Agreement to sell as a security

This query is : Resolved 

24 June 2011

I have to take money from someone who wants to pay the same after three years and he is willing to offer his house as a security by executing an agreement to sell in my favour.
The property however is mortgaged with a Bank. Will this agreement be valid and enforceable and what safeguards should be incorporated so that in case I dont receive the payment this agreement can be enforced in a court of law.

Devajyoti Barman (Expert)
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24 June 2011

The agreement is valid and enforceable but the bank which is the first mortgagee will have the first right to enforce security in case of default by the mortgagor.

prabhakar singh (Expert)
25 June 2011

Expert : Devajyoti Barman is right.

RAJU O.F., (Expert)
26 June 2011

First you have to ascertain the value of the property and the loan amount payable to the bank. As the property is mortgaged to the bank, the second charge of the same property can be mortgaged to you only with the written consent of the bank. As the property is under martgage, agreement for sale of that property is not advisable.

Shailesh Kr. Shah (Expert)
28 June 2011

Property is mortgaged to the bank, must be disclose in agreement to sale, if this clause is not mention, the court will not help.

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