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Property Mortgage Issue
Question
Late Chabi Rani Biswas gift deeded her land to her husband & children which later on gift deeded to 3 sons viz Subrata Biswas, Asish Biswas & Bijan Biswas. So the owners of the land is these 3 persons. Now Subrata & Asish Biswas signed an agreement with Bijan Biswas for development of a flat. The flat construction started in 2004 and ended in Dec 2006. Now Bijan Biswas managed a secured loan from a nationalized in June 2006 just 6 months before the completion of the building against the land. As per the process, rest 2 brothers provided NOC to bank for mortgaging the land although the land does not exist at the time of loan. Now after 15 years, the mortgage is still there and Sohini Biswas, daughter of Asish Biswas is not able to sale the property since as per the security assets database the land is showing as mortage.
Now we need to remove the mortaged land and get it replaced with the flat of Bijan Biswas who is the listed borrower of the loan.
Furthermore we need to know how the bank provided loan against the land as security when in reality the land does not exist.
Additionally we are looking for compensation from both Bijan Biswas and the bank.
Answer ( 1 )
If you are claiming that at the time the land was mortgaged, it was not in existence, then the liability would be joint because both brothers signed an NOC for a non-existent land. The Bank alone would not be liable for fraud. Further, to sell the property firstly the loan taken against the property. As I understand, the bank has accepted the property for loan because at that time building was not complete.
If you want to mortgage the flat then it can only be done by Bijan Biswas because he is the owner of the flat. He can make an application before the bank where the loan is pending for replacing the mortgaged property. if the value is equivalent to the loan taken, the bank may replace the property.