Undue / illegal recall notice under section 13(2) of sarfaes

Latest Updates 2

Sale Notice is publish in news paper on 8/11/2012.the auction date was 12/12/2012. (as per THE SECURITY INTEREST ENFORCEMENT RULES, 2002 u/s 8(5) ).

The banks remain silent throughout the period.

We got to know through our well-wisher on 05/12/2012.

I rush to the lower requested him to take action on warfront.

Our Lower mention the urgency in Mumbai DRT III on 07/12/2012, And took S.A. for hearing on 10/12/2012. We informed to the said bank regarding date on 08/12/2012 by hand delivery of service notes.

On 10/12/2012 till lunch time removed all objection. At 4.30 pm the S.A. heard by honorable DRT III.

Stay was granted on conduction. Ask us to Deposit Rupees 1,00,000/- on or before 12/12/2012 and another Rupees 1,00,000/- before 12/01/2013, next date is given on 14/01/2013.

The bank remain absent in DRT III.

It was frustrating experience.

Question: does it is not mandatory on bank to follow u/s 8 (6) of THE SECURITY INTEREST ENFORCEMENT RULES, 2002.

 8. Sale of immovable secured assets (6) The authorized officer shall serve to the borrower a notice of thirty days for sale of the immovable secured assets, under sub-rule (5):

Raj

1) Why is it a frustrating experience? Finally you got a stay on the SARFAESI Proceeding till the matter is heard,

2) The A.O. has to serve you a 30 days notice for selling the said property,

3) Take up this fault of the Bank also by filing a  supplimentary affidavit to  the DRT with a prayer to set aside the sale notice.

Bank had to 1) serve 30 days prior notice to the mortgagor, 2) the sale notice had to be pasted on a conspecuous part of the property 3) had to publish sale notice 30 days before date of sale, in two leading papers one in vernacular language. All these conditions are to be satisfied as per Rules 8 and 9 of the Security Interest Enforcement Rules. If any of these conditions is not satified, DRT can set aside the sale. Find out as to whether Bank had illegally conducted sale on that day. Then file additional grounds and relief by amending the appeal.

Dear expert

The frustrating experience is that even we are in touch with bank, they have told us verbally but they remain silent over the period. What will happen if we don’t have get information in time? I was on bed because I was ill. Dos the bankers lost social aspect? For we it was never the question of not paying them, but what about our legal rights? Why they are again and again over riding on the low?   

1)    Serve 30 days prior notice to the mortgagor /borrower.

No they haven’t at list not to us Two Partner and sole guarantor. 

2)    The sale notice had to be pasted on a conspicuous part of the property.

No they haven’t pasted on a conspicuous part of the property.                                                    

3)    Had to publish sale notice 30 days before date of sale, in two leading papers one in vernacular language.

Yes but not in leading News papers? , as per my Knowledge in Marathi, Maharashtra Time, Loksatta, and Samna are leading papers’.                                    I don’t think Freepress journal is also English leading news paper in Mumbai.  The notice is on Net at (foreclosureindia) but it was miss guiding because property add is wrong.  

Raj

In such situation, file additional Petitions in DRT as advised earlier.

The issue is regarding NPA and Asset Classification

In partnership farm there are three partners, let say A, B, C, The partnership farm taken Term loan from the bank, all partners sign as a partner as well as on individual continuous guaranty. One of the partner also taken home loan from same branch/Bank.

The Partnership Term loans declared as a NPA. Now the question is that, is it mandatory on bank to declare the partner’s home loan also as a NPA,

(With reference to master circular 4.2.7 Asset Classification to be borrower­-wise and not facility­-wise   i) It is difficult to envisage a situation when only one facility to a borrower/one investment in any of the securities issued by the borrower becomes a problem credit/investment and not others. Therefore, all the facilities granted by a bank to a borrower and investment in all the securities issued by the borrower will have to be treated as NPA/NPI and not the particular facility/investment or part thereof which has become irregular.)

Dear expert the Latest in the case is that

Bank is not filling Reply/ Return in DRT from Last Eight month and delaying the mater by asking next dates?(in December we got Stay on Sale )  

Question is in case if we lose the case in may be next Two years, can we get exemption in Interest for bank delay in filing the reply/ Return in DRT?

I regrets the delay in front DRT Judge ,but he just given soft warning to bank Lawyer.

