Notice u/s 13(2) & 13 (4) sarfaesi act, 2002
ADVOCATE K.N.JOSHI
(Querist) 27 September 2012
This query is : Resolved
Dear Experts,
Your kind consideration is needed to provide guidelines towards the remedy left with borrower in undermentioned case:-
1. The borrower was being sanctioned OD limit by the bank.
2. The OD account has been classified NPA & notice u/s 13(2) & 13 (4) SARFAESI Act, 2002 had served.
3. Bank officials say that notice 13 (2)
has been returned without being served , no specific reason given whereas the address on which it was posted is principal place of occupation of borrower & borrower always remain present there from 10 Am to 07 PM. Borrower never received that notice.
4. Current value of security (pledged property) is double of outstanding due.
5 On the date when notice u/s 13(2) served outstanding was 22 Lacs.
6. After 30 days of the notice served the bank officials sealed the premises .
7. Borrower deposited 10.00 Lacs towards oustanding after the action taken discussed in point 06.
8. Bank officials returned the keys of the sealed premises without any writing.
9. Borrower reopened the premises.
10. Now bank officials are asking for PDCs for rest outstnding due & threatning if such dues will not be paid , the bank will give notice of auction in daily newspaper.'
11. Borrower is ready to pay the ouststanding but needs sometime.
12. In addtion Bank officials has collected one Affidavit for the due outstanding with one Blank PDC cheque without sum filled.
ajay sethi
(Expert) 27 September 2012
total outstanding 22 lakhs . loan repaid 10 lakhs balance payable 12 lakhs . since bank has security double outsatnding amount advisable to settle with bank .
send aletter to bank recording entire sequence of event . regarding retun of keys by bank of selaed preises etc . offer to make balance payment in 6 installments .
ajay sethi
(Expert) 27 September 2012
if bank gives notice of auction in newspapers move DRT for stay of auction . mention 50%alrready paid . willing to pay balance amount in installments
ADVOCATE K.N.JOSHI
(Querist) 27 September 2012
Dear Sethi Sir,
Thanks for your kind revert. As per RBI gudelines before declaring any account NPA there are certain things which should be taken into consideration. Importantly the value of asset in comparision with due oustanding. In this case value of asset is double to outstanding . Will it be good plea to protest against the wrong categorization of an Account as NPA?
Your kind revert needed!
R.K Nanda
(Expert) 27 September 2012
to be on safer side take stay order from DRT.
ADVOCATE K.N.JOSHI
(Querist) 27 September 2012
Dear Nanda Sir,
As per revert of Sethi sir, Shall borrower write the bank first or seek appellate remedy directly for stay?
R.K Nanda
(Expert) 27 September 2012
go directly in DRT for stay as SARFAESi act
is DRACONIAN LAW .
ajay sethi
(Expert) 27 September 2012
try to settle with bank . simultanesouly keep your papers ready for moving DRT .
ADVOCATE K.N.JOSHI
(Querist) 27 September 2012
Dear Sirs,
Thanks for your valuable consideration & prompt advice in the matter.
You are the seniors , we should be proud of always.
Thanks again
Rgds
K.N.Joshi
R.K Nanda
(Expert) 27 September 2012
u r welcome.
Guest
(Expert) 27 September 2012
I support the advice of Shri Sethi about simultaneous actions. Better advise your client to make arrangements for honourable settlement of the account somehow or the other by borrowing from some other sources against some other property before the blank PDC proves dangerous and becomes the cause of damaging effect, or replace the said blank cheque with PDCs duly completed in all respects.
ADVOCATE K.N.JOSHI
(Querist) 27 September 2012
Thanks Dhingra Sir, But Kindly let me know , if i suggest the simulataneous action , on what grounds bank be asked for installments or any other releif. If bank remains adamant , seeking releif from DRT is only option left.
In addtion i would like to request your kind attention towards one more point . As my client has given blank PDC towards the due outstanding , Is it legal? Secondly If that blank cheque is replaced with PDC filled in all respect , it should be deemed payment as per NI act or not ? If yes can borrower ask for the no dues.
Rgds
K.N.Joshi
ADVOCATE K.N.JOSHI
(Querist) 27 September 2012
Sethi Sir,
Your kind advice needed once again towards my last query submitted in connection with PDC .
ajay sethi
(Expert) 27 September 2012
mention in letter that blank cheques givemn . request bank not to fill in amount date without consent of your client
Guest
(Expert) 27 September 2012
Only appropriate correpondence with the bank can establish that the bank has created compulsion for the client to give blank cheque without amount, which can prove that the bank, itself, has adopted unethical practices against the banking law. Such correspondence only can help before the DRT to establish that the bank, through its unethical and illegal practices, intentionally exploited the position of the client to create tense environments for your client that he was forced to part with the blank PDC, which is illegal practice on the part of the bank. Try to establish illegal practices on the part of the bank, o that bank itself becomes ready to allow time and installments.
You can, if liked, give a notice to the bank for adoption of illegal and coercive practices.
ADVOCATE K.N.JOSHI
(Querist) 28 September 2012
Thanks Dhingra Sir, There is one another improvement in facts of the case. The so called Pre-intimation notice of possession under sec 13(4) was served on 28.08.2012. Thereafter on 14.09.2012 symbolic possession was taken & premises was sealed. On the same date borrower was forced to submit one affidavit with promise to pay 10 lacs in seven days & rest within one month . Borrower paid that amount as per promise within week.On receipt of payment made Bank officials returned the key without writing .Presently Physical possession is with Borrower.
I would like to ask if we allege the procedure first that is notice u/s 13(2) was not received & in such way right of borrower to submit representation against the said notice was violated. In such an event whether bank can again take physical possession . On the second hand if we will not allege the bank in relation with procedural guidelines of the act,may the borrower right u/s 17 will get narrowed?
ADVOCATE K.N.JOSHI
(Querist) 28 September 2012
will that affidavit be admissible as conclusive proof for setting off the proceedings u/s 17 against borrower? If yes what should be done in the matter
Guest
(Expert) 28 September 2012
Dear Shri Joshi,
Would you like to discuss all the strategic points/ actionline openly, like this, where even any of the representatives of bank may also be observing opinions of experts to prepare for scuttling down the defence?
Don't you consider that to be sufficient to weaken your case?
I have already given one strategic point, as a thread to chalk out your future strategy in the case. But, if I reply to your present supplementary query that may not suffice to help you fully to gain control over your case, as I feel unidentified evidences would need to be brought to light and on record for which a series of questions (one after the other) are likely to arise in near future in pursuit of one suggested step. You may therefore need constant help from time to time to give your case a strong foundation till the case is not settled honourably. So, better try to take the help of some local lawyer. However, if you prefer to take my help to chalk out a strategic actionline, that can be possible after detailed examination of complete case history and related documents on my set terms. If agreed, you would be welcome to contact me through email for further detail by referring this post at: dcgroup1962@gmail.com
