regarding immediate relief
vamsi
(Querist) 14 May 2016
This query is : Resolved
Recently I filed a suit on the base of promissory note in addition I filed a petition for attachment of the properties. The proceedings are pending. the defendant take a loan on the properties of RS. 600000/-. Now the property values more than RS.5000000/- on market. The bank gives a paper publication on default of the defendant. The auction is conducted on this 21st. Due to the summer vacations my suit is adjourned to next month. I am claimed my relief is about 1000000/-. Now what I am supposed to do. If the property is sold on auction I have nothing to claim from the defendant. Please help me.
Kunal Godhwani
(Expert) 15 May 2016
Hello Vamsi, in law there is a difference between secured creditor and creditor, what i am trying to explain is that bank is a secured creditor because bank has secured its loan by mortgaging the assets of the party and bank has full power to conduct the auction.
But the good thing in your case is that the value of the property is much higher than the loan amount which clarifies that there will be an excess money remaining with the bank after the auction and loan adjustment.
So what best you can do is, immediately file an application under order 38 rule 5 and obtain a garnishee order against bank.
Garnishee order will mean that bank will sell the property and adjust the loan amount with the sale amount and the excess money after the adjustment of loan has to deposited in the court, so in that case the amount will be with the court, till your case is decided.
vamsi
(Querist) 15 May 2016
Thank you sir
Rajendra K Goyal
(Expert) 15 May 2016
Send formal letter to the Bank regarding your case.
Meanwhile arrange to get appropriate order from court directing the bank to hold the excess amount till your case decided.
Dr J C Vashista
(Expert) 17 May 2016
Attachment of property for recovery of x amount can be filed, entertained and execution notice be issued only after passing of a decree in your favour for which your suit is still pending adjudication, as stated by you.
Claim and interest of Bank for an outstanding amount qua mortgaged property is to be considered/dealt separately by the Court/DRT.
Your case/suit for recovery on the basis of promissory note and attachment of property to recover amount of promissory note are two different and distinct connotations in law.
Some vital information is missing, recheck and consult with your lawyer or some other prudent local lawyer.
