Sarfaesi Act

LAWYER

Respected Experts,

There is an express provision of Appeal u/s 17(1) of Sarfaesi Act. So is it mandatory  for the Bank to take symbolic possession in the first instance so as to allow the Borrower exercise his right of appeal.

Thanx

Manoj Harit

 
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Lawyer

Section 17(1) speaks about the remedies available to any aggrieved person because of the possesion taken by the authorised officer. It no where says that symbolic possession should be taken before actual possession.


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LAWYER

Resp. Uday,

Thanx for taking out  time to reply to my query. But if the borrower is made to lose his possession & in effect his business activity is stalled even before the judicial determination of his liability, is he not being put to great disadvantage? Is it not open to him to protest against actual possession before being given a chance of appeal?

Manoj Harit

 
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That the application u/s 17(1) of The Act of 2002 can be filed before Debts Recovery Tribunal within 45 days of taking measures u/s 13(4) of The Act of 2002. In other words, it means that the application can be filed only after taking possession of the property (secured asset) and it will be dismissed being premature if the application is filed after receipt of demand notice before taking measures u/s 13(4) of The Act.

 

Abhijit C Thakur, Advocate

Private Practice


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LAWYER

Resp. Abhijit Sir / Uday Sir & other experts

The DRTs dismiss the appeal as premature if the same is based only on possession notice sent by the lender. But when symbolic possession is taken the appeal becomes valid. Plz comment. Also let me know of the measures, if any , by which the Borrower can stall physical possession at the first instance i.e. before exercising his right of appeal u/s 17(1).

Manoj Harit

 
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That the Hon'ble Apex Court in the matter of Transcore v. Union of India had made it clear that the possession can be symbolic or physical at the convenience of the lender/banker. Symbolic possession is also taken u/s 13(4) of The Act. That the lender is required to affix the possession notice on the property (if immovable) in terms of Rule 8(1) of The Rules and they are also required to publish the possession notice in two newspapers within seven days of taking possession in terms of Rule 8(2) of The Rules, 2002. That the borrower can file an application u/s 17(1) of The Act before DRT if the lender has exercised provision u/s 13(4) of The Act by taking possession of the property whether symbolic/physical. That nowadays, the bankers are mainly interested to take physical possession of the secured asset to avoid the trouble of  dispossessing the occupants to handover the vacant possession to the auction purchaser after taking symbolic possession. That to take the possession, the bankers prefer moving application u/s 14 of the Act to The Chief Metropolitan Magistrate or The Collector to handover the physical possession of the secured asset. That in terms of a good number of judgments of various High Courts, the bankers are at liberty to move application u/s 14 of the Act even after conducting sale. Hope the position is clarified now.

 
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