DRT CASE u/s 17 of SARFASEI ACT
Amar Jadhav
(Querist) 03 March 2014
This query is : Resolved
Sir. I hv query regarding DRT case hope u 'll help me. I m bank lawyer. Bank has given loan to borrower by mortgaging his property. All Documents are registered. Nw the original owner (first) has filed civil and criminal case against borrower claiming that by fraud and bogus PoA the said property is purchased. Bank is not a party to said cases. As borrower not paying installment bank issued notice u/s 13 of SARFESI ACT. Nw original owner approach DRT court and is claiming stay order for bank action and saying that bank has sanctioned loan without due diligence and in collusion wth borrower. He has never sold flat to borrower. The deed is ipso facto void ab intio. Pls guide wat stand bank should take. Bank is following due process of law. And all documents are registered so can't say that bank has without due diligence sanctioned the loan. Pls guide
Anirudh
(Expert) 03 March 2014
In which year the property was registered in favour of your borrower?
Whether the Power of Attorney granted by the original owner was registered with specific clause to sell the property in question?
In which year the original owner filed the suit against your borrower?
prabhakar singh
(Expert) 03 March 2014
It transpires that PoA (even if registered)is impersonated,and if so, then purchase on it's basis would be void ab initio.
Rajendra K Goyal
(Expert) 03 March 2014
Since the mortgaged property is disputed and may take time in decision.
Bank has the right to recover the loan alternately by filing civil suit and getting attached any other property of the borrower.
ajay sethi
(Expert) 03 March 2014
answer queries raised by MR anirudh
T. Kalaiselvan, Advocate
(Expert) 04 March 2014
The same query was posted in the name of anonymous in the previous thread, now the author has revealed his name. I agree with the opinion rendered by Mr. Rajendra K Goyal on this issue.
Amar Jadhav
(Querist) 04 March 2014
thank u Sir, the Owner is mother of PoA holder and she has given POA of specific another property to her son. But the son misused the said PoA and transferred the present disputed property to the Borrower. Thereafter the Borrower mortgaged the present disputed property with Bank. Now the stand taken by owner is that at the time of her granting rights to her son by the said POA she was not the owner of present disputed property hence her son has no right to transferred the disputed property on the basis of said POA which is specific for another property. Owner has made her son party to the civil and criminal case alongwith the borrower. And now asking the DRT court to stay the bank action u/s 13(4) of SARFASEI ACT as it apperas to be illegal and invalid. pls guide what stand shall bank take
Rajendra K Goyal
(Expert) 04 March 2014
The Bank was at fault in not obtaining properly non encumbrance certificate / search report of property from its lawyer. The sanctioning authority was negligent in scrutinizing the title documents of property and the POA. If any case for fraud against the borrower is registered, Bank staff may also be in trouble as the borrower may collude with the police.
Filing recovery suit and getting attached the other property of the borrower is better way left.
malipeddi jaggarao
(Expert) 05 March 2014
When dealing with the document of immovable property sold by power of attorney holder, the bank is supposed to examine the following aspects.
1) If the POA is developer, it will call for inter-se agreement between the land owner and POA as a supporting document to the Power of Attorney presented by the POA holder to the purchaser.
2) It will call for link documents and examine the link documents and compare the signature of the original owner with that of POA document.
3) Bank will examine whether the POA is specific or general POA. If it is general, whether it contains the power to the attorney to sell the property.
4) Whether POA is registered or not. Bank will not entertain POA which is not registered.
5) Whether power of attorney is in operation or not. The original owner can revoke the POA. Hence it is the duty of the Bank to make enquiries whether it is subsequently revoked or still in operation at the time of sale.
5) Ascertain the reasons from the buyer as to why he preferred to purchase the property sold by POA holder instead of original owner.
I do not think the ordinary bank officers will take all the above precuations. The original owner has every right to seek redressal through court. As you are representing the Bank, examine the above points and if you find that the Bank is not negligent, you can bring these facts before the court as defence. In spite of all above, if the POA is fraud document, the sale is void abinitio and court will set aside the sale and bank has to suffer loss.
malipeddi jaggarao
(Expert) 05 March 2014
When dealing with the document of immovable property sold by power of attorney holder, the bank is supposed to examine the following aspects.
1) If the POA is developer, it will call for inter-se agreement between the land owner and POA as a supporting document to the Power of Attorney presented by the POA holder to the purchaser.
2) It will call for link documents and examine the link documents and compare the signature of the original owner with that of POA document.
3) Bank will examine whether the POA is specific or general POA. If it is general, whether it contains the power to the attorney to sell the property.
4) Whether POA is registered or not. Bank will not entertain POA which is not registered.
5) Whether power of attorney is in operation or not. The original owner can revoke the POA. Hence it is the duty of the Bank to make enquiries whether it is subsequently revoked or still in operation at the time of sale.
5) Ascertain the reasons from the buyer as to why he preferred to purchase the property sold by POA holder instead of original owner.
I do not think the ordinary bank officers will take all the above precuations. The original owner has every right to seek redressal through court. As you are representing the Bank, examine the above points and if you find that the Bank is not negligent, you can bring these facts before the court as defence. In spite of all above, if the POA is fraud document, the sale is void abinitio and court will set aside the sale and bank has to suffer loss.
