Sarfaesi act matter -
Bharati Agarwal
(Querist) 17 February 2016
This query is : Resolved
My son was an additional Director in a Pvt Ltd company working for gain.There were two other Directors who were owners of entire shares of the company.The Pvt Company obtained loan from Bank and three residential flats were mortgaged towards it as security.One Flat belonged to me personally and other two flats belonged to other two partners personally.My son demised in a road accident two years ago while travelling on duty.The two Directors continued to assure release of my flat from mortgage and also to pay my sons"s dues.Nothing happened and slowly they have distanced them from us.About seven months ago, I received Notice under Sarfaesi Act from Bank to make payment towards loan amount due from the company but the Directors did nothing to save me. Then Bank people came and pasted a Ntoice of Possession on the Gate of the Flat and published a Notice in the Newspaper giving details of loan amount and also details all three flats.The Directors, again, did nothing for us.I approached a Banking matter advocate, who has filed an application with local Debt Tribunal against Bank.I am told that the Bank has also filed a case at same Tribunal against the company and all of us, the two Directors and myself, but no notice is so far received by me as yet.On the advice of my advocate I met Distt Magistrate to find out as the Bank"s agent was threatning me to take possession with DM"s order.I was told by DM Office that the Bank has made application to DM for seeking his permission for taking possession of all three Flats with local police help.I was also told that DM office shall do as per law and shall not be able to extend any assistance in the matter to me.But while going through the Application made by Bank to DM Office( by DM Office executive to match details of my flat with my documents) he suddenly found that out of three flats, the details of one Big Flat belonging to one of the Director has been totally defaced By Whitner Pen, so the name of three mortgagers appear but details of two flats are only there.Also the related documents of only two flats are enclosed. Such Defacing is done in the application part and also in affidavit part but no counter signature etc is done.It showed the intention of Bank to hide schedule/detail of one flat out of three flat.The DM office also surprised on such Defacing and assured me to do as per law after seeking advice from their senior people but they also sensed some hide and seek in this matter.I explained all to my advocate who has told that this is a clear case of malpractice by Bank in collusion with one of the Director to save his flat from taking possession as DM office shall only give order for two flats(if they do not return such application)The advocate advised to file a criminal case against the Bank and the Director and also a Civil case against the two, but with the help of different criminal and civil advocate as he only deals in Banking matter with tribunals.
Sirs, as a lay man, I also feel there is gesture of cheating by someone(may be Banker, its agent with one of the Director) but I am not getting confidence and courage and is also shakky as to if I am at all authorised to file such criminal and civil case and if filed, shall I get any benifit or any justice.I am fighting tooth and nails to save my flat without much results so far and as a family of limited sources and help, the matter is really big and of big tension to me.I am not asking you with any remark against my current advocate but as he is not fighting criminal cases he is advising to so with other one of the subject.Hence i seek your opinion about my right and ways and means to stop such level of cheating..Please give help..Thanks, urgent matter please.
Dr J C Vashista
(Expert) 17 February 2016
Be precise in your query or consult a local lawyer.
Rajendra K Goyal
(Expert) 17 February 2016
Bank can recover its outstanding from all / any of the director or property mortgaged.
If there is some unauthorized alteration, consult with some lawyer dealing in criminal cases.
Meanwhile send RTI to get information from Bank / DM office regarding the documents, alteration in the documents etc. You can also lodge complaint to vigilance department of the Bank regarding this.
H.M.Patnaik
(Expert) 17 February 2016
Agree with expert advice given above in the light of background of the case.
In case the bank have filed a case for recovery of dues before the jurisdictional Debt Recovery Tribunal, you will be served with a copy of the petition for contesting the case .Otherwise with the help of your Banking lawyer you can obtain a certified copy of the said petition to find the details of mortgaged property , so that the next course of action can be advised.
Besides, the bank can not take parallel action for recovery of dues as per Sarfesi Act i.e. during the pendency of DRT proceeding , it can not issue property attachment notice on its own.
Also pl. find out from from the local Registrar of companies or MCA site when Form-32 was filed by the Son's company regarding death of the Director .
P. Venu
(Expert) 08 May 2016
The residential flat belongs to you. Then how could the company or you son could have mortgaged the flat?
