Sarfasi
gyanprakash
(Querist) 18 July 2012
This query is : Resolved
SODH Limit 50 Lacs , BG Limit 10 Lacs
Notice under 13(2) dated 9.12.2011 received on 24.12.2011. (Renewal Pending) Demand 52,00,974
Demanded Copy of Sanction Letter, Loan Agreement & Gaurantee Agreement, Bank Statement, Hypothecation Agreement, UREM of Mortgage Property on 03.01.12 Reminder on 16.01.12
No Answer, Required Papers not given.
Deposited Rs 2,90,000 on 14th Jan 2012 Balance brought down to 49,98,887
Till 25th March limit went upto 51,62,704
Deposited 1,93,000 on 26th March balance brought down to 49,69,704
Renewal took place in between.
On 28th May Bal 51,24,780 Deposited 1,10,000 on 23rd June 2012.
On 10th July Bal 51,70,000 Approx
Served Possession Notice on 10.07.2012 mentioned wrong date of 13 (2) as 09.01.2011 insted of 9.12.2011.
WHAT IS THE REMADY. IS Notice under 13(2) is expired when we have deposited 3 times. They have also not given required papers.
To my view Notice dated 09.12.2011 is expired. Fresh Notice under 13(2) is required before the possession Notice.
Pl help.
c.p.s. ramachary
(Expert) 18 July 2012
If the bank has not provided you copies of the loan documents and sanction letter you may complain to BANKING CODES STANDARDS BOARD OF INDIA ( B.C.S.B.I.) .IBA acts as help desk. You have availed secured overdraft and bank guarantee facilities.If the secured overdraft is out of order for more than 90 days the account will be identified as NPA. An account should be treated as ‘out of order’ if the outstanding balance remains continuously in excess of the sanctioned limit/drawing power. In cases where the outstanding balance in the principal operating account is less than the sanctioned limit/drawing power, but there are no credits continuously for 90 days as on the date of Balance Sheet or credits are not enough to cover the interest debited during the same period, these accounts should be treated as ‘out of order’. If your above SODH account is out of order as explained above your payment of Rs2.90.lacs is not sufficient to upgrade the account to Performing Asset (PA). 'Record of recovery' is also most important factor for considering your request. You may contact the bank and pay the dues up to date for up-gradation of the account based on the record of recovery.
Mentioning a wrong date about 13(2) notice is technical defect and the same does not operate as shackle to the cause of action under the SARFAESI Act. Further the 13(2) notice does not expire on payment of the overdues in the account unless the bank is satisfied with the amount so paid. Do not enter into litigation for these technical mistakes. As the possession notice is also served and much water has already flown as on now, please contact the concerned zonal manager of the bank without further loss of time for necessary help inthe matter for up-gradation of the accounts by rectifying the defects in the account.
gyanprakash
(Querist) 18 July 2012
Needs others views also.
K.K.Ganguly
(Expert) 20 July 2012
Rightly advised by Mr. Ramachary. However,you can also do the following for temporary relief.
1) File an application u/s 17 of SAFAESI ACT,2002 praying, inter alia, for a stay for taking possession of the mortgaged property on the ground that you have not received the Demand Notice U/s 13(2) dated 09.01.2011 and the possession notice based on non existant demand notice is invalid.
2) Check whether the Bank has published the possession notice in two local dailies, one being in vernacular, as per Rule 8(2) of Security Interest (Enforcement) Rules or not. If not, then this is also a good point to ask for setting aside the entire faulty SARFAESI proceeding.
3) Immediately write to the Bank for settlement and await its reply to act accordingly.
However, at the end of the day, please keep in mind that you shall have to pay the outstanding amount & SARFAESI ACT has been enacted for recovery of outstanding bank Loans. There is no escape.
RAJU O.F.,
(Expert) 21 July 2012
Fresh Demand Notice under Sec.13(2) is not necessary, since your loan status still remains NPA. Immediately prefer a Securitisation Appeal u/S17 of the SARFAESI Act within 45 days from 10-07-2012 through an advocate practicing in your jurisdiction DRT
Saibal Guha Roy
(Expert) 24 July 2012
You have not mentioned what security has been created in favour of the Bank. Denying recipt of 13(2) notice will not help if the Bank has acknowledgement of receipt by you. Each suit has its own charcteristics and without details of security, it is not possible to suggest a remedy. Engage the services of a Local advocate to file application u/s 17. Further, please remember that all such demands for getting documents is more fruitful if the request is made under RTI Act.
