Terry DCruz
02 April 2015 at 15:49
There is a writ petition (civil) pending before Calcutta High Court, Applellate Side.
After receiving the counter affidavit, i find that falsehood is clearly visible.
I want to file an application for perjury.
Since I am appearing in person-
I request to please guide me as to whether will it be C.A.N in WP or/ C.R.A.N in WP or any other form of application?
Terry DCruz
15 December 2014 at 23:07
My Case is :-
SME Loan was sanctioned in 2007.
There was change is Govt. Policy and my Business was under Prohibited list and thereby not generating profits to repay the installments as per the agreement.
Declared NPA 30.06.2010
Sarfaesi Notice was issued u/s 13(2)on 29.11.2010
Objection / representation filed within 60 days i.e on 26.01.2011. No reply was ever given by the Bank.
Business was sealed by the Government on 09.02.2011.
Though Bank had full knowledge did not make any efforts to help the borrower during this difficulty instead filed a money suit on 31.03.2011.
In written statement all facts were brought before the court and thereafter bank did not attend the court. Finally Money suit was dismissed for default on 1.10.2013. The restoration petition filed by Bank has also been dismissed on 27.11.2014.
With the efforts of borrower in other court cases Business was de-sealed and handed over to the borrower on 26.12.2013 in a dilapidated and damage condition.
Damage suit against the Government was filed on 06.04.2014
On 25.11.2014 Bank issued a fresh Notice u/s 13(2) making a demand of Principal + interest upto 24.11.2014.
The date of NPA is 30.06.2010.
The business was sealed on 09.02.2011, Causing supervening impossibility.
Ignoring all these aspects bank is making a money claim u/s 13(2) on 25.11.2014. the notice says to discharge in full the liabilities i.e the Total Amount.
1. Is it not barred by limitation of 3 years for money claim?
2. Can bank proceed after its money suit got dismissed?
3. When the business was sealed, repayment stopped as such the agreement is hit by section 56 of contract act, can the security agreement be enforced in such circumstances?
4. The account is classified as NPA due to fault of Union of India, ignoring such facts can Bank proceed against the borrower?
Terry DCruz
11 December 2014 at 16:58
Section 36 of Serfaesi Act says:-
36. Limitation
No secured creditor shall be entitled to take all or any of the measures under sub-section (4) of
section 13, unless his claim in respect of financial asset is made within the period of limitation prescribed
under the Limitation Act, 1963 (36 of 1963).
Claim is often made by a notice under section 13(2)to the borrower to discharge in full his liabilities.
For any money claim the limitation is 3 years so can a notice u/s 13(2) be issued beyond 3 years after classification of debt as NPA.
I request Experts opinion of this.
Terry DCruz
29 November 2014 at 10:40
My query before the learned experts are :-
Can a nationalised bank initiate action under 13(2) of Sarfaesi Act after dismissal of their money suit?
There is a clear bar from entertaining a fresh suit on same cause of action under CPC but can 13(2) be initiated?
Terry DCruz
28 November 2014 at 16:40
Dear Sir(s),
One of the Nationalized Bank has filed a money suit against the borrowers and guarantors; for recovery of loan, praying for attachment of the properties mortgaged with the bank. After the framing of issue bank did not effectively participate in the suit proceedings as a result the suit got dismissed for default. Bank did not even file any restoration petition for last 8 months.
Now after 8 months time the Bank is issuing notice under section 13(2) of Sarfeasi act.
Now the query would be :-
1) Is the 13(2) action is barred by resjudicata?
2) Can the borrower demand cost in counterclaim for filing a frivolous suit by the bank?
Note : The borrower could not repay the loan due to various external factors including change in government policy as a result the business was closed. These facts were suppressed by the bank while filing the suit. After framing of issue they did not come forward to contest the case as such the suit was dismissed for defualt.
Terry DCruz
08 August 2014 at 07:21
I had to file 2 different writ petition against the Government. Both cases are dismissed by High Court. These can also be tagged...
But now when I am going through the pleading of the cases it is clear that the affidavits filed by the Government in both the cases are patently false. My lawyers were unable to convince the Judge though one of the grounds taken in the appeal before the Division Bench was about the false affidavit.
Without going to Supreme Court what other remedy I have to re-open my cases.
I feel I may have to appear in person.
1. Whether an application under 340 CrPC or
2. An application under section 151 of CPC
whether such petitions are to be filed in the first court or the appellate court?
or is there any other remedy available?
Terry DCruz
24 July 2014 at 11:11
I have filed a writ petition by making Govt. of India and 6 officials as respondents. The affidavit is opposition is filed by none of the above officials but by some other official who is not a party to my case stating himself wrongly to be respondent no. 5 and filing the affidavit in opposition on behalf of other respondents as well.
can this be allowed. Any judgement on this point?
Anonymous
28 October 2011 at 17:57
I stood as one of the guarantor in an SME loan. The project was completed and some licences were not received for full fledged operation.
Meanwhile Govt. came up with a notification prohibiting all commercial activiting within certain areas. The unit also declared to be within that area and ultimately, govt. sealed the premises and took possession. The dispute between the proprietor and govt. is going on in a writ matter.
Meanwhile the bank after such sealing closed my FD prematurely without giving any notice. And when I made a representation to revoke my FD stating the above impediments which the unit is undergoing at present, the bank without replying to my representation filed a money suit for receovery by suppressing the facts pertaining to present situation of unit.
My query is :-
1. Whether security agreements entered into with the bank became void after sealing in accordance with section 56 of Indian contract act?
2. Whether closure of my FD after the unit was sealed by the Government is in accordance with the RBI guidelines?
3. Whether the bank has committed a fruad by suppressing the facts before the civil court while filing money suit?
4. Can I initiate a criminal action against the bank under 409, 420, 120B for taking my FD amount after a supervening frustrating event which automatically discharged me from the liability?
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Multiple 13(4) under sarfaesi
Dear Experts,
Please comment on the below situation.
After 13(2) Notice against 3 Mortgaged properties, after completing the formalities u/s 13(3A) bank issued notice under 13(4) against 1st property.
Within 45 days the Borrower challenged all actions like 13(2), 13(3A) & 13(4) by paying full court fee applicable as per the claim in 13(2). Matter is listed for January 2016.
Meanwhile bank issues second 13(4) notice against the 2nd property, which is situated in another State. Borrower wants to file a put up petition annexing the second 13(4) for early hearing of the application already filed under 17(1)
But the Registrar DRT says for the second 13(4) put up cannot be allowed and the borrower must file another 17(1). IS IT CORRECT?
How many times the borrower need to pay the court fees to challenge an illegal 13(2) notice? Only because he cannot approach DRT before 13(4) the challenge was made after first 13(4)