Sarfaesi act
james
(Querist) 11 June 2017
This query is : Resolved
Dear Sir,
I had advanced some money to a partnership firm, in Jan'2007 and taken as security,their POA to sell 15000 sq.ft. out of total 37000 sq. ft. of land standing in the firms name, in the event they do not return the money within 6 months. It happens that the said property of 37000 sq. mts. was also mortgaged to a nationalized bank (SBI), which I was not aware. However, one year after I gave the advance money to the firm, the bank in Jan'2008, issued a single public notice in local news paper, in English language to say that they have taken symbolic possession of the entire 37000 sq.ft of land standing in the name of the said firm, under section 13(2) & 13 (13)of SARFAESI ACT 2002.
I was also not knowing of the said possession vide the said publication.
In July'2008, I sold 10000 sq. ft. of the land to a friend and recovered 1/3 of the amount owing to me by the firm.
On 12th.Feb'2010, the said bank issued a no dues certificate to the borrower firm, which is worded as follows:
"To Whom it May Concern. This is to certify that there is no outstanding in the dues account".
On 15th. Feb.2010, one person, a third party entered the premises and forceably took possession of the whole 37000 sq. mts.
My friend who had bought the 10000 sq. ft from me confronted this third party on 20th. Feb'2010, who produced a sale deed executed on 12th.Feb 2010 which is the date on which the no dues certificate was issued to the borrower, and said sale deed of 12.02.2010 is registered on 15.02.2010.
The vender in the said sale deed of 12.02.2015 is the borrower firm.
The Mortgagee bank (SBI) does not feature in the said sale deed of 12.02.2010.
The said sale deed of 12.02.2010 is executed two years after the notice by the Bank.
There is second publication in vernacular published as required under Rule-8(2)
My friend filed suit in April'2010. which is underway. The defendants to the suit are the said third party and their vendor who is the original borrower firm who had issue the POA in my favor.
The stand of the third party in the suit is that the sale deed of my friend is executed during the subsistence of the said mortgage, hence void. This third party however has no privity to the said mortgage.
Since I executed the sale I am very concerned.
Question now is, will a sale deed executed in favour of my friend survive, after mortgage is redeemed, as against a sale by same vendor to third party executed after mortgage is redeemed.
Your advise will be greatly appreciated.
thanking you.
James
P. Venu
(Expert) 12 June 2017
The matter requires professional consultation.
Kumar Doab
(Expert) 12 June 2017
Discuss in person your own very able senior counsel of unshakable repute and integrity for a proper legal opinion and considered opinion after due examination of all relevant docs and inputs.
Hemant Agarwal
(Expert) 12 June 2017
CONSIDER THIS:
1. A duly executed & registered POA holder is entitled to sell the property, subject to various parameters.
2. IF part property (of a bigger property) was sold by POA holder, without conducting "partition /demarcation" proceedings, THEN the transaction is null & void, more so specifically IF the POA holders "Sale Deed of July-2008" was not registered, further more so IF the part property did not pass hands by way of "possession", further more so IF the part property did not get mutated in Revenue records.
3. FURTHER, the monetary claim by purchaser of part property has now become Time Barred, for recovery purposes.
4. The Sale Deed of Third party is registered on 15-02-2010, i.e. three days after "bank issued a no dues certificate", which is legally tenable and uphold'able.
NOTE: Partnership firm "CANNOT" issue POA relating to Mortgaged property. It will be a criminal offense of cheating. Legally such POA is null & void.
Keep Smiling .... Hemant Agarwal
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james
(Querist) 13 June 2017
Thank you Sir.
james
(Querist) 13 June 2017
Learned Adv. Hemant, sale deed of July 2008 is registered deed on file of sub-registrar at same time. Also mutation is done.
If Registration of sale deed dated 15.2.2010, is three days after no dues certificate issued by bank, is it not a case that borrow has redeemed his mortgage, and there after sold the entire property to defraud my friend and dupe me. Will purchaser under deed of 15.2.10, be a subsequent purchaser with notice of prior sale, and will the doctrine of priority not apply u/s 48 of TP act??
Kindly help Sir.
james
(Querist) 14 June 2017
Sir looking for further information
james
(Querist) 14 June 2017
Sir looking for further information
