Got trapped due to fraud builder - bank has initiated sarfesi act
Guest
(Querist) 31 May 2017
This query is : Resolved
I brought a property from Mr X (Younger brother) which was already mortgaged with SBI and as part of the sales proceed I took a NEW housing loan from same SBI branch and cleared Mr X's liability. For 5 years I stayed in the house and fully cleared my SBI home loan.
One fine day when I paid the last installment of my SBI loan, another Bank Indian Overseas Bank (IOB) came to my door saying that this property belongs to them as My Y (elder brother of Mr X) had mortgaged (equitable) it with them in 2004.
Later upon investigation we found out that Mr Y (elder brother) had taken a Loan of 6.0 Lakhs by means of Equitable Mortgage by making Mr X as Guarantor with IOB. However, within 6 months Mr Y (elder brother) secretly and fraudulently sold the property to Mr X WITHOUT the notice of IOB and Mr X went ahead and obtained loan from SBI. SBI too did not verify properly and gave loan to a property which was already mortgaged. Interestingly, The younger brother updated the govt records at Sub Registrar office and transferred the property in his name in Record of rights/Khata etc.
Now both Mr X and Mr Y have absconded and SBI has washed away its hands. SBI declines to cooperate with me and to my RTI application seeking copy of legal opinion they say it is NOT ON RECORDS.
IOB keeps sending Section 13(2) notice to its original borrower marking a copy to me. However from 6 years they have been only sending section 13(2) notice only. nothing beyond that.
I have filed a civil suite for injunction in 2011. The Bank is simply passing time and the case is going very slow from past 5 years. My counsel too does not have much knowledge on SARFESI Act
Please suggest whats the remedy for me as I am 100% innocent buyer who brought the property following the law of the land and after verifying all records taking loan from SBI and cleared it 100%
Its a clear case of Builder Bank and Bank Bank nexus. Both bank knew the fraud but kept quite and waited till I cleared my SBI loan and as soon as I cleared my loan the very next day IOB came to my door.
Thanks
Rajesh
Sudhir Kumar, Advocate
(Expert) 01 June 2017
first you purhcased a land without investigation or the title.
then you applied SBI loan where you may have declared you to be the owner and hidden the lien of other bank.
So the loan itself was fraudulent and SBI having received the money will not be interested in giving FIR against you unless you pester them.
Then you registered no FIR against those who cheated you.
Then you filed a suit engaging a lawyer who knows nothing about SARFECI Act.
Guest
(Querist) 01 June 2017
Thanks for your response sir
Point No 1 - Absolutely NOT, The property documents at both Revenue department/Sub registrar and the Bank Panel advocate investigated and there was no loan reflecting anywhere.
Point No 2 - Not sure you read my email completely
Point No 3 - Did not understand
Point No 4 - A Civil suite has been filed against Builder and the Bank
Point No 5 - The case is so complicated that I have gone to almost 10 lawyers including those practicing in High court and consulted evan retd. Bank officials but no one has a solution.
Guest
(Expert) 01 June 2017
First try and confirm which document Pledged is Original .
Guest
(Expert) 01 June 2017
Documents Pledged with IOB or SBI
Guest
(Expert) 01 June 2017
First Please Confirm this fact
Guest
(Expert) 01 June 2017
Also file a Criminal Complaint against Sellers for cheating
Guest
(Expert) 01 June 2017
Consult and discuss with A Local Good Senior Advocate
Rajendra K Goyal
(Expert) 01 June 2017
You have filed case and got injunction, wait for the decision.
Rajendra K Goyal
(Expert) 01 June 2017
Property was mortgaged with the IOB, any sale / transfer of the property without clearing the loan would not effect the right of IOB till its loan is repaid. Buyer should beware, no matter he is innocent.
Either original borrower / guarantor should pay or Bank would recover from mortgaged property.
Rajendra K Goyal
(Expert) 01 June 2017
SBI had given loan on property, its loan is repaid, SBI can not be held liable at this stage in any way even if there was a defect in title of the mortgaged property.
Rajendra K Goyal
(Expert) 01 June 2017
You should try to settle the matter with IOB through OTS if possible.
You would have right to recover the paid amount from original borrower and the guarantor.
