Attachment of house on non payment of loan

My brother has taken a personal loan from HDFC bank in Delhi and not paying EMIs and actually absconding. Bank has put up a case against him and court has ordered a non-bailable warrant against him. We stay in Bangalore and we have a house in Durgapur, WB. House is solely owned by father. My Father has been getting calls from bank recovery and layers that the next step will be to kurki japti of our house. What does the law say in this case, what is kurki japti and is it possible that court can actually order that? Loan was not taken with parents concern or any kind of signature neither any property document has been used for the loan. Just on the basis of permanent residence address and family relations can someone's family (parents) be made responsible and forced to pay off. What should be our (father) next steps?

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Your father should immediately file an application in the same court stating full facts and seek cancellation of order of attachment or kurki. For recovery of personal loan house of father can't be attached and auctioned by the  bank unless same is mortgaged . You may contact me for any clarification and or legal help if you so desire. 

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Dear Sir,

Let me inform you about the position of law in this regard, a bank can never establish a claim on the property which was never in question at the time of taking a loan. Most of the times, while taking a loan from the bank – they ask for a Collateral against the loan in question. The sole purpose of this collateral comes at the time of default in payment, when the person in whose name loan has been taken, is unable to pay back the loan amount alongwtith the interest.

The concept of a non-bailable warrant comes, exactly in the same kind of circumstances where your brother is right now. Whenever an accused gets absconding or evades law, he is forcefully made to be present in the court of law before the magistrate for an explaination of the aforesaid crime. Plus, absconding or obstructing the law on any pretext or any ground gives a prima facie impression to the court that he absconder might have definitely committed the crime. The court takes a presumption and for granted that he most likely can be held guilty of the offence. Otherwise, if the person has not committed any act contrary to law, then there is no ground for him to start evading law.

In this particular situation also, if your brother comes back to the bank and gives them an undertaking to their satisfaction – to pay the bank their loan in future, the bank will most probably consider extending the time period to pay back the loan. Because see, ultimately bank also wants their money back either ways, they have absolutely no interest whatsoever in sending your brother behind bars. The bank will anyways take their money back, by either auctioning the property etc. or by any other means, with your brother absconding or present in front of their eyes. So its advisable to send a word to the concerned bank stating that you people are willing to settle the matter outside the court with a promise to return their money in near future. Even if a person with no legal background sees this problem, your brother appears to be the defaulter / wrongdoer ab intio.

There is also a Guarantor of the loan, who is held responsible in case when the person taking the loan fails to repay the loan back. Now, when your brother is not available then the guarantor will be held responsible. The statement that your wrote “My Father has been getting calls from bank recovery……………….. kurki japti of our house” is justified only when the Guarator is your father and the Collateral property against the loan is your family house. And if it is like it is, then the court is very well vested with the powers to do all of it and much more. Otherwise, it is all a hoax.

As a next step, your father can send them a legal notice with the help of a lawyer. This notice needs to contain a formal reply that whatever they have done or are doing to you currently, do not fall under the preview of their follow up or any payment pay back mechanism. However, asking for the whereabouts of the absconding brother is one thing and unnecessary mental harassment and threatening family members is another. Also mention that neither your father nor your brother signed up or had taken signatures of your father for him being the Guarantor to this loan.

Incase you are facing any difficulty pursuing the above advice or want any help in filing the case. Please follow the link below

Answered on March 1, 2017.
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