Sarfaesi act, 2002
Nairita Datta Chowdhury
(Querist) 27 May 2014
This query is : Resolved
The matter is pending before DRT - Kolkata. The matter is...
A reconstruction company namely 'X' registered as a securitization and asset reconstruction company pursuant to Section 3 of the SARFAESI Act, 2002 and 'X' was assigned by a Bank namely 'Y' for its debts. Lawyer filed an Application for Substitution of Party and A/O and A/R are also filed in this respect. In the meantime the erstwhile lawyer was absent in the fixed dates and the matter was dismissed for default. Now we got a Change brief and filed a restoration application where the Learned Tribunal is saying that the 'Y' is the Plaintiff, only it can file restoration application, the present applicant 'X' can't. But there is already a substitution application is filed by 'X' before the Tribunal seeking for substitution and unfortunately on that stage the matter got dismiss for default.
As per my knowledge under Section 5 of the SARFAESI Act, 2002 it is clearly stated that when a reconstruction company is assigned by a bank such securitisation company or reconstruction company shall, on such acquisition, be deemed to be the lender and all the rights of such bank or financial institution shall vest in
such company in relation to such financial assets.
What I want is any citation on this topic as I can place my argument strongly before the Learned Tribunal.
Any other advise by the Experts are welcome to strong my case....
Thanks in advance...
Devajyoti Barman
(Expert) 27 May 2014
sorry, Madam citations re not supplied here.
If you are an advocate you know how to search for citation.
Nairita Datta Chowdhury
(Querist) 27 May 2014
With due respect Sorry to say Sir, but in earlier occassions I got citations from here and Experts were ready to help the junior advocates like me. But now it seems like no one is ready to help. I know how to search a citation but not getting it thats why I am seeking your help. Its not a question of my success in the case its a question of success of my client who is seeking justice.
I have also said in my query that any other advise in this case is most welcome, experience of you experts is highly needed.
Thanks...
c.p.s. ramachary
(Expert) 27 May 2014
S.5 (2) & (3) of the SARFAESI Act provide very clear answer to your query. Hence you need not search for citation in this regard.You may file restoration petition along with a copy of the assignment deed and convince the tribunal.
Nairita Datta Chowdhury
(Querist) 27 May 2014
Thank you Ramachari Sir....
I have already filed the restoration application and now will try to convince with Assignment Deed again.
Thanks a lot...
Devajyoti Barman
(Expert) 28 May 2014
OK.
The provision of law you quoted is quite clear.
I wonder why do you need citation.
Biswanath Roy
(Expert) 28 May 2014
StudY 'INTERPRETATION OF LAW by Craie's
'INTERPRETATION OF LAW' by Maxwell
Nadeem Qureshi
(Expert) 28 May 2014
Dear Querist
there is no need of citation the section 5 itself answer your query.
malipeddi jaggarao
(Expert) 28 May 2014
All experts including the Author are correct! Wish you the best.
K.K.Ganguly
(Expert) 31 May 2014
1. The Ld.Tribunal has taken the view that the application was filed by 'X'Bank & 'Y' filed a substitution petition which was yet to be decided,
2. Before the substitution application was decided favourably, the matter was dismissed for default including the substitution petition filed by 'Y'.
3. Technically, for restoring the application, the original plaintiff 'X' needs to file the restoration petition,
4. Only after the case is restored, 'Y' can further file his substitution petition in the matter stepping in to the shoes of the plaintiff being 'X', not before.
T. Kalaiselvan, Advocate
(Expert) 31 May 2014
I agree with the views of expert Mr. C.P.S. Ramachary has a solution for the problem. The author may follow the further advise rendered by expert learned Mr. Ganguly. The author being an advocate herself, could have handled the issue with little more patience upon which she could have found the answer lying in herself.
c.p.s. ramachary
(Expert) 31 May 2014
I agree with the expert Mr.K.K.Ganguly. Substitution follows restoration. The advocate handling the matter should take steps accordingly
