Sarfeasi
Ritika singh
(Querist) 23 August 2014
This query is : Resolved
would be glad to seek assistance on following:
1) can sarfaesi action of possession be taken on an already attached immovable prperty vide decree from civil suit.
2)can an immovable property be simultaneously attched by two courts/forums?
3)if a bank has taken physical possession for almost 5 years of the property but still not published any public notice, is any remedy possible before proceeding with publication of sale notice for its sale?.
Y V Vishweshwar Rao
(Expert) 23 August 2014
1-Civil Court Decree dt
-Bank Mortgage dt- Bank Possession dt
-Civil Court Decree Attachment
-Bank Mortgage date & Private Civil Decree holder Right with dt to be verified
-Rights of Civil Decree holder and Bank Mortgagor rights to be verified to conclude the priority Rights of Bank /or/ party with Civil Decree
-consult Local Lawyer with relevant particulars and records-documents
-If required can be challenged before DRT under Sec 17-
RAJU O.F.,
(Expert) 24 August 2014
Apex Court in "Transcore" judgment unfortunately allowed simultaneous actions under DRT court and SARFAESI proceedings by banks. In case if 45 days are over from date of Possession Notice, Appeal u/S 17 Cannot be filed in Tamil Nadu & Pondicherry as per High Court Order. In some other states delay is condoned for preferring such Appeal before DRT. If any Sale Notice is issued, Appeal can be filed within 45 days from that Notice.
K.K.Ganguly
(Expert) 24 August 2014
1. The papers in this regard needs to be seen for parting with suggestion. Was the mortgage with the Bank created before the property was attached? If yes, was the Bank made a party in the civil case?
2. If one forum/court has been kept in dark about the attachment order passed by another court then the said foru/court can certainly pass attachment order,
3. Application shall have to be filed before the DRT u/s17 of the SARFAESI Act,2002 within 45 days from the date of taking measures by the Bank u/s 13(4) of the Act. The said measure includes taking possession and also issuing sale notice. Hence, for filing the said Application u/s17 of the Act, you shall have to wait for the Bank to take further measure u/s13(4) of the Act i.e. issue of sale notice when you can point out to the DRT that SARFAESI Act was not followed in your case by the Bank as no publication of the possession notice was made as mandated by the Act.You can file it even now if you can show evidence that you came to know about the said physical possession of your property only recently for which you shall have to lodge a police complaint also to that effect.
Ritika singh
(Querist) 25 August 2014
thank you all for your valuable inputs. The secured creditor has withdrawn earlier possession of 2006 and issued fresh notice to the borrower considering non-publication . what remedy borrower has against the bank now if such sarfaesi action is regularised after 8 years of physical possession of his property
K.K.Ganguly
(Expert) 25 August 2014
1. This you should have informed in your earlier post to enable me to guide you properly,
2. The Bank is within its legal rights to withdraw any Notice it had issued earlier and reissue it,
3. You can file SARFAESI Application u/s17 of SARFAESI Act,2002 within 45 days from the date of 13(4) Notice issued by the Bank,
4. However, you can also wait for the sale notice to be publiashed when you can file the application refering the decision of Supreme Court in the matter of Nobel Kumar Vs. Standard Chartered Bank,which states that it is obligatory on the part of the Bank to take possession before issuing Sale Notice.
RAJU O.F.,
(Expert) 26 August 2014
If the illegal physical possession taken by the bank is proved (without publication), you may claim costs and compensation, determined by DRT, as provided in Se c. 19 of the SARFAESI Act.
Ritika singh
(Querist) 26 August 2014
thank you Mr. ganguly and Mr Raju for guidance in the matter.
