Re : possession under sarfaesi
somesh
(Querist) 30 October 2013
This query is : Resolved
Dear Sir,
The bank has given me a notice u/s 13(2)which says i have to pay the dues within 60days (60 days will be finished in this week)and i managed to pay 20% of the whole due after receiving the notice and given a request letter to cooperate with me and help me to come out clearly from this situation. my plea has fallen to deaf ears.
Now my query is i have given my property (office and residence)as collateral
1) can a bank evict me out of my residence?
2) can a bank decide which property shall be evicted first or there is a hard & fast rule to evict office premises first?
3) i have debtors of around 30% of the whole amount in the market which might realise in 3 to 4 months, can i request them to take possession of my office (as debtors + office premises would suffice and settle the whole dues)and leave me out of this?
4) lastly some of my friends sympathized me saying that bank cannot evict me out of my residence as its only the place you reside in, they can only take symbolic possession (is it true)?
Thanks in advance
Devajyoti Barman
(Expert) 01 November 2013
For protection against eviction from property, file an application u/s 17 of SAEFAESI Act in DRT.
Vijyant Nigam (09807349001)
(Expert) 03 November 2013
the bank has send you simply a demand notice under section 13(2). bank is not yet authorised to take possession.
when the debtors account become Non Performing Asset, then the bank take action under the Securitisation Act.
it sends you notice under section 13(2) of the securitisation act, it is called the demenad notice to pay the dues within 60 days.
if you had any problem or if you find that the bank has given you a wrong notice then you have right to send a written objection/reply within 60days.
you are telling that you have managed 20%, so it is advisable not to deposit anything now... file your objection/reply/request which the bank has to dispose of by accepting your reply/request.
if the bank rejects your reply then the bank may send you another notice under section 13(4) which is called the Possession Notice and thereafter you will get the remedy to file application under section 17 before the Debts Recovery Tribunal of your region.
Bank started legal process so you also go with your legal remedies and not pay even a single penny to them without taking legal recourse as the money that you will pay in good faith, the bank will utilise it in decreasing the interest part only and your principal amount will remain as it is.
file a written objection before lapse of 60 days taking grounds that the bank has never provided you the Loan Agreement copy or the amortisation schedule of payment etc. depending on your case.
there must have some points of your favor in your case, which demoralise the bank and it will come on some One Time Settlement Option.
Vijyant Nigam (09807349001)
(Expert) 03 November 2013
to understand about the possession by bank under the securitisation act, please follow the link below, (copy the link below and paste in your address bar:
http://www.lawyersclubindia.com/forum/Notice-under-Section-13-4-of-SARFAESI-Act-2002-3486.asp#.UnYuL3BHJJs
this is my four years old discussion on possession under the Securitisation Act.
wish you all the best
Vijyant Nigam (09807349001)
(Expert) 03 November 2013
appeal under section 17 can be preferred within 45 days from the date of possession of section 13(4). bank can sale the property even after the appeal is filed, if there is no stay in the said appeal.
Sreedhar Valiveti
(Expert) 29 November 2013
Dear Somesh,
1st let you know one thing – when you have given a request in writing with the bank, then it is the burden of bank “either to accept or reject – with valid reason” to you within 15 days from the date of receipt of your notice – but as per your query it is silent in this scenario. If it has not given any reply imagine that the 60 days notice is null and void and bank lost its right to evict you from your property. Inspite of this if bank proceeds then you are having every right to approach DRT of your jurisdiction area under sec.17 which will protect your interest.
2nd thing, Bank if (as stated supra) given suitable reply to you, then it may take possession (symbolically only) but can’t evict you directly without taking assistance of Metropolitan Court or District Collector. Hence it will take some time. (against your 1st point)
3rdly Its purely bank’s discretion to proceed either against your office or house (against your 2nd point);
4th thing is in the mean while of above process you are having every option to get 3 or 4 months time mobilize your debtors and to turn your money for your needs. Hence, don’t give any chance to anybody (bank or debtors) to take possession of your property as your intention is genuine in repaying the dues to bank in 3 / 4 months;
5th thing is Your friends suggestion is exactly true.
So don’t worry and concentrate on mobilizing funds in clearing dues as early as possible and your properties and interest will be protected even by DRT also.
