How to cancel notice under section 13(4) of sarfaesi act.

Since the property is mortgaged and loan had become NPA, the Bank is well within their right to issue notice u/s 13(2) followed by another notice u/s 13(4) of the SARFEASI Act, 2005 before proceeding to auction the property to recover outstanding amount.

Move to the jurisdictional DRT to seek a stay order thorugh a local prudent lawyer, if you are unable to get it sorted out with the mortgagor Bank amicably.

Thanks so much sir for replying. But Apart from moving to DRT for stay order, How to could I go for Declaration of the Sale Deed null and void on account of non receipt of the consideration amount of the Sale Deed? What are the other legal remedies available for me to save my flat from auction? Should I, 1st move to the civil court in the jurisdiction for declaration suit and then with this reference move to DRT for stay order? Do you have any reference in Mumbai or New Mumbai who could handle this matter in both the courts and get me relief?

If the bank authorities have stuck the possession notice under section 13(4) of the SARFAESI Act, you can file an appeal under Section 13(8) of the SARFAESI Act ¹. This section allows the borrower to redeem the mortgaged property before the sale certificate is registered and possession is handed over to the auction purchaser ². Additionally, you can also file a suit for declaration under Section 34 of the Specific Relief Act to declare the sale deed null and void due to non-receipt of the consideration amount under Section 52 of the Transfer of Property Act ¹. However, it is recommended to consult with a lawyer to understand the specific legal remedies available in your case.

Thanks a lot Sir for replying in brief details. For your kind information, I am not the borrower,infact I am the victim of cheating and fraud and my property is at stake unnecessarily in this. I haven't received any single penny of the consideration amount and still the property is mortgaged with the bank by the purchaser. Do you have any reference in Mumbai or New Mumbai, who have the thorough knowledge of the proceedings and could help me to get me out of this mess?

Even though you are not the borrower, the borrower has already obtained loan on this property on the basis of title deed on his name.

Hence you cannot dispute or challenge the action taken by Bank under sarfaesi act in this case.

Your claim is that the sale consideration amount was not paid by the buyer.

In that situation you can file a civil suit for cancellation of sale deed invoking section 52 of TP act, provided there's substantial evidence to prove your claim and also can file a petition under order 39 rule 1&2 CPC seeking temporary injunction to stall the recovery proceedings till the disposal of the suit.

You may choose an advocate hailing from Mumbai either from this forum or outside 

So, nice of you Sir, Thanks a lot. But please tell me rather than going for cancellation of Sale Deed, should I file the Declaration suit for declaration of Sale Deed null and void, as this would save the court fees charged for cancellation suit. Or It would not be sufficient and I would have to file Cancellation suit only? 

You cannot ask declaration to declare the sale deed as null and void because you are a party to the sale deed, hence you may have to file a suit for cancelaltion of sale deed for the reasons you rely upon invoking the said provisions of law,.

Thanks a lot Sir 🙏

The first step to safeguard your property from auction is to file a Securitisation Application under section 17 of the SARFAESI Act before the DRT. The DRT may stay the proceeding by passing a conditional order to pay some amount based on the Demand made under section 13(2) of the SARFAESI Act. 

Subsequently, you can approach the civil court for cancellation of Sale Deed.

I am not the borrower Sir, infact I am the victim of cheating and fraud. Still I have to file an application under section 17 of Sarfaesi act and pay some amount of the demand? I have not received any single penny of the consideration amount of the Sale Deed. I am the owner of the property.

Although you are not borrower in the instant case yet the property is mortgaged with the Bank for the loan obtained consequently there is an encumbrance. 

Till the time the loan (encumbrance) is not clear against the property your case to declare the sale deed as "null and void" is not maintainable before jurisdictional civil court. 

Thanks a lot sir, for replying. What are the legal remedies available for me in this matter? Should I file the Cancellation suit to save my flat?

Obtain stay order from concerned DRT, contest / settle recovery and file a suit for cancellation of sale deed in the same sequence, which has repeatedly been made clear by experts. 

Ok sir, Thanks a lot for your kind advice. I am currently trying  on filing the cancellation suit first and obtaining an injunction on the banks proceedings from civil court. But in case of DRT, I have recd. different opinions that the DRT may not entertain me as I am not the borrower. So, I need to zero in on the decision about DRT.Kindly please give me your valuable suggestion on this to clear my confusion if possible.