Raj

1. No. If you lose the case & your application is rejected, you shall have to pay the entire amount including interest accrued on the account but not charged,

2. Probably the Bank is purposely delaying the matter to ensure that the outstanding amount becomes more than 20% of the borrowed amount though it may not be acceptable in the eyes of law since the outstanding amount was less than 20% of the broorowed amount when Notices u/s13(2) & 13(4) of SARFAESI Act,2002 were issued by the Bank,

3. You have the option to file a put up application to exepide the  hearing of the matter.

Thanks Mr. K.K.Ganguly

1)    I understand that if we lose the case we have to pay entire amount i.e. Balance left+ additional charges of sale procedure +interest. But why we have to bear the interest for duration when Bank is not filing Reply/ Return in DRT from Last Eight month? Is there is any rules regulation? (There is less chances that We will lose the case)

2)    I also understand the tastes but on outstanding amount of Rs.6,51,000/-and interest @ rate 16.5% it will takes at list 2.5 years to reach outstanding above 20% of Rs.63,00,000/- (Principal + Interest + Penalty Interest)

3)    Dear sir You said “You have the option to file a put up application to exepide the  hearing of the matter”. Can you explain what do you men?

There is less chances that we will lose the case because

1)    NPA Deceleration is not as per RBI Guidelines.only 1.81 EMI Balance at the End 29/02/2012

2)    NPA Deceleration is not as per RBI Guidelines, Considering My Last Letter

3)    13(2) notice served and no reply is given 13(3A)

4)    13(2) notice served and not consider 31(j)

5)    U/s 8 (6) of THE SECURITY INTEREST ENFORCEMENT RULES, 2002. Sale of immovable secured assets (6) The authorized officer shall serve to the borrower a notice of thirty days for sale of the immovable secured assets, under sub-rule (5):

6)    The bank Lawyer rise issue that there is dispute between Partner Then who will Pay the bank.

My answer is Chef Justice Dual Bench of Mumbai directed bank to attend Arbitration as a second responding Party along with third Partner. (Further Single Branch of Mumbai Appointed retired Judge as an arbitrator.)    

Raj

Mr. Raj,

It is very difficult to get a matter adjudicated "finally" from the DRT. All u can expect to get is a stay on further proceedings by the Bank under Sarfaesi and that too, upon deposit of certain amount. All the points mentioned by u r not considered by DRT. The Act may say otherwise, but this is a fact. Even most of DRT Advocates do nothing to press against such attitude of DRT.

So get a good advocate to represent u b4 DRT. It is very important. 

1. When a matter is  delayed to be heard for whatever reason, any party of the said case can file a 'Put-Up' Application before the DRT with a prayer to hear the matter at the earliest date due to urgency,

2. In various DRTs at Kolkata, Put Up Application is a regular affair & half of the day goes to hear the same,

3. By filing the Put-Up Applicatin, upon serving notice on the Bank, you will get a chance to be heard by the Court  at the earliest available date,

4. Since, you already have received the stay order, the Bank, in all sanity, should agree for OTS,

5. Negotiate with the Bank.

Dear Experts

Even after DRT Clear Order to Deposit 2,00,000/- Rs and said amount should keep in FD , the bank is remitted in Term Loan account.

The order that ….The Respondent Bank shall not precede further under SARFAESI Act until further decision of the S.A. The amount Deposited shall be kept in FD and shall be disbursed as per final decision in the S.A.

Dos Bank can take such type of action without further order from DRT ?

1. What type of action you are apprehending that the bank might take?

2. The Bank has to act strictly as per the Order passed by the DRT,

3. If further action of the Bank under SARFAESI Act has been stayed by the DRT, then the Bank can not take any further step in this regard, provided the said Rs.2 lakhs amount has been deposited by you with the Bank in time.

Thanks Mr. K.K.Ganguly

           The amount is deposited in Two installment of 1,00,000/- Rs. each within Time, in fact before time with respect to said order. The stay is granted as per last Paragraph of said Order in my last letter. Yesterday we talk to bank and find that the Deposit 2,00,000/- Rs bank is remitted in Term Loan account

            Further we required Letter Conforming that CC limit closed and there is no transaction in current account, we have to submit the said letter to Service Tax Department. The bank is given only CC limit closed but Bank deny to give no transaction in current account ? in fact they have closed our current account.

Regards,                                           

Raj

Dear All,

 I have a small query.

Is13 (2) notice issued under SARFAESI  and  marked as "Without Prejudice', a valid and enforceable notice?. I feel that statutory notice cant be issued without prejudice or with any separate reservation of powers, other than what the statute has provided.

Discussion welcome. Any case law?