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M.S.subbarao (Advocate)     02 October 2009

mortgage effect of Banks claim

When a Bank holding  immoveable proerty as a mortgee, opts to proceed before Debt Recovery Tribunal or under SARFESAi Act , i.e, prefer to take a certificate from DRT and sell the property by the Authorised Officer, after attachment etc. or proceed to sell the morgaged property under SARFESAI, does it mean and result in the Bank waiiving or foregoing its right as a mortgagee and what shall be the rights of any person who had obtained transfer of the property before the proerty is attached pursuant a certificate issued by DRT in OA filed by the Bank.  In the matter of application of SARFESAI can the transferee prior to invocation of SEC. 13 of the Act say that since the Bank waived or implied gave up its rights as a mortgagee under general law, the mortgage is not binding on him.


 2 Replies

G.L.V.Ramana Murthy (Advocate)     03 October 2009

 Dear subba rao, this an interesting question which one should think of. Because after filing the complaint before the Debt recovery tribunal the claim the bank is loosing its right of mortgage as the bank is asking for the attachment. if there is mortgage right is in existence and is enforceable there is no need for the bank to go for the attacment. when there is no enforcebale mortggage and attachment the owner can alienate the proepty and the purchase gets valid right over the property and the proceedings under SERFASI ACT will not bind the pruchaser and thepurchaser can resisit the proceedings undeer the SERFASI ACT.

girishankar (manager)     27 February 2010

Thank U sirs.....

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