Guest
(Querist) 01 June 2017
Thanks Rajendra Sir,
1. SBI gave a false Legal Opinion
2. SBI did not do due diligence at the time of sanctioning loan
3. IOB (first bank) kept quite for 6 long years and appeared only when I paid last SBI home loan installment
4. IOB declared loan NPA in 2008 whereas they waited for 2 years till i cleared SBI loan and only then issues Demand notice u/s 13(2)
5. There is a handshake between SBI and IOB
6. Despite the powerful SARFESI act for some reasons IOB has still not come with Section 13(4) from past 6 years
7. IOB says OTS is between borrower and the Bank so discussion didnt materialise
8. God Knows I am innocent, hence he is protecting me even from SARFESI Act 13(4) but the reason why I am in this forum is to understand from someone who is SARFESI Act champion on why IOB is not going ahead with Section 13(4)
Regards
Guest
(Expert) 01 June 2017
First and most important thing the Counsel who is dealing in civil court which kind of suit he has made there I don't know required to check plaint
Second SARFESI Act jurisdiction is not with civil court and civil court injunction can not stop bank from proceedings in DRT . And myself sorry to say immedately approach Debt recovery tribunal and see good advocate there who deals in SARFESI matter.
Matter is bit difficult at your end too , so if any legal settlement can be done then you may think after talking with your advocate and with bank.
You may also think how to exit that property to save your large financial loss.
I think I saw your profile it is Pune , Long back I saw Debt recovery tribunal near Swargate ST Depo , please check there if it is there still , and approach advocate there don't waste your time in civil court much (Plaint I have not read so I don't know what your adv. has constructed case there but still I am not happy about it )
Criminal case can be initiated too but how to save your investment is prime goal , and how to minimize your loss to depends upon circumstances
Guest
(Querist) 01 June 2017
Thanks Madhu madam. Appreciate your time and efforts.
IOB has send section 13{(2) notice 2 to 3 times in past 6 years. However, they have not proceeded ahead with section 13(4) primarily because I m sure they have some technical or legal roadblock. Otherwise they cannot sit quite for 6 years as they are armed with SARFESI act
Guest
(Querist) 01 June 2017
This is a Equitable Mortgage fraud where the modus operned was
Elder brother brought a property. He mortgaged it with IOB by depositing title deed. The younger brother was Guarantor.
After 6 months The elder brother created a sale deed selling the property to Younger brother without knowledge of IOB
The younger brother got the property transferred in his name in Record of rights/Khata etc
He goes to SBI and takes another loan on the same property by depositing the new sale deed. SBI did not verify encumbrances and sanctions loan without asking all previous sale deeds
Now I enter the picture when I was looking for a house. The builder being fraud do not disclose the IOB loan and assures me that all is clear and he has already availed loan from SBI.
I take fresh housing loan from SBI who sanction it after verifying all encumbrance records and their panel advocate says go ahead.
I start living in the house and clear the SBI loan in 5 years. As soon as the last cheque is passed, IOB comes to my door
There is a clear nexus between IOB and SBI. The builder has happily absconded.
Having failed to recover money from their borrower IOB is threatening me with SARFESI Act
BUT nothing beyond 13(2). They are quite from 6 years.
so there is something fishy. They are at fault, so my guess is that they are quite or else by now they would have thrown me out.
Guest
(Querist) 01 June 2017
these types of fraud with Equitable mortgages were common till 2010 till CRESAI came into picture. Many similar frauds were reported in Karnataka
Guest
(Expert) 01 June 2017
I will be honest we lack proper system in land and flat related things , and this system is exploited by Economic criminals.
We don't have title insurance too , it is present in some countries they may start in future after Rera act , but we indeed title insurance means if things like what has happened to you take place regarding title and other complication there should be some insurance too
Sudhir Kumar, Advocate
(Expert) 02 June 2017
you are now disclosing that you have changed many lawyers. you did nto disclose it earlier.
Sudhir Kumar, Advocate
(Expert) 02 June 2017
1. SBI gave a false Legal Opinion
2. SBI did not do due diligence at the time of sanctioning loan
That there is a fact that the land was already pledged with othr bank and why SBI should presume and believe that you did not know the same. Itis you who approached SBI fopr loan and declared the land to be free from encumberance. The error of SBI panel lawyer doe snot absolve you of the wrong declaration.
