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Amit Middha (Manager)     07 November 2013

Remedy for bona fide third party purchaser - sarfaesi act

Dear Sir I had purchased Second Floor from builder in April 2007 in Delhi through a property dealer by executing a registered sale deed. The dealer had also arranged housing loan for me from LIC Housing Finance Ltd. for which I had paid a processing fees of Rs. 16,000 to LIC Housing Finance Ltd. The registered sale deed of the floor was in the name of wife of dealer and cousin sister of builder. Builder and dealer are brothers. The same flat was purchased by them just two months back in Feb 2007 from original land owner who had built three floors i.e. ground, first and second. The second floor was originally built in 1999 as can be verified from electricity bill also. The first floor was already sold out to other person starting from 1999 through GPA then to various other subsequent buyers, then in Oct 2005 through registered sale deed which was further sold in June 2012 to present owner through registered sale deed. The present owner of first floor has also taken housing loan from LIC Housing Finance Ltd. The first floor was also originally built in 1999. Original land owner i.e. grandmother was occupying ground floor and same was first sold by her to her daughter in law through registered sale deed in Jan 2012. Daughter in law further sold the ground floor to present owner through registered sale deed in March 2012. The ground floor was originally built much before 1999. On 21.10.2013 we surprised to see that one notice under section 13 (2) of Sarfaesi Act 2002 was pasted on ground floor of our building. The date mentioned on the notice was 25.07.2013 and its time limit of 60 days was already expired. The notice was in the name of deceased son of original land owner, grand son of original land owner and original land owner i.e. grandmother. The son has already expired. It appears from the contents of notice that the loan was taken by son and grand son in April 2005 and grandmother was the guarantor who had deposited original title deed of land to financer Citi Financial Consumer Finance India Ltd. Consequent upon the defaults committed, the loan account was classified as NPA. In June 2010 arbitration award was passed directing to pay Rs. 14 lakhs together with interest of 18% per annum from June 2008. The recovery rights of Citi Financial were transferred to Kotak Mahindra Bank in Oct. 2012. Now Kotak Mahindra bank has issued notice under Section 13 (2) of Sarfaesi Act 2002 to pay around Rs. 26 lakhs including interest. As per bank whole property is mortgaged by depositing the original title deed (Urdu Farat) of land. Different present owners of floors including me are having photo copy of Urdu Farat. My concern is that I was the bona fide purchaser of second floor. I was also rest assured during purchase because LIC Housing Finance had granted housing loan to me on the same floor. I want to know about following concerns for which I request Respected Panel to please advice: • How without having original title deed, sale deeds in favour of builder (second floor) and daughter in law (ground floor) could be done. If the builder had not seen original Urdu Farat during purchase of second floor, it means he was also aware about the facts and he further cheated me. • What LIC had checked before granting loan to me and to first floor and how non encumbrance certificates could be issued by their lawyer. • Now in present circumstances what is the way out to sort out this matter. How much time the bank will give us, what would be the next action of bank and how I should proceed in the matter. • The son and grandmother are traceable and we have already provided their address to Kotak Mahindra bank. Can the bank not recover their amount from them and leave us. Warm Regards


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 4 Replies

BAALASUBRAMANNYAMM (Advocate)     07 November 2013

If you observe carefully, the following doubts need to be clarified.

1.On whose names, the Ground Floor, 1st Floor and 2nd Floor stands in the year 2004 or 2005.

2.I think you have not properly checked at the time of your purchase in the year 2007 or your LiC Housing Loan. 

3. The original land owners have taken loan on production of the title deeds, from the bank in the year 1005. 

4 How all the purchasers have no knowledge about the mortgage loan information. 

5. Any how you were cheated either by the land lords or your sellers. Now all the flat owners are held liable, if you want to get out from the litigation.

You should have to get some more information. But any how, kindly verify if  you have time, to file an appeal against the Arbitration Order or notice under secdtion 13 (2) of the said act. 

Kindly consult an advocate in this regard. You have a stuff case.

Amit Middha (Manager)     07 November 2013

Dear Sir, Thanks for your valuable advice. Point wise answeres to your queries are as under: 1. Ground floor - in the name of original land owner i.e. grandmother. First floor - Some other person who is not related with original land owner. Second floor - in the name of original land owner i.e. grandmother. 2. I had checked the original sale deed in favour of builder's relatives. Original Urdu Farat was not provided to us since we had purchased partial property. It was also not shown to us because we were third party for original land owner. What LIC had checked, I am not aware about the same, in fact this is one of my serious concerns. 3. Yes it is appearing from the notice received from Kotak. 4. Am sure, me and purchaser of second floor would not be aware about this. Moreover, a person is rest assuredduring purchase when Financial institution is granting loan after checking title of the property. Regarding owner of ground floor, I am agreed that they should have demanded for original title deed of land during purchase, however, as per my discussions with them till date, I am convined that they were also not aware about the same. You are kindly requested to please advice in detail as I have already approached some of the lawyers, but not getting clear lines on which we should act.

Amit Middha (Manager)     07 November 2013

Just to share one more information. Second floor was first sold in Feb 2007 by original landowner i.e. grandmother. Prior to that there was only single Urdu Farat for land in favour of grandmother. Ground floor was first sold in Jan 2012 by original landowner i.e. grandmother to her daughter in law. Prior to that there was only single Urdu Farat for land in favour of grandmother.

Amit Middha (Manager)     12 November 2013

Respected Forum Members, Sincerely request you to please help me with your valuable advice. Now a new issue came in front of us. Even if we the present owners of all three floors are ready to settle amount with bank, then also the bank is not ready to handover original property papers to us. Request you to please advice how to get property papers from bank in the present scenario. Warm Regards

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