Sarfaesi-drt
jayaprakash
(Querist) 25 May 2013
This query is : Resolved
In DRT OA is disposed of in terms of compramise joint petition filed by the bank and the principal borrower ie D1 And D2,Recovery certificate as per the compramise decree is also issued at the request of the bank against D1 And D2 as principal borrower has defaulted the terms of the compramise.Iam the D9 (one of the guarantor)AND no recovery certificate is issued against me or against my mortigaged property.Inspite of this being the senario the bank has come and served me pocession notice under 13(4)saying that inspite of DRT judgement and recovery certificate(issued about 15 days back)they have rights to go ahed by SARFAESI route.My question is (1)can bank go ahed like this ignoring DRT judgement.(2)if no what are the options available to me to fight this senario.Can i file criminal procedings against the bank(3)if i go to DRT basing on 13(4)notice should i have to pay the court fees and will drt ask for any pre deposite(for the debtwhich is not determined against me atall it is determined against D1 AND D2)
DEFENSE ADVOCATE.-firmaction@g
(Expert) 25 May 2013
You want to dig well after fire has erupted,you should have shown such alertness while signing the agreements of guarantee with the lender.
Lender has all the rights to attach your property till the dues are cleared irrespective of consent decree.
However you can create third party objections against possession for which a seasoned advocate only can help.
R.K Nanda
(Expert) 25 May 2013
consult local lawyer.
K.K.Ganguly
(Expert) 30 May 2013
1. Original Application (O.A.) is filed as per Recovery of Dues due to Banks & Financial Institutions Act. This is different from SARFAESI Act and actions against both the acts can go simultaneously,
2. Bank has issued Notice u/s13(4) of SARFAESI Act,2002,
3. You being the guarantor shall have to file SARFAISI Application (S.A.) u/s17(1) of SARFAESI Act,2002 within 45 days from the date of the said notice,
4. Since you are the guarantor, you shall have to pay the requisite fees to the DRT while filing the S.A.,
5. Engage a local lawyer specialised in this field.
jayaprakash
(Querist) 30 May 2013
k.k.Ganguly
sir,actions in both SARFAESI&DRT can proceed simultaneously as long as COURT i.e DRT has not pronounced the DECREE or judgement.In my case Judgement and Decree is given and DRT has determined the liability only on D1&D2(IN VIEW OF JOINT COMPRAMISE SETTLEMENT BETWEEN BANK AND PRINCIPAL BORROWER WITHOUT THE CONSENT OF GUARENTORS ie D9)AND accordingly DRT issued recovery certificates on the properties belonging to D1&D2 only.
My question is inspite of DRT determining the liability ONLY & ONLY ON D1&D2, can bank ignore that judgement, and try to invoke SARFAESI procidings against a person on whome DRT has not determined any liability at all
K.K.Ganguly
(Expert) 30 May 2013
I have revisited your quiery & my opinion is as under after plain reading your narrated facts presuming that there is no rider on the settlement arrived at by the Borrowers & the Bank & the consequent judgement is not conditional i.e. the settlement is not based on some condition to be cancelled in case of not satisfying the said condition.
1. Since the Bank & the Principal borrowers have arrived at a written settlement placed before the DRT based on which the unconditional Judgement has been pronounced, the Guarantors stand relieved of their liabilities on the said loan,
2. So, it is a fit case for you to file application u/s 17(1) of SARFAESI Act,2002 to get the said Possession Notice set aside.
jayaprakash
(Querist) 31 May 2013
K.K.Ganguly sir
thank you very much for your valuable opinion.As far as i know There are no riders on settlement arrived between bank and principal borrower,
if the rules of this forum allowes i wish to send you an copy of decree and recovery certificate for your valuable persual and opinion.(if you can send your mail id)
iam planning to file application in drt as suggested by you.
i came to know that bank is planning to file an review patition on final order.My doubt is if P.O considers any change in the order ,what is the procidure will i be given chance to contest,suppose the order is changed what are the options available to me to fight the case further
K.K.Ganguly
(Expert) 31 May 2013
1. Do not wait for their taking steps to make a change in the Order.
2. This is your opportunity now to immediately file Application u/s 17(1) of SARFAESI Act, 2002 to get thr Possession Notice set aside and get relieved from your liabilities,
3. My apprehension might come true. When both the parties settled the matter, why should the Bank issue Possession Notice? It may be a wishful thinking to treat that possession notice as a mistake committed by the Bank,
4. So, file the above Application and move a put up petition immediately praying for earliest hearing to get the matter heard and get the said Notice set aside,
5. Otherwise you will be back to square again if the Bank can manage to change the order adding some rider/condition on the settlement proposal/agreement.
jayaprakash
(Querist) 01 June 2013
thank you sir
my advocate has promised me that we can file application in 2 to 3 days