Normally SBI was entitled to register FR against you (they can still do so). They may not be interested in doing so because their money stands recovered.
Understand (without arguing) that inspite of recovery of loan SBI can still write FIR against you despite recovery . SO better do not annoy or blame them
Anyway choice is yours.
Sudhir Kumar, Advocate
(Expert) 02 June 2017
"3. IOB (first bank) kept quite for 6 long years and appeared only when I paid last SBI home loan installment
4. IOB declared loan NPA in 2008 whereas they waited for 2 years till i cleared SBI loan and only then issues Demand notice u/s 13(2)"
How are you affected if IOB acted with professional prudence.
Even if they acted earlier SBI still would have recovered money from you or your guarantors as they also had a leverage to go to thana on cheating charges.
Sudhir Kumar, Advocate
(Expert) 02 June 2017
Given facts (if true) indicate that you have been cheated.
In case your claim is really true that you did not know of IOB loan then you must file criminal case against those who induced to buy the land by hiding this vital facts.
You have to file criminal case against the said person.
Guest
(Querist) 02 June 2017
Dear Sudhir Sir, At first place, I am really thankful to you for spending your time and looking into the facts. With due respect to you sir, I am not at all in argument mode and I am just stating the facts with Evidences. Sir it appears you have developed per-notions about something wrong about me and prima facie it appears from your response that IOB is "professionally prudent" and SBI has done nothing wrong and the fact that they can complain an FIR against me who falsely pledged that the property already had lien from another nationalized bank. I am GROSSLY surprised with your response.
Sir, I am sure you are aware on why the SARFESI Act was introduced, it was to ensure Banks are equipped with powers of speedy recovery of loans without the intervention of civil courts and tactics of fraud borrowers. First place they offered loan to fraudsters who are renowned in this part of the world and their crimes appear in newspaper everyday. Secondly when you declare a Property as NPA why did you take 2 years to raise a demand notice u/s 13(2). Why did not the IOB inspect the property in question when their borrower defaulted from day 1. The property is NOT registered with Urban Development authority which their borrower lied to them. Sir, IOB is no saint. You may certify them with a Golden Peacock award but for a Bank who claims they were not at all aware of the fraud played by their borrower for 6 long years, I have my thoughts otherwise. And sir, see the timings, why on earth they came once I cleared my last installment ? They could have come on Diwali or on Christmas or even on Holi right? I am 100% sure its not the professional prudence but their lackadaisical approach and legal hurdles that they cannot touch me with section 13(4).
Now my friends from SBI, Sir, I was NOT the first borrower, the matter of the fact was that the said property was ALREADY mortgaged with SBI even before I met SBI. As part of the deal with the purchaser, I took a new housing loan from the same SBI branch who underwent their normal course of scrutiny and I paid them Rs 3500 for obtaining a Legal opinion from their Panel advocate who gave a clean chit to go ahead. THERE WAS NO AFFIDAVIT OR DECLARATION THAT I GAVE SBI THAT THE SAID PROPERTY WAS ALREADY MORTGAGED WITH ANOTHER NATIONALISED BANK AND THAT I WAS AWARE OR UNAWARE ABOUT IT.
Sir, I am an RTI activist and have been fighting this case from past 7 years, I have approached Ombudsman, Central Vigilance officer, RBI and have studies SARFESI acts in detail and have obtained information of all gross negligence of both SBI and IOB. Both of them are cunningly avoiding questioning my answer and most of the time say "so and so document/information is not on records"
And sir your assessment on SBI raising an FIR against me you advising me not to fiddle is VERY VERY STRANGE. In fact its me who can get all those people from SBI who sanctioned the loan including the Panal Advocate FIRED if I wish to do so. How can a Nationalised Bank offer Loan on an ALREADY mortgaged property ? Where are your verification and scrutiny process? Why on earth you have a Panal advocate and why do you charge from customer for the Legal opinion of the BANK EMPANELLED Legal adviser ? Why on earth SBI did not bother to ask for all previous title deeds from the first borrower?
