Sarfaesi proceeding
Goapl Garg
(Querist) 11 January 2017
This query is : Resolved
My family consist of my grandmother, my father-mother and myself.I am student persuing higher degree course and stay away from my family in campus.My father has demised about two years ago.He was a partner in business with another person and my father and his partner has kept their residential flats as collateral towards the credit facility from their bank.
My fathers flat is used by us and it was his own self acquired property in his personal name.After death of my father , the credit facility was continuing and the Limit was enhanced and reduced two times and my mother and grand mother executed the guarantee documents on behalf of my father. I was always away from city and has never signed any document for sure.As usual, the partner of my father sysmatically distanced himself from my family and we were deprived of our dues and regular returns.A new company has been started by partner and the whole business is done thru it deserting the old partnership firm and the Bank Dues became NPA with our flat(also with partner:s flat) under mortgage with Bank.
OUR PLIGHT
Bank gave letter(13(2)) and notice (13(4)) published in two newspaper the description of the two flats, and the name of the Partner, My Grandmother, My Mother and also My Name as guarantor.I have never signed any kind of document at all.The Partner is apathetic to us and thru common well wishers we three(grand mother-mother and myself) filed an SA with DRT and Bank has filed OA with DRT.The Bank has also filed Application with the DM Office for taking possession of the two flats.Our advocate is trustworthy young professional and is of the view that the all the notices of Bank under section 13-2, 13-4 and 14 are bad as they contain my name as guarantor whereas I can not be termed as guarantor in any case as I have not been a party to any documentation after death of my father.He also contends that the Bank could not continue mortgage over my father"s flat in absence of the execution of all documents by all the legal heirs of my father who were grand mother-mother-myself and therefore the mortgage over our flat is bad in law .He has made the point as a broad issue in our case before DRT and DM.The Bank is not listening and says I had stepped into shoes of my father after his death as guarantor even without any execution by myself.At DRT the Bank is not showing to contest and lingering on the matter and the Bank is making serious efforts with DM for taking possession.
MY Question
01 Was Bank right to continue mortgage over my father Flat without my signature on documentation?
02 Am I really liable and can be termed as gurantor in this situation?
03 Is Bank"s application/case before DRT and DM is defective one and we stand to get relief there?
My advocate is sure of relief, but situation land locked as DRT is not moving ahead and in case DM allows before DRT Judgement(which we do not know) then we shall loose the flat.Also in absence of support from our business, our financial position is also weak.
Under these compelling circumstances I approach you for guidance and clarification without any malic or dis-respect towards our advocate.
Kindly help....
R.K Nanda
(Expert) 11 January 2017
query too long.
Goapl Garg
(Querist) 11 January 2017
Expert Shri R K Nanda - Yes the query is long but I needed to submit the facts.
Rajendra K Goyal
(Expert) 12 January 2017
You asked:
01 Was Bank right to continue mortgage over my father Flat without my signature on documentation?
Reply:
If the other two legal heirs had not signed the documents, the liability would have been exhausted due to Rule in Clayton's Case. Now two LH have signed the guarantee agreement, recovery can be done from their share in the property.
You asked:
02 Am I really liable and can be termed as gurantor in this situation?
Reply:
You are not liable if you have not signed any guarantee document.
You asked:
03 Is Bank"s application/case before DRT and DM is defective one and we stand to get relief there?
Reply:
Discuss in detail with some experienced lawyer dealing DRT cases.
rajeev sharma
(Expert) 12 January 2017
Q1- yes. But subsequently the loan amount was changed and you did not signed any document in that regard in that case you are not liable for subsequent loans. In case the first loan is fully repaid then you are not liable at all.
Pl also ask your lawyer how release and redeposit of title document was done for EqM when your father was not alive and legal heirs were not having any title document? Q2- As stated you are liable to the extent of the first loan.
Q3- Bank while filing application before DM has to state on oath that no matter is pending before DRT so pl check the affidavit filed before DM. Have faith in your lawyer he knows his subject
ramaraju ramaiah
(Expert) 05 February 2017
learned rajeev sharma advise is correct and consult eminent lawyer in your nearest
