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SARFAESi act

(Querist) 03 August 2017 This query is : Resolved 

I had surrendered the flat against the cheques issued by the builder which were bounced. Thereafter I stopped EMI and the bank issued notice under SARFAES act in August 2016. The property to which the bank had granted loan was already under the mortgage of another financial institution and was not registered in my name. The bank has now made use of my un- used cheque lying with it to withdraw the loan amount with out my knowledge .Can a bank do this despite issuing notice under SARFAES act? The bank in which I have the account was already told not to allow such withdrawals against the homeloan. This property is in Karnataka and the bank account is in Maharashtra. Where the consumer case can be filed. Please guide.
Ms.Usha Kapoor (Expert) 04 August 2017
Since the property is situate in KARNATAKA YOU CAN-FILE consumer CASE IN KARNATAKA AGAINST THE BANK.The bank has no legal right after issuance of notice by the bank to you under SARFAESI Act against clear instructions by you.Bank is legally bound to return that amount to you.File a consumer case against the bank in Karnataka but be prepared to deposit the due amount to the bank in court to prove your bonafides.
Ms.Usha Kapoor (Expert) 04 August 2017
If you appreciate the above answer please click like button.
Susmita (Expert) 04 August 2017
When Bank issued SARFAESI Act, it cannot withdraw the amount. You have to file the case at Karnataka.
Devidaskshetty (Querist) 04 August 2017
Thank you all for your valuable information and advice.
Rajendra K Goyal (Expert) 04 August 2017
Bank has given loan. It has right to recover its dues even if it has issued notice under SARFAESI and or unable to recover money from mortgaged property or otherwise.

You have issued cheque, if cheque is bounced, action as per cheque bouncing can be initiated.

Even Bank can proceed to recover from your other assets which is not mortgaged with the Bank.

Your dispute with builder is separate, Bank is not concerned with this.

I do not think any consumer case would success if your Banker has honored your issued cheque if you have not stopped it specifically.
Rajendra K Goyal (Expert) 04 August 2017
Similar query from you already replied at:

http://www.lawyersclubindia.com/experts/Sarfaesi-act--648276.asp

http://www.lawyersclubindia.com/experts/Home-loan-sanction--612241.asp

http://www.lawyersclubindia.com/experts/Home-loan-sanction-by-bank-633036.asp

Dr J C Vashista (Expert) 06 August 2017
1. I fully agree with Mr. Rajendra K Goyal and appreciate his analytical ability to the facts and reply thereto.
2. There is no consumer complaint made out from the statement made by author as suggested by Ms. Usha Kapoor, which I respectfully disagree.
3. You have no option but to contest the SARFEASI case filed by lender bank, you cannot shy away from your liability.
4. Dishonour of the cheque(s) issued by you attract the punishment u/s 138 of the Negotiable Instruments Act, 1881, which is altogether a separate and independent issue/complaint case.
5. It is your frustration, absurdity, ridiculousness and stupidity to repeat same query time and again.
6. You should have opted to contact, consult and engage a local prudent lawyer for guidance and proceeding in a professional manner.
Devidaskshetty (Querist) 06 August 2017
Thank you very much for your comments and views which are appreciable.


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