Remember | Register | Forgot Password?
Bookmark This Page   RSS Feeds  Follow On Twitter

 

Search for Lawyers          
    



Please Wait ..


Discussion > Civil Law > Litigation > Sale of equitable mortgage land   Unanswered Threads Post New Topic

Pages : 1


There are 9 Replies to this message


Mrs Kalpana Tiwari (Advocate)


Advocate
[ Scorecard : 50]
Posted On 24 December 2010 at 21:30 Report Abuse

I bought agricltural land in 2006 after confirming all records in Registrar office and  found that no encumbrance of the property. We registered this land in our name and got mutated in revenute record within a year. No objection came from any side and started construction in phases. In 2010 we build a school and about to start. Suddenly a bank informed us that the land we purchased was mortgaged with bank in 1994. It is equitable mortgage as sale deed of the land. what should we do. 



Online certification courses IP, IT and Investment Law


Member (Account Deleted)


Advocate, Chennai
[ Scorecard : 1450]
Posted On 24 December 2010 at 22:35 Report Abuse

You may send a Letter to the Bank asking full details of the loan and also get copies of the Property Documents pledged with them by the alleged borrower and compare your documents in possession with those, and ask your vendor about the suppression of loan and make them liable otherwise you would give cheating complaint against him. As the Sale Deed does not state the loan matter in it, what a prudent man can verify, you would have done to subjectively satisfy yourself about the title to the property and encumbrances, etc., based upon records. Hence your vendor can be charged for cheating you as well as the Bank.



JT Rajasuriya, Chennai


Advocate 98410 53790
[ Scorecard : 465]
Posted On 25 December 2010 at 00:06 Report Abuse

The title deeds would have been deposited with the bank. So you should be able to show that you'd made public notice regards title deeds.

Of course the vendor will be held for cheating you and bank and any of other properties of his may be attached (if available).

As regards your claim over property as against the bank court will rely on who had taken maximum precautions w.r.t  the transfer of property.



Y ARAVIND


ADVOCATE
[ Scorecard : 146]
Posted On 25 December 2010 at 10:40 Report Abuse

You did not mention as to whethere your vendor had delivered origninal documetns to you or not.  If  the property is mortgaged, unless it is cleared, it continues to be under mortgage.  Further, your vendor had cheated you and in such regard you can take steps against him.  Sale in your favour will not effect mortgage in favour of bank.  Both of you (your vendorar and your self ) are liable to the bank till the dues are cleared.      



N.K.Assumi


Advocate
[ Scorecard : 22189]
Posted On 25 December 2010 at 13:00 Report Abuse

Thanks Rao, Rajasuriya and Aarvind.



M.S.Bhalerao


advocate
[ Scorecard : 163]
Posted On 25 December 2010 at 16:51 Report Abuse

Mrs. Kalpna Tiwari-Advocate,

you must have given a public notice at the time of obtaining  a Title Clearance Certifiate."Buyer be aware". if the link document( Original) is handed over to you by the seller, then you are protected. if it is a fraoud , the seller may have executted other fake sale deeds also. it all depends on the factual position and the care you have taken while purchaing the land. May help further for charitable cause



adv.d.s.jodhi


lawyer
[ Scorecard : 43]
Posted On 26 December 2010 at 06:57 Report Abuse

hi first of all u have to c that whether that mortgage deed is registered or not. second as mention by u that it is not on the revenue record then u r title is absolutly free from the defect as u have publish the notice in local news paper regardign purchse and no objection is their . therefoer its not on ur fault. Regards,   



Mrs Kalpana Tiwari (Advocate)


Advocate
[ Scorecard : 50]
Posted On 27 December 2010 at 21:06 Report Abuse

Originally posted by :Mrs Kalpana Tiwari (Advocate)
"


I bought agricltural land in 2006 after confirming all records in Registrar office and  found that no encumbrance of the property. We registered this land in our name and got mutated in revenute record within a year. No objection came from any side and started construction in phases. In 2010 we build a school and about to start. Suddenly a bank informed us that the land we purchased was mortgaged with bank in 1994. It is equitable mortgage as sale deed of the land. what should we do.

The equitable mortgage by bank is not registered, if bank would have registered in registrar office , we definitely came to know that this land is already mortgaged and we would not buy it.

Even today we can easily get the Encubrance certificate because bank had not registered mortgage.

some more facts:

1. Land is ancester property of A

2. As bank mentioned B bought this land from A throught registered deed in 1984

3. B did not take possesion of land and it continuted in name of A in revenue record.

4. B mortgage this land sale deed with bank as equitable mortgage in 1994.

5. At that time after 10 year property was in name of A in revenure record.

6. After death of A land is transfered  to his son and mutated in revenure record.

7. B did not objected at any point of time

8. C bought this land from A's Son in 2004.

9. I bought this land in 2006 and got mutated in my name without any objection from any side.

10. I have constructed a school building during 4 years no one objected.

11. In Dec. 2010  i got information from bank that this land is mortgaged with them and i have to pay the currect valuation of land to bank.

