Sarfaesi- 13(2) can be issued many times, but 13(4) ?
s.loganathan
(Querist) 25 September 2010
This query is : Resolved
1. Sarfaesi 13(2)is issued.
2. Possession taken after 60 days u/s 13(4).
3. During possession I object, since representation u/s 13(3A) not replied within mandatory period of 7 days, and also schedule of property differs, but not taken heed of and served notice and affixes notice on wall.
4. I receive the possession notice and and endorse my objections to the illegality of the notice and get the accompanying Notary Public to witness it.
5. Bank fails to make mandatory paper publication within 7 days.
6. After 1 month, I get a 'Fresh Notice' u/s 13(2).
7. I object u/s 13(3A) saying possession had already been taken, and issuing a 'Fresh' action again u/s 13(2)without restoring possession to me, or abandoning their right to the first notice.
8. I also send an advocates notice and he raises several questions of law and explanations, and allegations of deficiency.
9. Bank gives reply by making false claims that they did not make paper publication on my request and since the publication of possession notice was not done, the possession can't deemed to have been taken by the Bank and the question of re-delivery does not arise at all. Bank also includes their previous reply to the first 13(3A), to be part and parcel of this reply (which should mean that this notice is in continuation of the first action ).
10. I refute the claims of the Bank that they had rescinded on my request and further state in my reply that possession was taken and I obliged to the statutory provisions and endorsed my objection on it.
11. Now, after 5 months, without replying to my advocates notice and questions, or to my letter of refute, the Bank comes and affixes another possession notice on the outer wall of my house and sneak a copy into the 'milk box'.
My question is specific. It is an established fact that the Bank can send and resend 13(2) notices, but once they have crossed that process and resort to the next step (i.e. 13(4) ), can the Authorised Officer having taken possession, without re-conveyance of property or notice to abandon process, issue another 13(2) for the same property already taken possession?
s.subramanian
(Expert) 26 September 2010
Even at the first instance itself you ought to have approached the DRT under Sec.17 with all your objections which are very sound,legal and valid. By doing so you could have quashed the earlier proceedings on the grounds of illegality and malafides.Now as you have rightly pointed out the further proceedings of the bank are grossly ilegal and malafide. You can approach the DRT for redressal at once.
