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Rajesh Thevar (Engineer)     13 May 2012

Sarfesi notice

Hi,

I need an expert opinion on a mortagaged property of ours to bank. 

Scenario - We took load on our property for 50 lakhs. 6 months ago we paid 15 lakhs and reduced our debt to 35 lakhs. But since then we were not able to pay of any amount or even interests to them. So the bank sent SARFESI notice on February saying the property will be taken possession by bank if we do not pay the amount by the April.

And we are not able to pay it by this time. BUt right now, We want the bank to give us 30 more days to solve this issue by selling off our another property and saving this property which is in mortgage. Recently learnt they are gonna given ACTION notice and take into possession of our property in mortgage.  Spoke with bank, They already gave us 10 days extra to solve our issue so not willing to listen anymore.

Reasons - This is our residential property in bank. 2nd, Property worth 2 crore so we don't want them to let in auction. 3rd, We are on almost verge of selling our another property.

Questions - What are the chances of success if we ask for stay order upon this action notice of bank from court ?
2nd Will the bank levy further penalties if we goto Court to put stay in their order ? 3rd the bank is Indian bank, So will the court see the bank is not private and Government led so will they be biased towards them ? 


 



Learning

 10 Replies

K.K.Ganguly (Advocate)     14 May 2012

No Court has any jurisdiction to interfere in this case excepting Debt Recover Tribunal. You shall have to find out faults in the SARFAESI Proceeding taken up by the Bank &  file an application asking  the DRT for setting aside the SARFAESI Proceedings undertaken by the Bank since they are faulty. If you succeed, you  will get some time before the Bank restarts issuing Notices under SARFAESI Act,2002 afresh.

 

Engage a lawyer who practices in DRT.

 

Ajit Singh Cheema (practising Advocate)     14 May 2012

If the borrower or any other person who had any tangible grievance against the notice u/s 13(4) or action taken u/s 14, then she could availed remedy by filing an application u/s 17(1) within 45 days from the date on  which such measures was taken. Both the tribunal and the appellant tribunal are empowered to pass intern orders u/s 17 and 18 and are required to decide matters within the fixed time schedule. The granting of stay order in your case is almost 100% assured subject to the condition you promise the recovery within a period of say 6 months. The DRTs are very liberal in granting stay where the borrower promises recovery in a short period. There shall not be any difference between a private or nationalized bank or far that matter any other financial institution. The surfaesi act  is the same for all financial institution.

 

For a detailed study you may refer to my article published by Indian Bank's Association Mumbai in Journal The Indian Banker for March 2012 under the head Sarfaesi Act Delaying Tactics Used by Borrowers

1 Like

K.K.Ganguly (Advocate)     14 May 2012

Before DRT, it will be impossible to get a stay,  only with the plea that You will pay shortly. In fact if the Bank does not accept the request of delayed payment, the DRT can not force them to wait & accept delayed payment. SARFAESI ACT is s draconian Act meant for recovery of Debt. You can get a stay if you can prove that there has been mistakes on te part of the Bank in following SARFAESI proceedings viz., not providing details of the outstanding in notice u/s 13(2) of the Act, not replying to the letter of the borrower sent after getting the said notice u/s13(2) with 7 days. etc.

Engage a lawyer who mpractices at DRT

Rajesh Thevar (Engineer)     14 May 2012

HI,

 

Thank you for your reply in short notice. We are gonna ask bank for 15 more days time as we almost sold another property to take this out of mortgage. Only delay is the payment we are receiving.. Registration will be happening in 3-4 days. so gonna convince bank with this.

 

Thing is  - we are already 10 to 15 days cross end of notice period. And - i don't think we are gonna receive full one settlemnt payment.

 

Anyway thanks for ur reply i can see we cannot seek court and possibility of getting stay is less.

 

Regards,

Rajesh.S

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com)     17 June 2012

You should reply the earlier notice under 17 (2)   within xixty days which they  have to reply within next seven days.

File a case of junuction in lower court for stay of possession and sale by making objections for illegality of action.

 

Go through the article Mr Cheema has sugested for guidance.

RAJU O.F., (Advocate)     05 July 2012

If bank issued possession  notice under Sec. 13(4) of SARFAESI Act, you have to immediately prefer an appeal u/S 17 of the Act before your jurisdiction DRT. Engage a good advocate who is appearing in DRT for borrowers. If you proceed properly, DRT will grant you Stay Order from further actions of the bank and you may get time for amicable settlement.  Before DRT, there is no differentiation between Nationalised bank or private bank.


(Guest)

You have been properly guided Rajesh. Proceed with the same.

1 Like

Rajesh Thevar (Engineer)     06 July 2012

HI,

 

Thank you, We had proceeded with the same and got stay order from Bank untill our sale of the property ourselves. 

Thanks for the guidance and help. 

 

Thanks & Regards,

Rajesh.S


(Guest)

Dear Rajesh,

Thats a wonderful news you have shared. Congratulations.

1 Like

RAJU O.F., (Advocate)     09 July 2012

You have stated that you obtained stay order from BANK. I hope it must be DRT.  Otherwise, bank may any time change the story.


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