Sarfaesi act
Goapl Garg
(Querist) 18 August 2015
This query is : Resolved
I used to hold 11% shares in a private limited company and my other associates held the balance holdings(only two other shares holders, husband and wife in equal proportion).I was not a Director and both Husband and wife were Directors.The company obtained credit facilities from Bank and Three Residential Properties were mortgaged as colletaral securities. One Property was mine and Two belong to Husband and Wife duo.Owing to strained I parted ways and it was agreed that my property shall be subsituted by another property of equal vale by my associates but it did not happen and the Account became NPA.The Bank intiated action under Sarfaesi Act. 13(2) and 13(4) formalities are over with symbolic possesion and paper publication.The Bank has made application u/s 14 of the act to DM for permission for physical possession.
I obtained a copy of the Bank"s application u/s 14 under RTI from DM-Office and found that the borrower and gaurantors are described correctly as 01.the company 02 myself.03 My ex-partner 04 My partners Wife.
In the schedule of Motgaged Assets, all three Properties have been described as A-B and C.
A belong to me and B & C belong to Husband-Wife duo(my ex partners).
But to my surprise I find that the schedule of property under (B) has been totally defaced by whitner and its title deed copy, possession notice copy is not enclosed. However all documents pertaining to A & C are attached.
The Original Application is duly notarised and signed by the AO of the Bank on all the documents.
It means that the DM would pass the order for property A & C only because property description of B is originally typed but later totally defaced by whitner.
I have pointed it out to DM-Office who says that they have issued copy of the documents as it is in condition which they have received and could not see the defacing as it happened inside pages of the application.So by their statement the Bank has submitted(thru one advocate whose Vakalatnama is also filed) the application in the same condition.
I am now very confused as what will happen now" and whether such application is valid and can be considered by DM? How the Notary has done attestaion on defaced pages? How the AO of the Bank can sign on original papges wherein substantial defacing is done? But it certainly indicate that though 13(4) is done for all three properties, One property is being sought to be lett off. All three properties lie under same DM jurisdiction. My dealing advocate is also little confused as to whether I can do anything as DM office usually do not entertain gaurantors and issue notice to lender and bprrower company.
It is certainly case of connivance, fraudulance and I need Honourable Experts Opinion about:
01 Is such application tenable for processing at DM Office?
02 Is there any remedy to bring the same to the notice of it to DM and Bank"s Authority?
03 Is there any Legal remedy available where such malpractice can be exihibited and guilty can be punished?
04 Can DM entertain such application and Pass order for the two properties only?
I am ready to fight till end to save my property..Please advise.......
R.K Nanda 
(Expert) 18 August 2015
query too long.
Goapl Garg
(Querist) 18 August 2015
Yes Sir, it is long but it was necessary for submitting the facts. In simple terms I submit that the Bank has three properties under its mortgage and submits application to DM for their possession but defaces particulars of one property by whitner. Is it lawfull for the DM to acept such defaced application? ...Please try to advise..
Biswanath Roy
(Expert) 20 August 2015
Why you mortgaged your property when you are not a Director of the Company?
Why you did not challenged the legality of the issuance of sec.13 (2) upon you to the Banker?
Why you did not challenged the legality of sec.13 (4) notice before DRT?
When you were sleeping so long sleep mor days till your property sold out by auction.
You can challenge the fraud committed by the Bank in the petition before DM for defacing the material ingredients and can pray for rejection.
Goapl Garg
(Querist) 20 August 2015
Respected Experts,
I have duly challanged Notice of 13(2) and 13(4) and have also filed application u/s17 with concerned DRT.
My query is :
The application u/s 14 submitted by Bank to Dm wherein the Bank has mentioned schedule of all Three Mortgaged Properties, it signed in original on every page by AO of the Bank and it is duly notarised, but out of Three property schedule, One major property schedule/description is totally defaced by Whitner and its title deed is also not submitted, whether such application can be considered by DM, and Can I also take legal remedy for this mutual apprant connivance, and if yes then at which forum under which law?
Biswanath Roy
(Expert) 20 August 2015
You may file a written objection before DM against such fraudulent application and can pray for its rejection in limini and may proceed further legally but connivance is to be proved by adducing strong evidences as per Indian Evidence Act.
