Partition - Mortgage
Chetan
(Querist) 21 February 2009
This query is : Resolved
My client has filed a suit for partition over a ancestral house property.
Recently my client learnt that one of the defendant sought Cash Credit from SBI BAnk by mortgaging the suit property.
Under such circumsatnces what should I do
ARVIND JAIN
(Expert) 21 February 2009
MOVE AN APPLICATION IN COURT STATING ALL FACTS AND GET A STAY.HE CAN MAXIMUM TAKE LOAN FROM BANK TO THE EXTENT OF HIS SHARE IN PROPERTY ONLY.IF BANK HAS PAID MORE IT IS FAULT OF THE BANK WHICH CAN ALSO BE CHALLENGED.
AEJAZ AHMED
(Expert) 21 February 2009
Dear Chetan,
Did you 'got' or 'applied' for any "Interim Stay" Or "Absolute Stay" against the Respondent/Defendant, while filing the Suit for Partition with respect to the property in question, for "Not to Alianate the Suit Property by the Respondent/Defendant till the disposal of the Suit" by the Hon'ble Court.
If there is no such Interim directions from the Hon'ble court against the Respondents/Defendants, with respect to the property in question, then you are having no right to stop them either to proceed for Loan or to even "Sell" the the property in question.
But, you can do, only one thing, as advised by our learned brother Mr. Jain, .........with addition to file an application to 'Implead' the Bank also as one of Party/Defendant to the suit, if they already recieved the Loan by mortgaging the Property of the Suit.
Shyam Ji Srivastava
(Expert) 22 February 2009
Mr. Arvind Jain my learnd friend is perfectly right.
B.B.R.Goud.
(Expert) 22 February 2009
Mr chetan,
In your case, you confirm that to what extent the defendent sought cash credit. the banker shall not give the cash credit or any loan, beyond the defendent's share of the mortguaged combined property. if it so you can challenge the validity of the defendent's right over total property and the bank's credibility to release the loan or cash credit beyond one's share of combined property.
RAKHI BUDHIRAJA ADVOCATE
(Expert) 23 February 2009