Nevertheless, the facts, as you say in braces (if true) which are indeed true, I have cleared the home loan 100% in 5 years, I have followed the law of the land and there is NOTHING wrong that I have done both Technically and Legally. And the matter of the fact remains, whether or not you believe is that the builder cannot commit such frauds without the help of BANK officials. They definitely are hand in gloves.
Since I am 100% innocent Law abiding citizen, I have committed myself to fight againt the injustice melted out against me by the Builder Bank unholy nexus and in my pursuit of defending my case myself I approach various forums and consult various experts including lawyers (consult and NOT change as you read). If God is willing, I will get the right guidance
Thanks again Sudhir sir.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 02 June 2017
This a national problem and now Govt has woken up to create proper records system.
No bank is wrong and not even the advocate who gave report because the earlier mortgage is not recorded anywhere.
You have option for filing criminal case against builder only.
Yes you can go to civil court since there are certainly some mistakes but in the process the IOB will suffer and builder will go scot free. Choice is yours.
We are contesting similar cases at various courts but our client acted fast prior to repayment and hence every thing is on hold.
Rajendra K Goyal
(Expert) 02 June 2017
Agree with expert DEFENSE ADVOCATE.
SBI has got loan, Bank deals in money and not on property you have mortgaged.
You are responsible for defect in title of the property, not SBI who have recovered its loan.
As advised above try to have amicable settlement, legally you seem to be standing on weak footings.
Guest
(Expert) 02 June 2017
I will be clear to you in some respect , Myself observing Govt Value (Ready recknoer of stamp duty in Mahrashtra) Specaly Mumbai Pune belt , 9-14% is per annum increase of property rate. Means if you purchase property in this area and do nothing it is like you are earning around 12% interest in non monetary form.
Now no. of years you have property in possession may have also increased the property price , at same time you will argue that I paid interest and that is more to my purchase price , but still after doing over all economic calculation if you feel you are in profit then settlement can be also good option with bank but keeping good adv. at your side who will take your legal interest and not bank.
Additionally you can initiate criminal proceedings against those crooked people also and also check what other thing they have done on your property .
Guest
(Querist) 02 June 2017
Thanks everyone, Really appreciate your time.
The fraudsters who cheated me are organised criminals and have multiple court cases running against them and by now either have absconded or are in Jail. Filing a case against them will be a sheer waste of time and money. Anyway they are defendant in my civil suite and they have never come to court in past 6 years.
SBI, I know will go Scot free but I see that the Panel Advocate is no more with them. I will definitely beat them so that they do not repeat what they did with me.
IOB knows that I am innocent yet, they try to treat me as if I am their borrower and in the past tried yelling, shouting and threatening me as they think SARFESI to be a Brhamastra, but I have given them back strongly and they haven't dared back to come to me. its almost 6 years that they have issued the demand notice but for some reasons they have NOT moved ahead with Section 13(4). They do come to civil court and attend, however, I want an early end to it as I am innocent and cannot run after courts especially the civil suites which takes long time.
Yes Madhu Madam, the property price has appreciated but as a matter of principle & Ethics, when I am 100% innocent and law abiding citizen, I wont clear someone else's sin and that person roam Scot free. I am waiting for them to take first step with Section 13(4) which I am 100% sure they cannot.
Guest
(Querist) 02 June 2017
Meanwhile I offered them an OTS of 60% of the total outstanding loan (principal+interest) as on date of the first notice I received in 2010. However, they are passing time and seems want big money that is the outstanding amount as on date. They are under the assumption that they can cow me down with SARFESI act but I live in a land where Mallya's, Chidambarams's, A Raja's, Kalmadi's, 2G, 3G, Jijaji, Laluji all do crimes and escape and when I have done no crime I am being trapped by a legislative law which gives illegal power to bank to evacuate me from my house by use of law enforcing agencies/ Police.
Sorry for being Senti :-)
Guest
(Querist) 02 June 2017
my assumption is that based on the complexity of the case no Asset Reconstruction company(ARC) is willing to take up this case. IOB do not do it themselves and outsource it to vendors.
