Abhiroop Ghosh ( Advocate) 28 August 2009

Charges of forgery against Advocate

In 2003 Adv. issued non encumbrance certificate to bank,(by going through Index-II & Photocopy of Deed [provided by the bank]), later on it was found that, the said property was equitale mortgaged to another bank. it is not possible for the lawyer to find out the fake deed where the property is equitale mortgaged to other bank, as he is not a forensic expert. Two Deeds were identically similar. But the bank filed an F.I.R against the Advocate, On the ground of Forgery.can anyone tell-

what was the procedure followed for preparing "non encumbrance certificate" at that poin of time [i.e. on 2003]
any case law supportable to this particular case for quashing out the trial.

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9 Replies

Kiran Kumar (Lawyer) 28 August 2009

i dont think the lawyer should be held responsible for this.

lawyers' duty is advisory in nature and to find out the actual position is the duty cast upon the bank itself.

when the opinion of counsel is solely based on the documents in front then how can lawyer be responsible.

lawyers are neither investigatiors nor certifiers, counsel's job is to give opinion only.

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Abhiroop Ghosh ( Advocate) 29 August 2009

Thank you.

PARTHA P BORBORA (advocate) 29 August 2009

a "non encumbrance certificate" is issued by the govt agency and an advocate submits his opinion on the strangth of the facts submitted in the "non encumbrance certificate". if there is any forgery it is done by the govt agency. so the advocate comitted no wrong.

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Anil Agrawal (Retired) 30 August 2009

Banks are no angels. In one case a bank returned the cheque for insufficiency of funds. The cheque was not issued by the bank.

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Sarvesh Kumar Sharma Advocate (Advocacy) 31 August 2009

if n.e.c. is only the requirment for loan dn why bank is need sequerty .

Anil Agrawal (Retired) 31 August 2009

It is very simple. NEC OR NOC is needed to establish title and ownership of the property; that it is not given as collateral security or mortgaged. Banks need security to recover the loan amount in case of default. Banks will scrutinise the documents through their lawyers and visit the property to establish the genuineness. There have been cases where loanee has taken loans against the same property from various banks and all of them are now fighting the battle to recover the amount.

Adinath@Avinash Patil (advocate) 03 September 2009

I agree with kiran kumar he always give perfect reply

(Guest)

Advocate is not reponsible in this case. The Agency which issued N.E.C or the owner of the property who bought N.E.C to the Advocate for advice to be proscuted.