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Amit   08 September 2018

Drt sarfaesi notice 13(4) issued twice

I AM LAW OFFICER FACING A DIFFICULT QUESTION FROM ONE OF MY CLIENT. THE CLIENT WAS ISSUED NOTICE IN SEPTEMBER 2012 UNDER SARFAESI ACT SECTION 13 (2) FOR DEMAND OF 19.12 CRORES . FURTHER NOTICE ISSUED UNDER SARFAESI ACT FOR 13(4) FOR 19.12 CRORES IN DECEMBER 2012 . THE BANK FILED O.A IN DRT FOR 20.37 CRORES IN DRT IN FEBURARY 2013 . STRANGELY AGAIN THE BANK ISSUED NOTICE UNDER SARFAESI ACT FOR 13(4) IN MAY 2017 FOR 17.66 CRORES . TILL DATE THE BANK HAS CONDUCTED SEVEN FAILED AUCTION ON PRIME PROPERTY. AFTER WHICH PHYSICAL POSSESSION OF PRIME PROPERTY IS WITH THE CLIENT HANDED BY HIGH COURT . 1. TILL DATE BANK HAS ONLY RECOVERED 52 LACS BY SELLING TWO PROPERTIES ONLY OUT OF TOTAL THREE MORTGAGED . 2. PHYSICAL POSSESSION OF PRIME PROPERTY IS WITH THE CLIENT HANDED BY HIGH COURT . 3. CLIENT HAS FILED A COUNTER CLAIM ON BANK OF 40 CR. PENDING ORDER RESERVED SINCE ONE YEAR IN DRAT WHICH IS DELIBERATELY FAVOURING THE BANK . 4.BANK HAS NOT FILED ANY RESPONSE TILL DATE TO COUNTER CLAIM AS THE MATTER IS CRIMINAL IN NATURE FIR IS PENDING . SO NO ONE WANT TO BE PARTY TO THE SAME . 5. FURTHER REGISTRATION OF FIR IS PENDING IN HIGH COURT WHICH BE DONE SOONER OR LATER AS ALL EVIDENCES ARE IN MY CLIENT FAVOUR AND HIGH COURT IS CONVINCED . QUESTION NOW THE QUESTION 1. IS THE O.A MAINTAINABLE AS THE AMOUNT ON SEPTEMBER 2012 UNDER SARFAESI ACT FOR 13(4) WAS 19.12 CR. AND ON MAY 2017 IT IS UNDER SARFAESI ACT FOR 13(4) 17.66 CRORES . 2. CAN MY CLIENT APPROACH HIGH COURT UNDER ARTICLE 226 FOR QUASHING OF O.A . 3. IF HE APPROACHED DRT THEN IT WILL SIT AND NOT GIVE ANY JUDGEMENT AGAINST BANK . 4. WHAT HAPPENS IF O.A IS QUASHED TO THE COUNTER CLAIM . 5. CAN BANK FILED FRESH O.A , AS STATURE OF LIMITATION WILL BAR THE SAME . 6. CAN FRESH COUNTER CLAIM BE FILED IF O.A IS QUASHED OR WILL THE COUNTER CLAIM BE ADJUDICATED . PLEASE ADVISE BEST REMEDY . THANKS AMIT


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