Can third party appeal to court against order of sarfaesi

you may claim for specific performance under specific relief act as third party. by showing that you have entered into contract in good faith.

Can u please tell me the process of claiming specific performance under specific relief act???

You can appeal as a third party under Section 17 of Sarfaesi Act and get stay on the SARFAESI proceedings.  However it is controversial whether the DRT is empowered to adjudicate on the right or title over properties, to my knowledge, the Supreme Court had given a ruling that if there is a prima facie case of fraud, the bar under Section 34 for Civil courts does not operate, and the parties can invoke the jurisdiction of Civil courts. 

So you can file for a Temporary Injunction in Civil suit to stay the SARFAESI proceedings of the bank till the title of the property in dispute is decided by it.  The title of the property is in dispute because the builder could not have given two sets of original title deeds to two different banks.  So it is to be ascertained which set of documents are original ones and which ones are fake and who is eligible to be owners of the property, the people who bought the flats or the bank that initiated sarfaesi proceedings.  Till these questions are addressed, the proceedings under sarfaesi can be stayed by granting temporary injunction.

Thank you Sir,

The builder has not given two sets of original title deeds. However, the builder's banker is involved with builder in this fraud. The builder's banker released the original title deeds which is mortgaged, as and when demanded by the builder and shown to the buyer's for verification. When we purchased the flats, sale deed is being executed for each flats separately and such title deed is being mortgaged in our bank for finance of flat. The builder's banker and our banker is not the same.

What is the process of filling the temporary injunction as definately it is the prima facie case of fraud. As discussed from my lawyer, he has told me that stay will be initiated if court fees of 8% of building value has to be deposited, which is considerably a very big amount.

Please guide

Thanks

Is there any implication to us, if the builder has taken loan showing construction of residential house and also approved by MADA. But he has commercially sold the same.

Any advocate practicising in Ranchi High Court. Please contact at rajanjais@gmail.com

Now the stage of SPECIFIC PERFORMANCE , STAY  and all that is gone. It was your mistake that you did not verify the builder , his documents.

Even your bank failed to verify the same properly otherwise this fraud could have come to light before loans were sanctioned to you.

When the FIRST lender disbursed loan to the builder the property was free and so  the lender has first right and unquestioned right.

Now you have two options-

1) Appear before DRT as third party.

2) File criminal cases against the builder.

Sir, We have verified what an rational person can. However, this is so purpotedly done in which builder along with builder's banker is involved in this fraud, that we did not get any clue that we are being cheated.

Again you are searching HIGH COURT advocate, it will be waste of EFFORTS  , energy and valuable time will be lost.

Get a down to earth local advocate and file criminal cases fast.

Whatever you may think or do otherwise will be only for your ego.

8% of Building value is to be deposited?  Where?  Please seek a clarification from him where that amount is to be deposited whether it would have to be paid in cash or through DD and which provision of law requires the party to deposit 8% of building value? I have not heard of any such provision. Deposit that amount if it is to be deposited to the Registry of Court through Demand draft.  If he is asking to give him cash, do not give any money.

Secondly, even if individual sale deeds were accepted by your banker between builder and you, your banker should insist for link documents which show that he possesses title to transfer to you.  In other words, the sale deed through which he acquired that property from his vendor must be deposited by him in the bank where you obtained loan.  If he has not done so, then either he is liable or your banker is liable to compensate the loss. Where construction of flats takes place the builder transfers undivided share of right over the land in which the flats are built to the individual owners of the society.  Hence to verify that he is transferring a genuine property which bonafidely belongs to him, he should be compelled to submit the sale deed through which he acquired that property.  That is more important than EC and legal opinion for the bank which lent loans for you to purchase flats.

Please refer to the judgment of Supreme Court in Nahar Industrial Investments Ltd. Vs. H.S.B.C. (CTC 2009 (4) SC 74) which is an X-ray of powers of DRT. As rightly opined by Mr. Chandrasekhar, DRT cannot entertain cases for seeking declaration or specific performance of contract. In Mardia Chemical's case the supreme court held that the jurisdiction of civil court u/s 34 is not totally barred in certain matters (like fraud, misrepresentation, declaration etc.). Hence the appropriate step the querriest should take is to file suit in civil court for specific performance of contract against the builder and obtain injunction against bank from proceeding with further action under SARFAESI Act. DRT is creature of statute and has no powers to decide matters (like fraud, misrepresentation, declaration etc.) which requires high level of evidence (C.P.C., Evidence Act, Specific Relief Act are not applicable to DRTs) for which no jurisdiction is conferred to it. DRT does not fall in heirarchy of High Courts except the fact that it is emanable to writ jurisdiction as a subordinate. Hence go by the opinion of Mr. Chandrasekhar.

Mr Ramachary it is all theory. There is a dead body and you are asking if fraud was there in giving treatment.

The builder was already a debtor  before selling the property to these people and now he has trapped these people.

He will be more than happy with civil cases as suggested  by you since they will go for years and years.

BY THAT TIME THE LENDER WILL POSSESS THE ASSETS AND AUCTION THEM.

Which lender?