GBTI sues GNCB over sale of mortgaged property
Stabroek News
April 9, 2004
A lawsuit totalling $5.2M has been filed by the Guyana Bank for Trade and Industry (GBTI) against the Guyana National Co-operative Bank and Registrars of Deeds and the Supreme Court, respectively, to prevent the sale by execution of a property mortgaged to it.
An affidavit sworn to by GBTI's Credit Director, John Tracey, indicates that the property is located at Lot 11 Mahaicony River, Demerara and was mortgaged to GBTI by Pitamber Persaud [also known as Pytimbar Persaud] on May 17, 1995.
Further, that Persaud owes GBTI the sum of $5,228,445 on the aforementioned mortgage from March 19, 2004 with interest at the rate of 22.75% per annum until fully paid.
According to Tracey's affidavit, the property was advertised for sale by execution in the Official Gazette of March 13, 2004 to be carried out on March 30, 2004.
GBTI, subsequent to the advertisement, entered a notice of Opposition dated March 26, 2004 and served it by registered post on the defendants by March 30, 2004.
A copy of the notice of opposition attached to the affidavits and writ indicate that it contained the following reasons for objection to the sale of the property by execution [or any other form] by the defendants.
"(1) Persaud (Judgement Debtor) owes GBTI $5,228,445 due, owing and payable...
(2) Since the property described had been the subject of an existing first legal mortgage in favour of GBTI No. 577/95 dated May 17, 1995, the plaintiff (Judgement Creditor) is not entitled at law to make that property the subject of execution process without first reserving GBTI's prior right to obtain payment on its sale.
(3) Alternatively, the plaintiff (Judgement Creditor) has no legal right to subject the property to a levy or sale at execution while that property is the subject of an unsatisfied registered mortgage that had not been cancelled.
(4) Further or in the alternative, GBTI has an existing present lien over the property for which interest vests in GBTI's right of property arising from the due restructuring of the defendant's (Judgement Debtor's) loan facilities with GBTI by virtue of the "Rice Relief Package" granted by the Government of Guyana to the rice farmers of Guyana and invoked by GBTI on April 10, 2003.
(5) At all material times, the aforementioned restructuring facility remained an on demand loan entitling GBTI to immediate repayment in the event of a judgement being granted against the said defendant (Judgement Deb-tor).
(6) That it is incompetent on the part of GNCB to proceed to offer the property at execution sale in the manner described or at all, unless or until GBTI has been satisfied in the amount due by the (Judgement Debtor) or the mortgage and foreclosure order as previously referred to, has been cancelled or determined."
The statement of claim for the action indicates that GBTI is seeking a declaration that it is entitled to the proceeds of the sale at execution of the aforementioned property to the extent of the outstanding capital and interest due by Pitamber Persaud also known as Pytimbar Persaud in the sum of $5,228,445 together with interest at the rate of 22.75 per cent per annum from March 19, 2004 until fully paid; alternatively declarations that the sale at execution on behalf of the first named defendant of the property "is subject to the prior satisfaction of the first mortgage in favour of the plaintiffs" ; order for payment of the first named defendant in the given sum commensurate with the stipulated interest; an order that the advertisement for sale at execution of the property is bad in law and a further order setting aside the advertisement; an injunction restraining the defendants and/or their agents from selling or attempting to sell the property at execution sale pursuant to the advertisement and a declaration that the opposition to sale at execution entered by the plaintiffs is just, legal and well founded.
The matter is expected to come up in bail court on May 10 with GBTI represented by attorney-at-law Robin Stoby.