31. Provisions of this Act not to apply in certain cases

These are the facts , tell me how to deal with situation , as per your suggestion the only fault we made that we should declare this sale and ask for objection in daily newspapers, that we did not do at that time. Ple

 

The provisions of this Act shall not apply to--

(a) a lien on any goods, money or security given by or under the Indian Contract Act, 1872 (9 of

1872; or the Sale of Goods Act, 1930 (3 of 1930) or any other law for the time being in

force;

(b) a pledge of movables within the meaning of section 172 of the Indian Contract Act, 1872 (9

of 1872);

(c) creation of any security in any aircraft as defined in clause (1) of section 2 of the Aircraft

Act, 1934 (24 of 1934);

(d) creation of security interest in any vessel as defined in clause (55) of section 3 of the

Merchant Shipping Act, 1958 (44 of 1958);

(e) any conditional sale, hire-purchase or lease or any other contract in which no security

interest has been created;

(f) any rights of unpaid seller under section 47 of the Sale of Goods Act, 1930 (3 of 1930);

(g) any properties not liable to attachment (excluding the properties specifically charged with

the debt recoverable under this Act) or sale under the first proviso to sub-section (1) of

section 60 of the Code of Civil Procedure, 1908 (5 of 1908);

(h) any security interest for securing repayment of any financial asset not exceeding one lakh

rupees;

(i) any security interest created in agricultural land;

(j) any case in which the amount due is less than twenty per cent of the principal amount and

interest thereon.

Please tell me  as per provision of 

 

 

THE SECURITISATION AND RECONSTRUCTION OF FINANCIAL

ASSESTS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

we have bought agricultural land  can this act apply on us.

31. Provisions of this Act not to apply in certain cases

 

Please tell me my legal position 
"


Member (Account Deleted)


Advocate, Chennai
[ Scorecard : 1450]
Posted On 27 December 2010 at 21:55 Report Abuse

(1) This Act will certainly apply in your case, since the land is not put to cultivation now except it is described as agricultural land on record even today. If everyone takes this defence that their land is shown as agricultural land in Revenue Records, our Banks will be in doldrums and the object of the Act will be defeated. The primary object of the Act is to exclude the agriculturists and wet lands from its purview.

(2) Further, you have clearly raised a School building site on the land, which is explicitly and admittedly shows that the land is not wet land now and it was already converted and the land has lost its agricultural identity now.

(3) Coming to your case, whether or not this Act would apply, the Bank is empowered to recover the money by some legal means i.e., institution of DRT proceedings or suit under CPC.

(4) But the only consolation for you is that the previous sale from A to B since not reflected in the Encumbrance Certificate (E.C.). You should find out why the entry was not reflected in the E.C., whether there was any change in the Survey Nos. or the descripttion, etc.,

(5) If everything is alright as far as the descripttion is concerned, then you were misled by it by the Registration Dept. and you may take action against the Dept. and ask them to make good the loss suffered by you.

(6) You have to now take action against A for suppression of the fact of previous sale to B. In any event, unless the previous sale is cancelled at the instance of A/B, B is the absolute owner of the land and not yourself. Hence you may act tactfully with the parties concerned.



Mrs Kalpana Tiwari (Advocate)


Advocate
[ Scorecard : 50]
Posted On 28 December 2010 at 18:43 Report Abuse

this is with reference to you point no. 4 , Just because bank had deposited the title deed as equitable mortgage and bank did not inform the registrar that's why it was not reflected in revnure record that this land was mortgaged with bank. If bank registered this equitable mortgage with bank we should have known it through record and would not buy this land. Are bank is free from his liability to inform or registered mortgage.

It was agriculture land at the time bank mortgaged it. it was in 1994 now in 2010 we converted it into school.

Is there any relief from law of limitation.

I myself is victim of this fraud or our neglegence whatever you can say, please advise me how to get through it, it is not possible for me to again paid current value of land to bank, please suggest me way as my lawyer

thanks and warm regard




Related Files



Previous Thread
Previous
Next Thread
Next

Related Threads


Post your reply for Sale of equitable mortgage land



Your are not logged in . Please login to post replies

Click here to login


Not a member yet ?? Click here to signup

Message







    

  • This is a public forum. Avoid posting content which you do not wish to disclose in public.
  • Use thank button to convey your appreciation.
  • Maintain professionalism while posting and replying to topics.
  • Try to add value with your each post.





Subscribe to the latest topics :


Forum Home | Forum Portal | Control Center | Who is Where | Popular Threads | Today's Topic | Recent Posts | Today's Posts | Post New Topic | Thread With Files | Top Threads - Month | Unreplied Topics | Forum Stats


web analytics