Notice u/s 13(4) of sarfaesi act

Querist : Anonymous (Querist) 03 January 2020 This query is : Resolved
My elder brother has taken loan in the joint name of my father without consent of my father .Property is in the name of my father but he has not executed any legal document relating loan but finance company has given 13(2) notice earlier and now they have given 13(4) notice ,what should I do now ?

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This discussion addresses a situation where a Section 13(4) notice under the SARFAESI Act has been issued for a loan taken jointly in your father's name without his consent. The property is in your father's name, but he did not sign any loan documents. Legal advice suggests challenging the notice before the Debt Recovery Tribunal (DRT) or a Civil Court, as only the property owner has the locus standi. It's also advised to consider criminal proceedings against the brother responsible for fabricating documents. A recent Supreme Court ruling allows borrowers to file applications under Section 17 even before physical possession is taken.

SHIRISH PAWAR, 7738990900 (Expert) 04 January 2020
Dear sir,
You can challenge the notice before civil court as your father has not executed any document for loan of your brother.
Regards,

ashok kumar singh (Expert) 04 January 2020
in your given facts, you may take following resources :
1. to place application under Section 17 of SERFESAI Act;
2. or to place appropriate suit before the Learned Civil Court of Law;
3. or to place your grievances before the Hon'ble High Court under Article 226 of the Constitution of India;
proceed immediately to get relief
BUT YOUR BROTHER is also responsible for such offences committed by him, as without consent of your father he manufactured such documents for his wrongful gain, therefore you may lodge criminal cases against your brother also, if your concise so advise.

Thanks' & Regards'

Ashok Kumar Singh,
Advocate

Sankaranarayanan (Expert) 05 January 2020
I do stand with learned friend suggestion Mr. Ashok kumar ji.

Dr J C Vashista (Expert) 05 January 2020
Challenge the notice before DART.

Azhagananth (Expert) 08 January 2020
only your father has locus standi to question such fraud and not you sir.

T. Kalaiselvan, Advocate (Expert) 11 January 2020
The bank had given notice under section 13(2) of the act whereas your father did not bother to give a reply, thus after stipulated time the bank has issued notice under Section 13(4) also.
Section 13(4) in The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002
(4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:—
(a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset; 2[(b) take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset: 2[(b) take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset\:" Provided that the right to transfer by way of lease, assignment or sale shall be exercised only where the substantial part of the business of the borrower is held as security for the debt: Provided further that where the management of whole, of the business or part of the business is severable, the secured creditor shall take over the management of such business of the borrower which is relatable to the security or the debt;]
(c) appoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor;
(d) require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt.
The Hon'ble Supreme Court (SC), in its recent decision in the matter of M/s Hindon Forge Pvt. Ltd. & Anr. v State of Uttar Pradesh [(Civil Appeal No 10873 of 2018 along with Civil Appeal No 10874 of 2018)] (Appeals) held that a borrower can prefer an application under Section 17(1) of the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (Act) even before physical or actual possession of secured assets is taken over by banks/financial institutions in exercise of their powers under Section 13(4) of the Act read with Rule 8 of the Security Interest (Enforcement) Rules, 2002 (Rules).
You may consult your lawyer and proceed legally against this action of bank.

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