SARFAESI Act
G.Padmanabhan
(Querist) 11 June 2011
This query is : Resolved
Is there any remedy available to a borrower after sale certificate is issued by the Secured Creditor to an auction purchaser.
In a case, the secured creditor sold in auction , a security interest, in July 2010. Certificate of sale also issued. The borrower had moved DRT to get a stay on the sale. Interim orders of stay had been granted. After the expiry of the Interim stay period, the bank conducted auction and sold the property. Meanwhile the borrower, moved DRT and got an order of stay from dispossession. Now after issuing sale certificate nearly an year ago, the bank has obtained order from CMM under 14(1) of Sarfaesi act to take possession of the property through an advocate commissioner. Pursuant to the CMM's order, the borrower was dispossessed. Can a secured creditor obtain an order from CMM under 14(1) after issuing sale certificate?
If it is contrary to law, what is the option available to the borrower?
Has the borrower any remedy to nullify the certificate of sale at this stage?
Would our experts kindly enlighten me?
Ramesh
(Expert) 11 June 2011
Hello Mr. Padmanabhan,
In your case the auction proceedings appear to be conducted by the bank after the interim stay was vacated. In such a case the bank was right in its actions.The bank's action in obtaining orders from CMM after issuing the sale certificate is also legally right but you have furhter informed that the borrower moved DRT and got an order of stay from dispossession. What is the status of this order of dispossession? If the said order is in force then the bank erred in obtaining the CMM orders and dispossessing the borrower.Your remedy is to approach the DRT which issued the stat orders of dispossession and file a petition of violation of the stay orders. If the stay orders were not in force by the date of dispossession of the borrower then the bank is right in its actions.
prabhakar singh
(Expert) 11 June 2011
More so, was DRT's order served upon the BANK before it OBTAINED CMM'S order????
DEFENSE ADVOCATE.-firmaction@g
(Expert) 11 June 2011
on what terms the CMM court granted sale order, find lapses and go to appeal in civil route that is HC or Dt court depending on value.
