Can possession notice u/s13(4) of sarfaesi act be withdrawn & reissued?
K.K.Ganguly
(Querist) 17 December 2011
This query is : Resolved
Ld. Experts kindly opine.
My client Bank had issued possession notice u/s 13(4) of SARFAESI Act,2002 after which they have forgotten to publish the same in two papers as per rule 8(2). The client has now gone to DRT for setting aside entire SARFAESI proceedings on this ground. My question is.
1) What is the remedy before the Bank now?
2) Can the said notice u/s 13(4) now be withdrawn and reissued to publish the same in news papers with in 7 days?
Thanks in advance.
Anirudh
(Expert) 17 December 2011
Dear Mr. JSDN,
The querist is for the bank and not for the defendant. He wants to know whether by withdrawing the earlier notice u/s. 13(4), he can reissue the same and then publish the notice in the two newspapers as per rule 8(2), which in the earlier occasion he omitted to comply necessitating the withdrawal of the Notice u/s. 13(4).
Raj Kumar Makkad
(Expert) 17 December 2011
In the given facts, it shall be appropriate for the bank officials to withdraw their petition on technical grounds with permission for file afresh and thereafter should follow the prescribed procedure. bank customer otherwise also cannot take its benefit to the extent of right of bank to recover its lawful debts towards him but bank is required to follow exact prescribed procedure as it has to move ahead.
Nadeem Qureshi
(Expert) 17 December 2011
Mistake of law is not excusable, banker activities are very bad for their customer. shame shame shame, How can a Banker forget the rules & police of his master.
Devajyoti Barman
(Expert) 18 December 2011
1. Nothing, this ntoice has no force of law and is likely to be set aside by the DRT.
2. yes, that would be more wise. Issue fresh one for fresh cause of action.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 18 December 2011
There is no bar in the law to issue fresh notice and than comply with other requirements, it is am on going process.
RAJU O.F.,
(Expert) 18 December 2011
If bank did not publish the Possession Notice within 7 days of issue as required in Rule 8(2) of the Security Interest (Enforcement) Rules, the best option for the bank is to admit the mistake before DRT in the pending Securitisation Appeal filed by the mortgagor/borrower and withdraw the Notice u/S.13(4) for re-issue stricy adhering to the Rules. There are many judgments deciding that 'within 7 days period' is mandatory failure of which fit to quash such notice and further proceedings. DRT can also impose compensation by bank payable to borrower. When a draconian Act is on hand, in favour of the bank, it has to strictly follow all the measures under SARFAESI Act according to said Act & Rule provisions.
Raj Kumar Makkad
(Expert) 18 December 2011
I have already opined on the similar lines as Raju opined. Bank has every right to withdraw its earlier notice and re-issue it after curing its lapses. No benefit of this lapse can go in favour of defaulter of loan.
Guest
(Expert) 19 December 2011
I endorse the views of S/Shri Makkad and Raju.
