Pls answer the following Query:
A year ago, the Banker has sent the Symbolic Possession u/s 13(2) to the Borrower / Guarantor (Parties) and the parties gave representation u/s 13(3A) to the Bank by raising some mistakes done by the Lender / Banker. Further, the Banker has sent Physical possession notice u/s 13(4) and at that time, the Parties paid a fair amount (almost the principal amount of the loan) and make the notices “NULL & VOID”. Later, they asked for the OTS & tenure extension. The then Manager of the Bank agreed to do so but there is no proper response for about a year and, the parties were in faith of getting OTS. However, started repaying some amount genuinely. But now, without serving notices properly to the parties, the Banker has now taken Physical Possession, saying that they had sent notices afresh and the parties didn’t act upon to that.
But this time, actually, the "(new) Symbolic Possession notice" u/s 13(2) has not been served to the Borrower / Guarantor properly since the Banker has mentioned an “incorrect / wrong correspondence addresses” of the Borrower/Guarantor. Also, they are saying that they had sent to the mortgaged property address where only the tenants are living in that mortgaged property but the Borrower / Guarantor lives in some other address and they already given their living address as correspondence address to the bank (mentioning Change of Address) but the Banker didn’t sent the Notice to the correspondence address which makes the Borrower / Guarantor non-receipt of the Symbolic Possession Notice.
So, the Borrower / Guarantor unable to give objection / representation to that notice u/s 13(3A) or to act upon that notice. This shows that the Banker didn’t give time to the Borrower & Guarantor to give their representation, and tactfully, cunningly invoked the Physical Possession u/s 13(4) in the intention of selling the property and published in the News Papers, too, about the physical possession. Now, the Banker locked up the Guarantor's property when the Guarantor had gone out of station and also forcibly vacating the tenants? If asked the tenants about the notice, they are saying that they were not aware of those notices and the postman didn’t tell anything about the notices. I believe it is not the tenant’s or postman’s job to notify the party as they may not aware the subject but it is the Banker’s sole duty to serve proper notices. Isn't it?!
My view is that both the recent notices (Symbolic & Physical) were NULL & VOID as they didn't post to the Correct address and/or didn't given time to act upon that notice served. But, how come the Banker has taken the PHYSICAL POSSESSION? Thus, the Banker creates defamation to the Guarantor / Borrower with their rude approach. Can the Parties sue the Banker and give police complaint against Banker for trespassing the Mortgaged Property? Whether the Parties to approach the DRT or CIVIL Court in this matter? Can the Borrower right to break the lock which was put illegally by the Banker and enter into the property? Because, they (Banker) didn't get the DM / CMM order till now. Will there be any legal implications by doing so? Or, can the parties take photo / video of the locked property and handover the same to Policemen and take action against the Banker for their illegal act?
However, now the Party (Borrower) started paying the dues to the Bank and updates / regularize the loan account. Recently, the Borrower paid around Rs. 2 Lacs (Rupees Two Lacs) towards his Loan A/C in the span of one week time and asked the Bank to restore the possession. But, the Banker did not oblige to restore the physical possession or to revoke the legal actions and not soft to the Borrower. HERE, MY QUESTION IS WHETHER THE SERVED DEMAND NOTICES 13(4) / RULE (8), ETC., BECOMES “NULL & VOID” SINCE THE BORROWER STARTED PAYING THE OUTSTANDING AMOUNT AND UPDATES THE ACCOUNT? IF SO, HAS THE BANKER TO INITIATE THE SARFAESI ACT AFRESH BY SENDING THE DEMAND NOTICE U/S 13(2) AGAIN AND GIVES 60 DAYS MORE AS IN THE SAID ACT? OR, THEY CAN PROCEED WITH THE EARLIER NOTICES? IF THE BANKER IS NOT SENDING THE NOTICE U/S 13(2) AFRESH, CAN THE BORROWER SUE THE BANKER AND COMPEL / INSIST THEM TO RESEND THE NOTICE U/S 13(2)? IN THIS CASE, WHETHER THE BORROWER HAS TO APPROACH DRT OR CIVIL COURT?
Thanks in advance.
