 04/09/2008 and they registered a property in the name of auction purchaser on 23/09/2008 for Rs.7,61,000/-. The same notice has been sent by the bank to me and my mothers name through registered post. We deferred to receive such notices almost in all times, so we deferred to receive the notice and we said the reason that we have shifted from that address to some other address.
On 18/09/2008 one of my brothers was filed a partition suit in the civil court and prayed for stay that not to create any charge or encumbrance against our property by the bank, but it was no use. The court issued notice to the bank, so the partition suit is still pending with civil court.
Also our my father put 7 tenants in that premises which was already sold by the bank in a public auction, the tenants were much effective and kept the possession safe and secure away from the auction purchaser. Because now the property worth will be around 25 lacs.
After a very long struggle, the auction purchaser approached High Court and finally got direction to the magistrate to take the possession immediately. So the advocate commissioner took the possession of the property with the help of police on 18th May 2010 and handedover the property to the bank, also the bank handed over the property to the auction purchaser on the same day. After received the actual possession he demolished the houses on the same day itself.
On 25/05/2010 we meet a advocate counsel; he advised us to approach DRT to grand stay the proceedings and said we have only 10 percent chance to succeed in this case. He advised to file a petition under section 17 by our family members (father, 1 brother and 2 sister) as a petitioner against 1.me(siva), 2. Bank 3. Auction purchaser as defenders and filed a condone delay petition for 575 days and prayed to grant stay along with a brief petition, that we are the legal heirs of deceased guarantor and we didn’t have knowledge and didn’t receive any notice before the sale proceedings about the bank sale and they prayed for set-aside the sale by the bank and restore the actual possession of the property. But the DRT has deferred to grant a stay and directed the bank to maintain status cuo possession of the property on 26th May 2010 and issues showcase notice to the Bank and auction purchaser to file any objection on 8th June 2010 to allow the petition filed by us. For these fillings, he has charges Rs.25,000/-.
Now, the counsel is asking another 10000/- to proceed further steps on 08th June 2010.
My question:
1)From the above facts, we have any grounds to succeed in this case.
2)Shall we proceed or leave it.
3)We had spent almost 2 lacs for these entire all court proceedings and policticians from the beginning itself.
4)Most of the lawyers suggest not to go further…
5)Is there any loop hole point from the facts pls. suggest me how to defend.
NOTE: Bank has followed and published all the sale proceedings and symbolic possessions as per act.
Accept the notice to legal heirs...
Thanks.
B K Raghavendra Rao
(Expert) 03 June 2010
Facts when reduced to simple terms read as follows:
You have borrowed loan, your mother has offered her self-acquired property as collateral security. You have defaulted in repayment and in accordance with law the bank has auctioned the property.
You have no grounds to succeed. The more you delay, the more interest would be debited to your account and so much loss of money for you.
Do not proceed further.
Raj Kumar Makkad
(Expert) 03 June 2010
I cannot become agree with Rao on the ground that the property of the guarantor devolve in her legal heirs soon on her death and as bank could not have auctioned such property which is duly owned by some other persons than the name mentioned in decree/award. Thus whole process is erroneous. DRT can decide the objections raised by your brothers and sisters and then they may also approach to High court, if desired.
B K Raghavendra Rao
(Expert) 03 June 2010
Sri Raj Kumar Makkadji please note that the property offered by the person is her self-acquired property. When alive, she is at liberty to do whatsoever she wants with the property. Offering self-acquired property as surety would be liable for auction in any event.
Uma parameswaran
(Expert) 04 June 2010
Bank has the right to sale the property to realize its debts if the borrower made any default.You have missed many chances.Here sale of the property and transfer of the possession also over.So there is no chance.Only the thing what you can do is try your luck in pending partition suit.Hold off the DRT case.