Sudhir Kumar, Advocate
(Expert) 03 June 2017
"see the timings, why on earth they came once I cleared my last installment ? They could have come on Diwali or on Christmas or even on Holi right?"
ask IOB. This forum cannot be their spokes person.
Sudhir Kumar, Advocate
(Expert) 03 June 2017
You seem to have been cheated but appear to be under resolve not to take criminal action against those who cheated you.
Sudhir Kumar, Advocate
(Expert) 03 June 2017
from the point f view of IOB or SBI or Police --------- why at all they should believe that you were not aware of claim of IOB on that land and why it should not be believed by them that the said fact was hidden knowingly to secure loan from SBI.
Guest
(Expert) 03 June 2017
Thro out this Thread you have Not Mentioned about your Steps/Action against the Sellers
Guest
(Expert) 03 June 2017
If at all you are a Genuine in your Claims Only the sellers had put you in problem
Guest
(Expert) 03 June 2017
Why No Action/complaint against the sellers
Guest
(Expert) 03 June 2017
Any buyer of the Property would only insist on Original Documents
Guest
(Expert) 03 June 2017
Have you done that
Guest
(Expert) 03 June 2017
With out insisting on the Originals if the Transaction had taken place Obviously you are in hands with the sellers
Guest
(Expert) 03 June 2017
Being an "RTI Activist "it doesn't entitles to play with Banks.
Guest
(Expert) 03 June 2017
Come out with Genuine facts for Genuine Remedy
Guest
(Querist) 03 June 2017
Sudhir sir - You seem to have been cheated but appear to be under resolve not to take criminal action against those who cheated you.
Response - Responded already in thread. They are defendant in my civil suite.
Sudhir sir - from the point f view of IOB or SBI or Police --------- why at all they should believe that you were not aware of claim of IOB on that land and why it should not be believed by them that the said fact was hidden knowingly to secure loan from SBI.
Response - for a min lets assume all Banks and police are saints, Sir why on earth you think that I was aware of the lien on the property especially when it is an equitable mortgage and it is no where reflected in Revenue records. Cant I too be cheated?? Why is the benefit of doubt only to the Bank?? And sir, for the second time I request you to read my case again. the said property was ALREADY Mortgaged by SBI much before I came into picture. So Gentleman, its not only me who mortgaged it with SBI, I was the second buyer, so please refrain using statements like SBI will go to Thana and file and FIR etc etc.
In all humility, Hands folded, I request you again Not to respond based on some kind of pre notions.
Rajkumar Sir , thanks for your time and appreciate your reply. I would refrain myself commenting further as few of forum members apparently come to conclusion without reading the complete story and even pass the judgement. Not sure sir what do you mean when you say "playing" with bank. And a Fact is a Fact and its your choice to decide if it is genuine or fake.
The problem with the system is that a common man is always suppressed when he tries to fight against system. No one wants too look at deficiencies of the bank and unholy nexus of Banks and builder, all one sees is the fault of common man because it is easy to point out and nail him down.
Nevertheless, my intention to come to this forum was to find out if someone has handled similar case; if someone has knowledge on the Section 13(4) of the Sarfesi Act and would suggest suitable remedy to address this crisis. The intention was not at all to receive judgement on my personal character. I am open to criticism, however it has to be a constructive criticism and should not be derogatory in nature.
Thank you all of you for your valuable time
Guest
(Querist) 03 June 2017
The choice of believing the facts to be Genuine or False is purely up to the adviser/Expert. Every person think and interprets differently.
Lets have some rules of the game:-
If the adviser/Expert feels that the fact is Not "Genuine", Fine, no issues, I respect your views. please ignore and do NOT RESPOND and let me go and do not waste your precious time. The law will take its own course.
And for those adviser/Expert, who feels there is some truth in what I state, then please suggest me on remedies based on your experiences, if any, that will be most welcome
Please, Please don't be judgmental, don't make statements on vague pre-notions, don't be provocative and discourage someone.
Sudhir Kumar, Advocate
(Expert) 03 June 2017
You have been cheated ( your claim appears to be true though IOB and SBI may not agree so and you have to prove)
you have only filed civil suit
no criminal case is filed by you. So you appear to be under resolve of not doing any criminal action.
