Sarfareasi act
atul mehta
(Querist) 24 March 2013
This query is : Resolved
what is the period of validity of collector order or district magistrate order granting permission to the bank under sarfaesi act to take possession of residential house.
In my case the bank took order one year back after my account was classified as NPA then during the period they did not take action as I paid slowly about 70 percent of the outstanding.
Now again the bank is threatening me that they can will take possession of my residence on the order given by collector one year back. please help me to know if the same is valid or they the bank was to take a new order.
Thank you for the cooperation
Devajyoti Barman
(Expert) 24 March 2013
Without wasting time file petition u/s 17 of the Act for injunction.
R.K Nanda
(Expert) 24 March 2013
take stay order from DRT.
Raj Kumar Makkad
(Expert) 24 March 2013
As you are already complying with your duty to repay the arrears/outstanding, the bank should not use such words but it seems that you are again defying it. It is better to clear the outstanding dues. Injunction is also a remedy but DRT shall also requie the clearance of the dues otherwise you shall not get the desired relief.
atul mehta
(Querist) 24 March 2013
I shall pay up the balance 30 percent but bank not ready to wait that is why just want to know specifically is the order of collectar which is more than one year old still valid or bank has to take new or say fresh order
Raj Kumar Makkad
(Expert) 24 March 2013
Order still holds good and bank need not to get updated order if the possession of the property is to be taken by it.
Devajyoti Barman
(Expert) 24 March 2013
File case in DRT for injunction. You would easily get such order.
Advocate Bhartesh goyal
(Expert) 25 March 2013
File appeal before DRt u/s 17 of Sarfaesi Act
17. Right to appeal.-
(1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, may prefer an appeal to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measure had been taken.
(2) Where an appeal is preferred by a borrower, such appeal shall not be entertained by the Debts Recovery Tribunal unless the borrower has deposited with the Debts Recovery Tribunal seventy-five per cent. of the amount claimed in the notice referred to in sub-section (2) of section 13:
Provided that the Debts Recovery Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section.
(3) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and rules made thereunder.
As you have already deposited 70% loan amount so you will get easily stay order.
Raj Kumar Makkad
(Expert) 25 March 2013
+Bhartesh ji! The author is asking whether the banker need to get fresh permission to take possession from collector or not and this limited question still remains unanswered. I was also eager to know your expert opinion in this regard because this question is new for me even.
K.K.Ganguly
(Expert) 26 March 2013
1. The DM passes Order upon the police (S.P.) to take physical possession of the property to handover to the Bank and the Bank pays requisite fees for arranging police to take over such possession,
2. There is no limit as to when the police will take the physical possession. In Kolkata some orders of DM passed before 2 years have not yet been executed,
3. You can file Application u/s17 of SARFAESI Act,2002 before he DRT with in 45 days from the date of the possession notice issued u/s13(4) of the Act which has been further confirmed by Calcutta High Court in the case of Akshat Commercial,
4. In your case possession notice u/s13(4) has been issued long back & DM's order u/s14 also has been passed long ago. In this case I doubt about any chance to get any relief from the DRT,
5. Negotiate with the Bank. This is the best option.
