Right of the bank to take possession on the property
Querist :
Anonymous
(Querist) 20 December 2011
This query is : Resolved
Respected members, please give a solution to my problem.
Smt.A and Sri.B are legally wedded couples and in the year 2006 they jointly jointly raise loan from XYZ Bank to purchase a Flat. However in the year 2010 Smt.A files a Divorce Petition against Sri.B in the Hon,ble Court of Prl.Judge, Family Court, Bangalore.During the pendency of the suit, Smt.A becomes successful in getting injunction against Sri.B whereby Sri.B is restrained from alienating the suit schedule property i.e. property purchased by raising loan from XYZ Bank.
Both the couples became defaulters in repayment of loan.
In the month of July, 2011 XYZ Bank issues notice u/s13(12)of SARFAESI Act,2002 R/w. rule 3 of the Security Interest (Enforcement)Rule,2002 and notice u/s13(4)of SARFAESI Act,2002in the month of November,2011 and there is no response from both the parties.
Now my question is:
1. Can the XYZ Bank proceed to take permission from the Magistrate U/s14 of the SARFAESI Act,to take possession of the Property.
2. Will the Injunction granted by the Hon'ble Prl.Judge, Family Court, Bangalore becomes a bar to take such permission from the Magistrate.
3.Obtaining such permission from the Magistrate becomes contempt of order passed by the Hon'ble Prl.Judge, Family Court, Bangalore.
4. How far the order of the Hon'ble Prl.Judge, Family Court, Bangalore is going to affect the interest of XYZ Bank.
5.Can the XYZ bank sell the property to recover its dues.
Please suggest me in this regard.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 20 December 2011
Well the lender can take permission from the family court.
Other steps will be relevant whether you are A or B and what course of action is desired.
adv. rajeev ( rajoo )
(Expert) 20 December 2011
B is restrained from alienating the property. Bank can take the possession of the property. No need to take permission from the magistrate.
Anirudh
(Expert) 20 December 2011
I agree with Mr. JSDN.
Since the bank has to give a declaration that there are no injunctions against the property if it has to move an application before the ACMM under Section 14 of the SARFAESI Act, the bank will not be in a position to approach the ACMM without the injunction being vacated. Therefore, as suggested by JSDN, the bank may have to approach the Family Court for permission / vacation of stay.
ajay sethi
(Expert) 20 December 2011
injunction has been granted restraining B from selling the property . no injunction has been granted restraning bank from taking posession of suit premises . bank can go ahead with taking posession after obtaining order from magistrate .
Shonee Kapoor
(Expert) 20 December 2011
Agreed with experts, bank can take possession of the property.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
ashutosh mishra
(Expert) 20 December 2011
Yes!Right is Mr.Sethi.
An injunction acts in personam,hence I agree with his opinion.
jeevan1950
(Expert) 20 December 2011
Sure ! the injunction is for alination of property by Husband. The Bank can execute the mortgage and take possession of the flat and even sell it to recover the debt.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 20 December 2011
Even it may be treated as technical matter no lender will venture if informed of injunction by a court of law.
However if B willing he can cooperate with lender to give possession after consent order by court.
But again A will be heard in this matter and her interests will not be Jeopardized .
DEFENSE ADVOCATE.-firmaction@g
(Expert) 20 December 2011
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He said after the Janata Party headed by late prime minister Morarji Desai came to power, the trial was shifted from Bihar to Delhi. The recording of evidence took 10 years from 1994 to 2004 and thereafter the Central Bureau of Investigation said they wanted to bring more evidence on record.
Shyam Ji Srivastava
(Expert) 20 December 2011
yes bank can take every steps under SARFAESI Act 2002 as amended. Civil court or any other court has got no jurisdiction to grant injunction except DRT.
Devajyoti Barman
(Expert) 20 December 2011
After the coming of SARFACI Act, the jurisdiction of civil court has been severely curtailed.
Now for the releifs both the Bank and the borrower, the Debt Recovery Tribunal is the only option.
Raj Kumar Makkad
(Expert) 21 December 2011
1. No need to require any permission as the earlier order was only against Sri B and not against bank.
2. No.
3. No.
4. There is no impact of earlier order as even bank is not a party to the ongoing 'battle' between husband and wife and even special Act prevails general Act. bank is proceeding under a special act and taking the possession accordingly within its rights without violating any law of land so there is no hurdle to move ahead as it is not a contempt of court.
5. Yes.
prabhakar singh
(Expert) 21 December 2011
1.no need at all.
2.no
3.no
4.to no extent.
5.yes,bank is free to proceed.