You as that mortgage in favour of IOB was not reflected in record. If this is true then there appears to be a case of misuse of powers (public servant) by IOB officials and matter even falls within jurisdiction of CBI.
Guest
(Querist) 04 June 2017
Thanks Sudhir Sir
Criminal case Not filed because the builder has absconded after committing over 70 such frauds in my native place. Hence, it will be a mere time waste to file a criminal case and loose money further towards legal expenses. The builder has cheated 8 nationalized banks by raising multiple loans for same property and some 50 innocent customers by selling same property to multiple people especially apartments. The quantum of fraud ran between 2 to 3 crore from year 2004 to 2010.
I do agree that even I should have done Due diligence by personally verifying previous title deeds or by publishing a caution notice in newspaper, however, me and my father completely relied on SBI whom we thought being a nationalized bank and having a very stringent scrutiny process clubbed with Go Ahead with their Panel advocate we went ahead and brought the property.
Sir, my father was an army man and throughout we were with him wherever he was posted and had no knowledge on property matters and never thought such frauds exist. We purely relied on SBI brand and were totally illiterate in terms on how to do due diligence in the matters of real estate. Throughout we lived in Army quarters and after retirement this was the first property we brought.
Sir, when SBI sanctioned loan to me the manager and staff were personally aware that their earlier borrower had duped them by mortgaging an already mortgaged property, however, they kept quit and quietly sanctioned loan to me. When I foreclosed the loan after 5 years and paid the final cheque, SBI informed IOB and the very next day IOB came to my door. There was definitely a Handshake between these two Banks. Also sir, the reports of multiple frauds of the fraud builder were appearing in local newspaper yet IOB and SBI kept quite. In fact IOB should have come and inspected the property to check if the borrower had sold it. they didn't do it. Interestingly IOB declared their loan as NPA in May 2008 however issued Demand Notice u/s (2) after 2 years, that is when I cleared my SBI Loan.
Sudhir Kumar, Advocate
(Expert) 04 June 2017
you will not file criminal case
you say that it will be time wastage as the builder has absconded.
then why should bank file such case when you have not absconded and they can recover from you.
Rajendra K Goyal
(Expert) 04 June 2017
Agree with the advice from expert Sudhir Kumar.
Guest
(Querist) 04 June 2017
you are missing the point time and again. I have NO contractual obligation neither I am a borrower of IOB, so why on earth IOB files a complaint ? and why using the word "absconded" for me ????
First let them (IOB) write a letter or a notice addressing me. They sent notice to their borrower and CC me. Legally and Technically they cannot sent me even a notice. From past 6 years I have never received a notice in my name. I am only CCed.
I totally fail to understand you sometimes when you talk about the banks going against be either by FIR, as you said last time (that SBI will go to Thana) and now you are saying that why not IOB file a criminal case against me as I have not absconded ?
I already requested you not to provoke at least if you cannot help someone.
Please exercise professionalism by either guiding correctly based on facts and circumstances which are practical in nature or else keep yourself away.
you are moving this thread into wrong direction. Such pig-fights are not productive for any one of us.
Kind Regards
Guest
(Querist) 04 June 2017
Sorry to say but I see a problem with your mindset and attitude. You have made it up to declare that I am a fraudster cheating the Holy Banks. Time and again without reading the entire case you talk irrational. What you are doing is, you are reading between the lines and making vague interpretations.
I have made it clear Mr Sudhir, if you perceive and have declared for yourself that I belong the the genre of criminals, then please excuse me and do not waste your time for me. I am 100% sure you have better job to do.
I am here in this forum to put across my case to see guidance from experts who have faced similar problems and are willing to guide me. I have never forced myself upon you. there are host lot of other people in the world who can give me the right guidance. Its not that I will be happy if people tell me you are good and safe and talk positive on my behalf, all I want is to understand from the Legal standpoint based on the facts described in the case.
Guest
(Querist) 04 June 2017
And Sudhir sir, you have provoked me to the core, so much that I will track you and reach you in whichever part of the world you live and offer you Motichoor Laddu made out of Desi Ghee whenever I am out of this problem, which I forsee very soon. Do let me know if you prefer other sweet dish :-)
Nothing offensive here as I respect you for your age and experience and your time :-) :-) :-)
