Can the creditor issue fresh notice sarfaesi_clause13(2) when matter is pending in drt?
DEBASISH.M1
(Querist) 05 February 2012
This query is : Resolved
Summary -:
1.The Non Banking Financial Company(NBFC) invoked SARFAESI_Clause13(2) on 21st March 2009 and issued notice (LOAN CLOSURE).
2.Issued a notice under SARFAESI_Clause13(4) on month of 15th September 2010 in line with notice dated 21st March 2009.
3.DRT has passed an Order "Stay on possession" and borrower complied with the amount to be paid.
4.The Company changed its name under Section 23(1) of Company Act on May 2011.
5.Again sent notice under SARFAESI_Clause13(2) with LOAN CLOSURE on 3rd February2012 with increase amount > earlier amount.
6.Suddenly The Company has withdrawan the notice SARFAESI_Clause13(2) dated 21st March 2009 in the same.
Question -:
1.Can the Creditor issue fresh notice SARFAESI_Clause13(2) when matter(stay on possession) is pending in DRT? ?
Devajyoti Barman
(Expert) 05 February 2012
THis is not a question of capability but of a need.
The new company who has taken over the previous Company is liable for its old acts and liabilities.
So second notice u/s 13(4) of SARFAESI Act is toally needless.
Now the predicament of the Borrower is that if he wishes to challenge the second notice u/s 17 of the Act , he would again need to pay the fees for the case.
But that is not needed. The borrower simply needs to make the new company added or substituted in the pending proceeding which would effectively resolve his problem.
Advocate M.Bhadra
(Expert) 05 February 2012
No they can not issue notice u/sec.13(2) of the SARFEASI Act again,you should inform the matter to the DRT by a PUT-UP Petition.
ajay sethi
(Expert) 05 February 2012
make an application for amendmnet of pleadings as suggested by Mr barman .
RAJU O.F.,
(Expert) 06 February 2012
Bank or FI can withdraw earlier Demand Notice u/S 13(2) and can issue fresh notice curing the defects of the earlier one. You may pray before DRT in the existing Securitisation Appeal to award costs and compensation for the proceedings wrongly taken by the F I, as provided in Sec. 19 of the SARFAESI Act.
You can challenge the fresh Demand Notice invoking Sec.13(3).
prabhakar singh
(Expert) 06 February 2012
Orders passed by DRT against previous company are equally binding upon the fresh company. Mere name change does not cause a escape if you amend and add newer name in DRT'S petition.However it is open to them to correct errors and withdraw earlier by substitution of a newer one but as your petition is pending i think amendment should serve your purpose.
prabhakar singh
(Expert) 06 February 2012
Orders passed by DRT against previous company are equally binding upon the fresh company. Mere name change does not cause a escape if you amend and add newer name in DRT'S petition.However it is open to them to correct errors and withdraw earlier by substitution of a newer one but as your petition is pending i think amendment should serve your purpose.
