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Ramachandran (Dir)     09 January 2010

SARFAESI ACT

Bank issued sale notice after 5years from the date of possession notice  under SARFAESI act  for two family firms , the properties given by the borrower were common for both the firms .

One of the firm obtained stay in High Court against the sale notice all the properties are mentioned in the sale notice  . The bank  confirms   sale of the properties  in other firm . Now kindly let me know if that sale is valid . Is it a condempt of court or not .

If invalid , then could you please give some past judgements -reference 

Your earliest reply will be highly appreciated 

 



Learning

 2 Replies

Ramachandran (Dir)     09 January 2010

 Also inform if there is any limitation for issuing sale notice 

 

R.R. KRISHNAA (Legal Manager)     09 January 2010

I don’t think there could be any contempt of court.  It is your duty to file a separate case similar to the earlier case and obtain an stay in the court stating that the properties are covered by both the firms and try to stop the present proceedings initiated by the recovery officer.

 

 

With regard to limitation period of issuing sale notice, once an immovable property is attached it should be sold within 3 years from the end of the financial year in which demand notice has been served on the debtor.  The sale is not permitted after the expiry of this period and such sale after the expiry of the 3 year period is invalid.  The latest judgment by the division bench of a High Court confirms this.  But the provisions of the act says that the 3 year period (limitation period) shall be subject to exclusion of the period during which the proceedings of attachment or sale of immovable property are stayed by an order or injunction of any court.  This means that in your case, the time period of court proceedings shall be excluded from the 5 years period. Hence in your case if the remaining available period after deducting the time period spent in court proceedings is less than 3 years, the bank is entitled to issue sale notice or otherwise the notice is wrong. 

 

 

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