Vinesh K Chhaya
(Querist) 01 October 2019
This query is : Resolved
A Multi State Scheduled Bank has possessed an immovable property without application of section 14 SARFAESI Act-2002 and made auction and soldout said property. The borrower filed suit for declaration under CPC, and prayed for cancellation of said transaction and sale certificate including whole process of recovery. Bank replied and argued that section 34 of SARFAESI applys here, Court allowed argument of bank and suit was dismissed without hearing of application for interm injunction . My question is when possession of property has taken without any order of District Magistrate under section 14 of SARFAESI Act-2002 then the provision of section 34 sarfaesi act-2002 is applicable or not?
(Expert) 01 October 2019
1. Has the Bank taken possession of the mortgaged property u/s13(4) of SARFAESI Act,2002 forcibly from you?
2. If yes, then have you lodged any police complaint against the Bank for such taking possession of your property forcibly?
3. If not and if you have voluntarily handed over possession of the said mortgaged property to the lending Bank, then it need not apply section 14 of the SARFAESI Act,2002.
4. Section 34 of the said Act is not applicable in such case.
Dr J C Vashista
(Expert) 02 October 2019
Besides the valid and relevant points hereinabove, how the suit is maintainable under CPC before Civil Judge against the action of Bank (lender) to take possession and auction mortgaged property? The appellette authority against the action of DRT is DART and not civil Court, recheck. Submit to your reply to the questions raised by expert Mr. KK Ganguli for consideration and forming an opinion to oblige. It is advisable to seek professional services of a local prudent/senior lawyer with case file for proper appreciation of facts/documents, guidance and proceedings
Vinesh K Chhaya
(Querist) 03 October 2019
K. K. Ganguly ji Thanx for guidance ... I would reply to your question (1) that Bank has taken possession without consent of borrower.. the disputed factory was closed (Non Working) ..and the borrower informed after sale without auction fulfilled .. police officer orally said that this matter is civil matter we can't interfere in it...
(Expert) 04 October 2019
Has the Bank informed the borrower of the legal authority, if any, for them to take possession of the mortgaged property and the sell the same by auction?
Vinesh K Chhaya
(Querist) 04 October 2019
Not informed by bank about any process of auction
(Expert) 05 October 2019
1. If the Bank has taken forcible possession of your property without due process of law then it is considered as criminal matter and not civil matter.
2. There is existence of section 14 of the SARFAESI Act for the purpose of taking possession of the property with police help as per DM's order.
3. You should file a Writ Petition before the High Court against police inaction.
4. However, now find out faults of the Bank in providing you loan and then file a SARFAESI Application u/s17 of the SARFAESI Act,2002 praying for setting aside all the SARFAESI Action initiated by the Bank and to return your property illegally taken possession by them.