01 February 2019
dear sirs, I stood as a guarantor for a loan availed by a pvt ltd company in which my uncle and his son are directors.Due to losses in business the account was classified as NPA on 29.10.2018.The bank had mortgaged properties belonging to my uncle and me as collateral.However the market value of the properties is lesser than the loan availed.The bank issued a notice under section 13(2) on 2/12/2018 to my uncle and me under sarfaesi act with regards to the secured properties.Around three days prior to my receiving the notice by registered post i had transferred my unsecured properties to my son by way of registered gift deed.My questions are: 1)Can the bank file a suit against me saying that i transferred the unsecured properties with an intention to defeat or delay the creditors(bank) and to declare the gift as null and void under section 53 of transfer and property act. 2)can the bank file an insolvency petition against me to declare the transfer as fraudulent transfer 3)Can i say in my defense that i had gifted the property three days before i received the NPA notice and hence had no knowledge that account was under stress P.S The bank has not sent me any notice regarding the unsecured properties till now.
02 February 2019
1. & 2. Yes, as the bank has encumbrance on the property (under collateral security) kept by lender but its value is much less than amount outstanding, hence the bank shall (definitely) file a suit for declaring the gift deed as null and void. 3. No Since you are well knowledgeable with law applicable on the issue, it would be better to consult and engage a local prudent lawyer for better appreciation of facts & documents and proceed professionally to defend your case.
02 February 2019
Let your son who has got the Property by Gift Deed mortgage it in the name of a trust worthy Person of your family for a very high amount than your loan amount by Registered Mortgage for his safety.
02 February 2019
1. Loan can be secured or unsecured and not the properties. The gift deed registered by you in conveying the title of your mortgaged property is invalid since you can not deal with your mortgaged property in any way without the written consent of the mortgagee. You can sell or gift your other properties which have not been mortgaged.
2. The Bank will not file any other civil suit against you but shall hereafter issue possession notice u/s13(4) of SARFAESI Act,2002 and then avail DM's order by filking an order u/s14 of the Act to take physical possession of the said mortgaged property with police help for selling it to recover its loan outstanding for which the said property was mortgaged. The Bank can not claim any extra amount other than what you had guarenteed to be repaid. Bank shall have to file a Original Application beforev the DRT for attaching the properties of the borrowers and not the guarantor.
3. After you have mortgaed your property you can not deal with it irrespective of whether the concerned loan account has become NPA or not. The registration of the said gift deed has no purpose and was not necessay whethet bit was mortgaged or not mortgaged. Mortgaged property you can not sell and unmortgaed property of guarantor the bank can not lay any claim upon.