Section 14 petition filed under surfaesi act
PETERREXCHARLY
(Querist) 25 July 2012
This query is : Resolved
Dear Sir.,
I have filed a petition under Section 14 for granting Eviction order (representing a Bank) and filed the documents. One document, section 13(2)NOTICE sent to borrower was returned.Subsequently the Borrowers wife came to the bank and acknowledged the notice.The closed cover was opened and the notice given to the Borrowers wife.
Since the returned cover was opened by the bank, the learned Judge was apprehensive and seek legal citations for similar cases.All other procedural formalities are meticulously followed by the Bank and the records produced in the court.
Please provide the legal citations elsewhere.
Adv.Peter Rex Charly
advcharly@gmail.com
9894739694
c.p.s. ramachary
(Expert) 26 July 2012
Evidence of service of the 13(2) notice is placed on record by the bank. Whether service of demand notice is proper or not is not the matter to be decided by the Magistrate u/s 14 of the SARFAESI Act. It is within the powers of DRT.
No trial / enquiry / adjudication of any dispute by Magistrate is contemplated U/s. 14 of the SARFAESI Act:Muhammed Ashraf and Anr. Vs. Union of India and Ors. : AIR 2009 Kerala 14; Union Bank Of India Vs. State of Maharashtra & Others:2010 (2) DRTC 487 (Bom.). No hearing of borrower or guarantor by the Magistrate is also contemplated in the Act (Tensile Steel Ltd. & Anr. Vs. Punjab & Sindh Bank & Ors. AIR 2007Guj 126). Metropolitan Magistrate while considering an application under section 14 need not issue any notice to borrower or any person: A. Aboobacker Vs. PNB & others 2005 (127) CC 519(Kerala). Therefore the magistrate cannot encroach upon the powers of DRT. If no evidence is placed on record by bank about service of 13(2) notice, the magistrate can dismiss the request u/s.14.
RAJU O.F.,
(Expert) 28 July 2012
If the notice under Sec.13(2) was not served to the borrower, the bank had to affix the notice at door of the borrower and also to publish the notice in two leading papers, one in vernacular landuage sufficiently circulated in that locality, as per Rule 3(1)proviso.
K.K.Ganguly
(Expert) 29 July 2012
It seems you had filed the application u/s14 before CJM & not DM since it does not fall under the jurisdiction of the DM to seek citation for opening the envelope.
While disposing the Application u/s14 of SARFAESI ACT, 2002, the CJM verifies the serving of the notice u/s13(2) & the receipt thereof. In your case the said notice has been received by the wife of the borrower hence it is considered as good service. There is no necessity to bring the topic of envelope return etc.
JANAK RAJ VATSA
(Expert) 31 July 2012
the notice has been duly served to the wife of the borrower and acknowlgded by her which completes the process of service.
