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Abhishek Mawle (x)     20 November 2011

Sarfaesi act

Our grandfather's property was divided amongst my father and his 3 brothers and 3 sisters and his mother. My father received his 1/8th Share in the partition suit decree. After he received his share in my family, my youngest brother filed a partition suit on the 1/8th share received by my father stating that it is ancestral property. He had urged the court to divide my father’s 1/8th share of the property amongst our family members equally. In my family we have 5 members i.e. our father, myself the eldest son , after me my younger sister, youngest brother and finally my mother. The court passed status quo orders on the said property in the partition suit. In the meantime my youngest brother and my father colluded and mortgaged the entire property for education loan for the youngest son without the knowledge of other family members and the bank in violation of the status quo orders mortgaged the property and Now my youngest brother does not wants to repay the loan since he knows that our ancestral property will be sold off to recover the dues.I would like to know is the mortgage valid if all the family members did not sign or give consent for the mortgage deed.Can we stop the bank from selling our ancestral house.



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 5 Replies

pervez (adviser)     20 November 2011

Dear.. In all probability, the bank might not be aware  of litigation among the family members, as NEC [ Non incumberance Certificate] obtained from the advocate might nothave highlighted these issues. Further, there is no machanism to find out the litigation, if any pending before any court of law.. So, bank is not at fault... Your father and younger brother, despite knowing the stay order, mortgaged the property, which is a clear violation of law and thus both of them have committed fraud / cheating on the bank... You can inform the bank regarding pending litigation and ask them to release the property from mortgaged   or take them furtheraction as may be deemed fit by them....

Hope this will satisfy yr query....

SURESH GODBOLE (ADVOCATE)     21 November 2011

First get the Mortgage Deed from Bank as an evidence (apply to Bank attaching status quo order with your application) 


Ask Bank to reply either way

After getting copy go to Court and submit this to Court saying they  are liable of contempt

Also ask court to Allow the property to be sold , divide it in parts

the amt pertaining to your younger brother and father may be given back to Bank ,

Reast the Bannk can recover from them

Rest you may divide amongst yourself

RAJU O.F., (Advocate)     22 November 2011

Even though the query was made as in SARFAESI Act, nothing was seen mentioned about any such action taken by the bank.  In case bank had taken possession/ issued possession notice u/S13(4), immediately file appeal u/S17 before jrisdiction DRT and point out mortgage is not valid and hence no security interest created in favour of bank and hence no SARFAESI Action possible.

Rajender Dahiya (Partner/Advocate)     22 November 2011

Bank is also at fault as it had not ascertained the clear title of the property. It was ancestral property and when bank mortgage any property then it always check the chain of title documents and it is checked by experts of the banks. When there is change of title or ownership of the ancestral property then there are specific acts which need to be performed as prescribed by law. So bank officials could easily find out all the stake holders of the property..  So from those documents it could clearly be ascertained about the stake holders of the property. It is clear case of cheating and contempt of court by the officials of bank and other persons who has mortgaged the property.

 

Rajender Dahiya

Advocate

New Delhi 9560900283

I.S.Roy,Advocate (Advocate)     28 November 2011

Dear Sir

I will agree with Advocat Mr Raju.O.F


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