Faulty sale certificate issued under Sarfaesi
Suresh K.Khaitan
(Querist) 11 January 2018
This query is : Open
I bought one property from NEDFI in bank auction under SARFAESI Act. SARFAESI rules mandatory provides for the issue of Sale certificate in the form prescribed at Appendix V of Security Enforcement Rules, 2002. ( AO has no authority under the rules to modify the prescribed form of sale certificate).
1. After the full payments having been made, AO has now issued one sale certificate after deleting the words "and handed over the delivery of the possession of the scheduled property" and sent the same to me per Registered post.
He has not mentioned the words " delivery of possession" in the sale certificate despite the fact that he had taken over the possession of the property by publishing a public notice in the newspapers as provided under section 13(4) of SARFAESI Act r/w rule 8.
2. He has also modified the relevant sentence in the Sale certificate as below-
"The sale of the scheduled
property was made free from all encumbrances as known to the secured creditor except as stated in the Auction Notice dated 05-09-2017
published in 'The Assam Tribune [English]' and 'Dainik Asom
[Assamese]' "
3. AO, though has signed the sale certificate, has not mentioned his name in the Sale certificate
When I pointed out these defects and requested for correction and for the issue of sale certificate in the prescribed statutory form , AO flatly refused to make any corrections in the Sale certificate.
As a matter of fact, AO had not done his homework at all and has negligently conducted the entire auction process in so far as
A. In the auction notice, he had vaguely mentioned under the caption " Details of encumbrances over the property as known to the corporation" as below-
"Occupied by 50 numbers of tenants from last 38 years."
This obviously means that the entire property is under the occupation of 50 tenants whereas the fact remains that a few tenants ( may not be 50 in number) are occupying about 50% of the property.
Moreover, tenancy is not an encumbrance. Had tenancy been an encumbrance, Non-Encumbrance certificates would have made a mention thereof.
If this be the case, none shall build a property to let out the others and thereby encumber his own property with others.
Despite this position, If at all AO (erroneously) considers tenancy as an encumbrance, he was duty-bound under SARFAESI Act/Rules to first clear the encumbrance and then to sell the property under auction that he didn't do.
B. At the time the property was mortgaged with NEDFI, part of the property mortgaged and subsequently sold in the auction by NEDFI was previously sold by the borrower prior to the date of mortgage which AO failed to ascertain.
3. There appears to be some malafide on the part of AO as he wanted to sell the property to the tenants at a throw away price which he couldn't as I offered a price of 96.25 Lac as against reserve price of 55.25 Lac ( obviously to make some wrongful gains under some understanding with the tenants by benefitting them) and that is why now he wants to issue one faulty/defective/unacceptable sale certificate to me in violation of SARFAESI Act.
Now, AO is creating all possible hurdles. He wants to keep the possession of the property sold under auction with himself/NEDFI without passing on the same to me, though I have bought the property and have paid the full consideration therefore.
My problem is that if I accept the sale certificate as it is, I will not get delivery of the possession of the property bought by me. Unless the sale of an immovable property is coupled with the delivery of possession, the sale shall not be complete and that, as per Assam Land and Revenue Regulation, my name will not be mutated/ recorded in the records of rights.
Please refer the following link on Government of Assam website in which Para 21 under Mutation of land is relevant which says that for Mutation under Assam Land and Revenue Regulations, 1886, both title and possession are mandatory.
Without possession, the land shall not be mutated in the name of the buyer -
https://landrevenue.assam.gov.in/portlet-innerpage/faqs-on-mutation-%E0%A6%A8%E0%A6%BE%E0%A6%AE%E0%A6%9C%E0%A6%BE%E0%A7%B0%E0%A7%80-for-land
One more problem is there. Sale Certificate can't be registered with the Registrar after four months from the date of issue thereof.
I am in a fix as to within the period of three months now left over, how do I get the sale certificate corrected and How do I fix the AO for his apparently malafide acts.
