Notice by bank under section 13(4) under sarfaesi act

This query is : Resolved 
 

(Querist)
26 June 2012

Dear Sir,
Bank has issued a notice under section 13(4) for taking symbolic possession of house property.

We have deposited title deed(sale deed) and patta with the bank as equitable mortgage. The sale deed is related to two plots in one house property(plot A & Plot B). But the Patta is for only one plot plot B.
The Bank's notice describes only one plot(plot B) for which patta is deposited with the bank and not the plot(Plot A) which is there in the sale deed, but no patta is deposited.

The sale deed clearly mentions that the shoproom (part of the property) is built upon plot A not mentioned in the notice u/s 13(4). But the actual construction exceeds the size of the plot A means part construction(about 20%) is also on plot B mentioned in 13(4) notice.

I am looking for an expert opinion in the matter as to how I can stop bank from taking possession of construction on plot A, which is not described in the notice.

To activate Click to Talk, e-mail at lciconnect@lawyersclubindia.com 



R.K Nanda (Expert)
Click to Talk
26 June 2012

Take a stay order from court against the bank.

K.K.Ganguly (Expert)
Click to Talk
27 June 2012

Do not be woried at all. The Bank will take 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. Since, Plot A is not mentioned in any of the notices, DM will not give any permission for taking over its possession with Police help.

Your Plot A is safe.

c.p.s. ramachary (Expert)
28 June 2012

The sale deed covers the two plots (A&B) which is charged to the bank as security interest. Possession of both the plots can be taken since the sale deed covers them. Sale deed prevails over pattas. DM/CMM has no jurisdiction (power) to hold any enquiry of any dispute of whatsoever nature. It is only for DRT to scrutinize the validity of the action. Even though pattas are deposited in addition to the sale deed (which gives complete description of the two plots) non mentioning of the patta numbers does not make much difference. Boundaries in the sale will cover both the plots. Hence you will not have tenable contest. Instead of that go to the bank and pay the arrears of defaulted amounts and get the account upgraded to Performing asset if possible. Otherwise seek for settlement of the dues. Otherwise you have to face unsavory action.



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