cpc

attachment of property by bank

FREELANCE EDU CONSULTANT

A Partnership manufacturing company has a running CC account with OD limit  from nationalized bank . The bank has given the CC and OD facility without any collateral. The Partners have however given their individual personal gurantee. The Company is in LOSS continously for more than 3 years by now. IF the partners decide to close down , then - 1. can the Bank attach the individual's property to recover their LOSS. 2. to avoid the bank attachment in such an eventuality , if the property i.e Residential House ( city prime ) is transferred to the son or daughter through a proper deed   , will the Banks still have the Hold on the property. 

Independant of the above , the House is under mortagage with some other financial institution 

 
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Advocate

Bank cannot attach but Debts Recovery Tribunal can attach.  On the intimation of the bank that you are likely to part with the property, the DRT can attach the property before you transfer it to someone else.  Or otherwise, declare the transfer of property void if it is found that it is transferred with a motive to default payment of dues to the bank.

 
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LAWYER

The Bank can act against personal property of the Partners through DRT, though it cannot start proceedings under Sarfaesi Act. As stated by Mr. CHandrashekhar, the DRT can attach the property b4 judgment & can also revoke any fraudulent transfer. 

As for the ways to save the property, contest the matter well b4 the DRT. Keep talking to the Bank. Work out an amicable settlement. Engage an efficient lawyer who is well versed with DRT proceedings.  

 
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FREELANCE EDU CONSULTANT

Dear Mr. Chandrasekhar & Manoj Harit

Thanks for the clarity.  More on this .. Is there a time limit on this proposed property transfer, say the property is transfered now and DRT / winding down the company starts say, a year later. Also clarity is required on the fact that the property   is currently under Mortgage and therefore who has the 1st right on this property 

 
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Advocate/ nadeemqureshi1@gmail.com

Dear Querist

the property   is currently under Mortgage and therefore who has the 1st right on this property?

Opinion: the first right on this property will goes to Mortgager and not to bank.

 
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FREELANCE EDU CONSULTANT

Dear Mr. Nadeem

thanks for the clarity.

 

this means that even if the Property is transferred this may not isolate the original owner of the property?  

 
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Advocate

How can you transfer a property which is already under mortgage?  The FI that had lent you some loan keeping your property as mortgage would have kept your title deeds and link deeds.  If you are contemplating any fraudulent way of transferring property despite this, you are exposing yourself to the risk of criminal proceedings by the FI to which you have mortgaged the property.  Secondly, with regard to the charge, the first charge belongs to the FI to which you have mortgaged the property, after satisfaction of its dues if any amount left the second charge belongs to the bank that filed proceedings against you in DRT and got your properties attached.  It there are appreciable circumstances, in exceptional cases, depending on the facts and circumstances of the case the DRT may also rule that both these banks can have paripassu charge over the property mortgaged to FI. 

 
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FREELANCE EDU CONSULTANT

Dear Mr. Chandrasekhar

Thanks for the analysis of the situation. Thanks also for pointing out that this will become , ' criminal ' , in nature 

 
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