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Optic Globe (Nothing)     09 October 2014

Sale of securitized asset by owner after bank possession

Bank took Physical Possession of my Apartment under Sarfaesi Act,after I defaulted in Home Loan.E Auction conducted by Bank did not fetch any Buyers.Bank approached me with a Buyer interested to purchase the Apartment directly from me.This Buyer was found by Bank themselves.This Buyer is purchasing Apartment using a Home Loan disbursed by another Bank.Purchaser's Bank will handover DD of Sale Consideration to me at the time of registration of New Sale Deed.New Sale Deed will be collected by Purchaser's Bank directly from Registration Office.
Generally when a Sale Deed is registered, the Seller will be fully holding Title,Rights,Interest,Possession and Enjoyment of Sold Property.Also, Sold Property will be free of Encumbrances and Mortgages at the time of registration.These facts will be explicitly mentioned in Sale Deed generally.
In my Case,my Home Loan will be closed only after I present aforesaid DD received at time of Sale Deed Registration,to my Bank.My Bank will release Physical Possession of Apartment only after my Loan is closed.
So,at the time of Sale Deed Registration,Apartment is not in my Physical Possession,and also there exist a Mortgage on the Apartment.
Please advice,how to prepare Sale Deed in this Case ?




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 4 Replies

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     09 October 2014

Dear Querist

This is not a legal transaction, the sale deed is illegal ab-initio, when the property was mortgage with your bank and the physical possession.

Now your bank and the purchaser both may be filed criminal cases against you.

the bank may file a case for illegal sale of the property which is possessd by them as per SARFAESI Act and the Purchaser may file a criminal case for cheating for sale the property which was already mortgage with your bank.

It will be better to settled the matter with your bank and try to deposit the amount and released the property from bank and handed over the property documents to purchaser.

 

Feel Free to Call

Optic Globe (Nothing)     09 October 2014

Nadeem Qureshi Sir,

The Sale is taking place with Consent of Mortgagee Bank, the Purchaser was introduced by Mortgagee Bank, and the Purchaser is aware of pending Bank Loan and Physical Possession held by Mortgagee Bank. Sale Proceeds is intended to be used to clear dues of Mortgagee Bank.

Senthil Kumar (advocate)     10 October 2014

Though the motgagor bank introduces the purchaser to purchase the mortgaged property, the mortgagee should prudently transact the sale to save himself from any of the contigent litigations may arise. So It would be better to execute a receipt for the mortgage and then sale shall be effected. For an obvious reason every transaction will reflect in Encumbrance certificate. Therefore, ignore the bankers blatant advise and get proper opinion.

Rangee (Lawyer)     10 October 2014

Do you agree with proposals brought by Bank and consideration money for selling your property. If so then first execute an agreement with buyer where in you give your consent for directly making payment of whatever amount into your home loan account. obtain back all the documents from bank where the documents are pledged and proceed to register the property in the name of buyer. also obtain letter where in all Bankers are agreeing to discharge you loan payment on receiving payment being sale consideration money that will suffice. 

R.S.K.singh 


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