Third party rights in SARFASI Act problems & suggestions

The present situation of third party rights in the SARFASI Act is that, possession of third parties cannot be taken by adopting measure under Section13(4). Third party is not given notice under 13(2), taking possession from a third party in such a manner is not contemplated in SARFASI. Here the Supreme Courts have played an important role in establishing third party rights, and giving symbolic possession to the Banks/FI. And if the Bank/FI needs to realize the secured assets they can do so according to law which governs the rights of tenant/lessee.

But as we know SARFASI Act was established to for the speedy recovery of ever mounting Non-Performing assets. And the banks are not meant to follow the local laws of the different states and go through the separate laws for separate cases. It is time consuming and create barriers for the bank in the realization of real value of the mortgaged assets, in the auction/sale and it is detrimental to the interest of borrower.

Suggestion:

1. It has been seen that many times banks commit mistakes while mortgaging properties,

Banks need to be careful while mortgaging property against the loan, banks need to do proper inquiry of about the property and those interest are concerned with the property that is there any third party rights existed at the time of mortgaging, if yes the banks need to consult this with the person (mortgagor/lesser) and third party so that it may not create any problems in near future in case of realization of the value of property.

2. Reserve bank of India is the supreme authority and regulatory body in the banking sector of our Economy, which frames the policy and give direction[1] in various issues in banking sector time to time for the betterment of banking industries. RBI has given many guidelines in the securitization of asset and declaration of assets as Non-performing assets. Now Reserve Bank of India should issue guidelines regarding the third party rights with SARFASI Act. Where the guideline should address each issues which creates hurdles for the banking sector in realization of mortgaged assets. And the relationship between the Bank and Third parties should be specified and with the mentioned term and conditions.

3. The bank should give notice of 60 days eviction to the borrower and the third parties whose interests are also concerned with the mortgaged property, DRT/Courts should have power to adjudicate the matter separately for the interest of the third parties,[2] if it is found that third parties has legitimate interest in the mortgaged property then, bank should not go for the auction till the final adjudication of the property.

4. If third party rights are created after the mortgaging the property in the bank the borrower need to inform the bank about the third party and if the third party rights are created then the consultation of the bank should must be taken, and bank should dictate the terms to the third parties so that the third parties may not create problems in seizing and realizing the value of properties.