Re : bank loan
somesh
(Querist) 06 September 2013
This query is : Resolved
Dear experts
i would like to know whether bank can take possession of house (in which borrower stays) kept as collateral with bank under sarfaesi act as borrower has received the notice to pay the dues they had even mentioned about DRT in the notice.
i discussed the matter with someone and got to know that bank cannot take the possession of house of the borrower where he stays if he has another property with him.
how to deal with the situation kindly advise
Thanks
Rajendra K Goyal
(Expert) 06 September 2013
Bank can take possession of the mortgaged property under SERFAESI act.
somesh
(Querist) 06 September 2013
Dear Sir,
can bank make person homeless??
prabhakar singh
(Expert) 06 September 2013
The Procedure for enforcement of rights under the Act are as given below:
(i) Under Section 13 (2), a notice is to be issued to the borrower/co-borrowers/ guarantors/ surely giving 60
days time for setting the liability and also informing the intention of the secured creditor to take action under section 13(4) by taking possession of the assets.
(ii) After the expiry of 60 days, in case the amount due is not paid, the bank can take possession of the property and bring it for sale to realize the dues.
(iii) The borrower can seek any clarification and the bank is legally bound to answer the queries within 7 days
of such request.
(iv) As such the Act gives opportunity to a debtor to get whatever details he requires from the creditor thereby avoiding any arbitrary decision by the creditors as to the amount due, interest claimed etc. if there are mistakes or irregularity in the notice, the creditor can issue a fresh notice. However, the reasons so communicated or the likely action of the secured creditor at the stage of
communication of reasons shall not confer any right upon the borrower to prefer an application to the DRT.
(v) The notice under the Act can be issued only by an ‘Authorised Officer’ of the bank who will be an official in the rank of Scale IV and above.After taking possession,
the bank has to publish a possession notice in two newspapers for the information of the general public.
(vi) Such publication is to be made within 7 days of taking possession of the property. The borrower/mortgagor can approach DRT for redressing
grievances if any within 45 days from taking possession by the bank. Any party aggrieved by the decision of the
DRT can again approach the DRAT by filing appeal within the stipulated time of 30 days.
(vii) The property of which possession is taken can be sold only after obtaining valuation through Government approved valuer and thereafter publishing the sale notice in two news papers (one in vernacular) giving 30 days notice. Thus the property can be sold for maximum price with wide publicity. Any excess amount realized is not sufficient to cover the dues, the secured creditor can approach the DRT to recover the balance amount.
ANY THING HEARD OTHERWISE BY YOU IS WRONG.THERE IS NO SUCH PRIVILEGE AS YOU FEEL.
somesh
(Querist) 06 September 2013
Dear Sir,
Can i safeguard myself by taking valuation report before bank take any action like selling off the property below the market price.
Rajendra K Goyal
(Expert) 06 September 2013
Bank will sell it as per procedure in open auction, what safeguard you want to get by valuation. You can sell the house yourself after paying the Bank Loan or make an agreement to sell and ask the purchaser to pay the Bank Loan and get the sale deed completed.
prabhakar singh
(Expert) 06 September 2013
YES!FOR THAT THERE IS NO BAR.
FURTHER IF YOU OWN OTHER PROPERTY WHICH CAN FETCH YOU PRICE TO PAY LOAN BETTER SELL THAT AND DEPOSIT THE LOAN DUES.COMPROMISE ON LUMP SUM BASIS IS STILL POSSIBLE.
prabhakar singh
(Expert) 06 September 2013
YES!FOR THAT THERE IS NO BAR.
FURTHER IF YOU OWN OTHER PROPERTY WHICH CAN FETCH YOU PRICE TO PAY LOAN BETTER SELL THAT AND DEPOSIT THE LOAN DUES.COMPROMISE ON LUMP SUM BASIS IS STILL POSSIBLE.
Sudhir Kumar, Advocate
(Expert) 07 September 2013
repeated http://www.lawyersclubindia.com/experts/re-sarfaesi-possession-419591.asp#.UitBGH_Qzmk
Sudhir Kumar, Advocate
(Expert) 07 September 2013
also repeated
http://www.lawyersclubindia.com/experts/bank-loan-421026.asp
Rajendra K Goyal
(Expert) 08 September 2013
No further advise if repeated query.
