Sarfaesi act
Ritika singh
(Querist) 15 February 2013
This query is : Resolved
my client is a bank which needs to proceed by notice under section 13(4) for possession under sarfeasi however the secured asset is a shed with 200 animals ....what is the procedure prescribed or are there any prescribed guidelines for teh same ???......urgent action is required in the matter.
ajay sethi
(Expert) 15 February 2013
The Bank will take symbolic possession of the property which they have mentioned in the notices u/s13(2) & 13(4) of SARFAESI ACT,2002 issued by them.
Actual posasessionbs are taken with the help of Police after applying to DM or JMM u/s 14 of the Act asking for Police help & copies of the notices are required to be enclosed alongwith such applications
Khaleel Ahmed Mohammed
(Expert) 15 February 2013
Bank can not take possession on its own. The bank should file a petition before Debts Recovery Tribunal.
Devajyoti Barman
(Expert) 16 February 2013
Have a book on SARFAESI Act first and go through it.
It is everything there and if you find anything difficult then come back to us again.
Anirudh
(Expert) 16 February 2013
Dear Mr. Khaleel,
As indicated by Mr. Ajay Sethi, Bank can take physical possession after obtaining orders from the DM or JMM or ACMM as the case may be u/s 14 of the Act. Therefore, it is not correct to say that the bank can take possession only by filing a petition before the DRT.
R.K Nanda
(Expert) 16 February 2013
agree with Sethi.
Ritika singh
(Querist) 16 February 2013
can the land on which the shed is built be read as an agricultural land within the meaning of exception under section 31 of sarfaesi
prabhakar singh
(Expert) 16 February 2013
As per section 31(i)the ACT DOES NOT APPLY TO AGRICULTURAL LAND.
ONLY EXISTENCE OF SHED CAN NOT CHANGE THE NATURE OF LAND IF IT IS STILL RECORDED AS AGRICULTURAL LAND IN REVENUE RECORDS OF RIGHTS AND NO PERMISSION TO CHANGE THE NATURE OF LAND WAS GRANTED BY SDM. SHED CAN BE RAISED EVEN FOR AGRICULTURAL PURPOSES.
R.K Nanda
(Expert) 16 February 2013
no more to add.
Raj Kumar Makkad
(Expert) 17 February 2013
I do agree with the advice of Ld. Prabhakar Singh.
Khaleel Ahmed Mohammed
(Expert) 17 February 2013
Dear Rithika,
Bank should approach to the Bank DRT to take any action. All unneceesary discussions would confuse the subject. You can advise your banker to file before Bank DRT.
Ritika singh
(Querist) 18 February 2013
thank you everyone ........DRT does seem a viable way out
prabhakar singh
(Expert) 18 February 2013
So here lies the real question"however the secured asset is a shed with 200 animals "
In fact I answered your 2nd post.
And now I make the point clear let bank go to DRT as the property taken in security is agricultural with in meaning of section 31(i)of the SARFAESI ACT,2002 ,and bank can not proceed on it's own under SARFAESI ACT,2002 hence opinion of Mr.Khaleel which reads"Bank can not take possession on its own. The bank should file a petition before Debts Recovery Tribunal."PERFECT IN ALL RESPECTS FOR THIS QUERY.
K.K.Ganguly
(Expert) 20 February 2013
1) If the mortgaged property is originally an agricultural land on which the shed has been constructed then the SARFAESI proceeding can not be initiated on the said property. So, the question is whether it is originally an agrcultural land or not. By constructing a shed on an agricultural land it's character can not be changed to non-agricultural land. Similarly since it is a cow shed, it can not be called an agricultural land,
2) If it is not an agricultural land, then the Bank can certainly take actual possession of the property after issuing possession notice u/s13(4) of SARFAESI Act,2002. If actual possession is denied by the borrower or the occupier, the Bank can take symbolic possession and further apply to DM u/s14 of the Act for arranging to take actual possession for the Bank,
3) The Bank can also file an Original Application as per Recovery of Debts due to Banks & Financial Institutions Act,1993 before the DRT for realising the outstanding by selling the property by the Recovery officer,
4) However, if the Bank takes over actual possession of the cow shed after initiating SARFAESI proceeding, it has to make an inventory of the items found in the property including the cows & shall have the responsiblity to maintain the cows also which may not be an acceptable proposition before the Bank.
