Intellectual Property Rights: Practice and Drafting by Adv Gautam Matani. Register Now!
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' As is where is, as is what is ' query

(Querist) 05 November 2009 This query is : Resolved 
Sir, we participated in an auction of a loan defaulted flat held by a nationalised bank (Canara Bank) and won the winning bid.

Now, the property was sold on 'as is where is, as is what is' basis. However, the flat was under possession by some third party family. Initially, we inspected the flat and verified the documents and found everything to be in order. THe family and the bank officials had orally claimed that the family is going to vacate in few days now that the auction has completed.

We had applied for a loan to complete the payment for this flat from another bank. Now the bank refuses to give us the loan saying that they flat cannot be transferred to us.

What can we do now?

Does 'As is where is' clause also mean that the bank can auction an occupied flat without vacating it?

And can the sale be valid without the Bank handing over physical possession of an empty flat to us?

I am aware of the caveat emptor nature, but I am of the opinion that it pertains to the nature of the goods sold. Here, the goods itself is not handed over at all, which is a different thing altogether.

Please, enlighten me on options available to us in this regard.

Thanking you in advance.
Raj Kumar Makkad (Expert) 05 November 2009
Jagan definitely the bank is required to handover the vacant possession of the sold property to the buyer but if it had declared openly and had made no such claim to hand over it then you are definitely sufferer. Generally seller (auctioner) is required to at least hand over possession of the sold property unless any contrary term exists. The bank can sale even the property in the possession of the third party say without its knowledge and in papers.

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