Ro order sarfaesi dm order need of counter claim
Brijmohan Shama
(Querist) 24 October 2014
This query is : Resolved
We got defeat in OA, got RO order to recover certificate amount Rs.37 lakhs within 15 days, principal dues around is Rs. 7.75 lakh only and simultaneously Sarfaesi proceeding is at final stage with DM order. Sarfaesi already have symbolic possession. Can they take physical possession under condition of third party possession. Our case is genuinely of counter claim, which due to financial inability could not contest. Please advise, whether there is any provision of suit file / writ file for third party possession / counter damage.
Devajyoti Barman
(Expert) 25 October 2014
Yes, physical possession can also be taken now unless you succeed to get any stay order from DRT OR DRAT.
K.K.Ganguly
(Expert) 25 October 2014
1. The query is deficient of required details,
2. Who is the third party possessor? Is he a Tenant?
3. After O.A was settled in favour of the Bank, was DRAT approached?
4. Has the Sarfaesi Proceeding initiated by the Bank been challenged by filing a Sarfaesi Application?
5. However, physical possession of the mortgaged property can be taken by the Bank with DM's permission by applying u/s14 of the Act,
6. The possessor can apply under section 17 of the Act even now i.e. after getting notice from the DM,
7. All superior Courts will direct the matter to the concerned DRT who has the jurisdiction to hear SARFAESI matters.
RAJU O.F.,
(Expert) 25 October 2014
Immediately file an Appliction u/S17 of the in jurisdiction DRT, to challenge the banks action. Otherwise Recovery Officer can attach property and and also DM can cause to take physical possession.
Rajendra K Goyal
(Expert) 26 October 2014
Agree with the advice of expert RAJU O.F.
Brijmohan Shama
(Querist) 27 October 2014
Intensively very much GRATEFUL To all Sirs, the third party possession is a tenant under lease agreement of 15 years from May 2000 to 2015 well notarized and my lawyer intend to go to HC to contest on the same ground to-day to take stay. Lease was done before the Bank financed. At the moment my condition is penniless, though I could have damage claim too on the factual and prime-facei ground of deficient service, deficit Project cost finance and deletion of water connection, never reviewed nor restored and dust binned all my request, 6 years later Bank called for mutual resolution in mutual benefit. but in fact keeping me in dark, fro back filed case and won ex-part in DRT by manipulation in Nov 2009, which we contested on ex-part point and we succeeded to restored the OA, then Bank using Safaesi sword, took symbolic possession in 2012, we appealed, got defeat in appeal and OA, now my situation is standing as mentioned above in first my query !
T. Kalaiselvan, Advocate
(Expert) 27 October 2014
You have to find relief going by your local lawyer's advise who is fully in the knowledge of the entire events that happened so far.
K.K.Ganguly
(Expert) 27 October 2014
1. You have two seperate issues in the instant matter,
2. First is your being default and the bank's arranging to take physical possession through DM's order to sell of the mortgaged property to recover your dues &
3. The other issue is about eviction of your tenant/leasee through SARFAESI Act,
4. In the first case you have already been ordered against by the DRT. So, the Bank is open for taking its possession with police help by DM's order,
5. As regards the 2nd matter, the DM can not evict the Leasee/Tenant if the Lease/Tenancty agreement has been executed and registered ( if registration of tenency/lease deed is mandatory in your state) before the creation of the mortgage. You can file a WP citing the Supreme Court Judgment for Harshad Govardhan Sondagar in case no. WP No.16033(W) of 2014 (Appellate Side)M/s Vision Comptech Integretors Ltd. Vs. S.B.I & Ors.
Brijmohan Shama
(Querist) 28 October 2014
Unlimited Thanks Mr. K. K. Ganguly Sir,for your this line..."You can file a WP citing the Supreme Court Judgment for Harshad Govardhan Sondagar in case no. WP No.16033(W) of 2014 (Appellate Side) M/s Vision Comptech Integretors Ltd. Vs. S.B.I & Ors." ...... Once definetly I'll come to Kolkata only just to pay you my profound regards, respect and divine love....other than this I don't have any and attitude of gratitude.....ever and forever......maintain integrity. +91 97065 69217 E-mail: brijmohan19@rediffmail.com
Nadeem Qureshi
(Expert) 29 October 2014
Dear Querist
the tenant has right to file a civil suit before Civil court as well as before DRT and pray for stay.
Without due process of law the bank/RO/DM have no right to evict the Tenant from the property which was mortgage with the bank after the tenancy agreement, either registered or not.
As per the guidelines of Apex Court mentioned in the above noted cases.
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