Builder sold Mortgaged Flat

[Vikas Kumar]

Hi

I have bought a flat in Bangalore in Sep 2015 .We have approached to HDFC bank and they said that project is approved my HDFC so I have tken Loan and loan amount disbursed to builder. After paying down-payment and Loan amount(total 95% of flat cost) we asked for registration then builder keep on delaying with some reason and given possession letter and siad we can stay till me go for registration.So we have taken possession and started staying in that house Than after few month few people from DHFL Vysya came to our flat and said my flat along with 10 more other flats are mortgaged with DHFL by builder and now it become NPA and they have already issued SARFESI 13(2) notice.Than we approached builder he said he will clear the loan soon. Than after 5 month again DHFL came and said builder failed to pay loan so we have issue 13(4) of SARFESI and posted notice on wall. Meanwhile after knowing all thse we have filled a FIR and criminal case in local court and also forced builder to take stay.Builder has taken stay from DRT for 1 month(till Dec 26th 2017) and case hearing is still going on and next hearing is on 18th June 2018. Also informed to our home loan Bank(HDFC) and HDFC has also gone to DRT and taken stay till Jan -2108)and hearing is still going on.

Today people from DHFL came again to site and as none of any owner from these mortagde flat was available so they inform to security that they came to seal the house with police and they will come again on Monday to seal the house.

So what shall we do >
1.Our Criminal case against builder is going on in local CJM/Court can we get any stay order for any physical possession by DHFL till any conclusion of this case ?

2.Is it right way to seal the property even CASE in DRT is still go9ing on that too Two case, Builder Vs DHFL and HDFC Bank vs DHFL ?

3.Stay taken by builder/HDFC earlier can not stop DHFL to take physical possession ?>

4.Is there anyway to get long term stay from CJM/Local court where criminal case is going on ?

5.Whether DHFL has right to seal our property without any prior notice as we are staying in the property before builder’s loan account became NPA and DHFL started SARFESI ? We have a valid non-Registered Sale Agreement/Possession Letter.

[Dr. Ashok Dhamija]

Your question involves complicated questions of facts and law. It is not possible for us to give an accurate answer to your answer in the absence of having seen the full details / documents of the case.

But, generally speaking, such an act may amount to the offence of cheating if the builder has sold the flat to you my misrepresenting the facts in a dishonest manner. It is also not understood how a bank (HDFC Bank) gave you loan (that too 95% loan) against such property, since the banks would generally examine the title in detail. In particular, the HDFC Bank is generally very strict in these matters. Thirdly, there would be indemnity bond executed along with the sale deed, you can try to enforce it, provided such agreement had been signed. Fourthly, you yourself appeared to have been negligent in as much as you took possession without getting the deed registered on time, otherwise you would have come to know of the fraud in the initial stage itself. Fifthly, unless there is a stay from the competent court, it would be difficult for you to stop the DHFC. And, as far as my understanding goes, the stay may have to be obtained not from the criminal court of CJM but from the DRT or other competent court where DHFC has filed proceedings against the builder, or you have filed the civil matter, if any, against the builder. You should consult some local lawyer by showing him all relevant documents.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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