Banking,Mortgage
If the loan is more than worth of mortgaged property, will other house be sold?
I am a widow. My husband had borrowed loan by registered mortgage of his Building from (1) bank (50 Lakhs) and (2) Individual person (18 Lakhs) After his expiry, since I have no income, I am unable to repay the loan. Now Building worth is 45 Lacs only. I have another house (present worth Rs 20 Lacs) which was bought jointly by me and my husband. Now the bank is proceeding to Auction the mortgaged building. Since the worth is less than the due, will the bank attach my house for balance due? Will the individual also attach my house for his due?
By  Anonymous  |  12 Apr 2016  |  Upvotes: 0  | 

1 Answer(s)

Rashi Gahlaut
Advocate

If the bank is initiating action through sarfesi act then it might have issued notice under section 13(2) of the act. Once the Account is classified as ‘NPA’, then, in accordance with the procedure prescribed, the Bank will proceed to make a demand under Section13 (2) informing the borrower about the outstanding amount in the loan account and also the consequences. There is a general format to give a notice to the borrower under section 13 (2). The notice under section 13 (2) should substantially comply with the requirements and if the borrower raises a technical objection, those are not appreciated normally going by the precedents so far. Once the Account is classified as ‘NPA’, then, in accordance with the procedure prescribed, the Bank will proceed to make a demand under Section13 (2) informing the borrower about the outstanding amount in the loan account and also the consequences. There is a general format to give a notice to the borrower under section 13 (2). The notice under section 13 (2) should substantially comply with the requirements and if the borrower raises a technical objection, those are not appreciated normally going by the precedents so far. In your case the other property held jointly by you and your husband is a property that 50% already belonging to you and another 50%as a legal heir, it belongs to you, since the property was not offered as collateral, the bank's action to auction this property can be strongly objected. Right to property, although no longer a fundamental right, is still a constitutional right. It is also human right. In the absence of any provision either expressly or by necessary implication, depriving a person therefrom, the Court shall not construe a provision leaning in favour of such deprivation." "In a case where a Court has to weigh between a right of recovery and protection of a right, it would also lean in favour of the person who is going to be deprived therefrom. It would not be the other way round." For redressing the grievances, the borrowers can approach firstly the DRT and thereafter the DRAT in appeal. The limitation period is 45 days and 30 days respectively

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