Time limit for writ after dismisal of appeal u/s18of srfaesiact
prasanta kumar parida
(Querist) 12 October 2011
This query is : Resolved
IT IS URGENT FOR ME TO KNOW THE TIME LIMIT TO MOVE THE HON'BLE HIGH COURT UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA AFTER THE DISMISSAL OF APPEAL U/S18 OF SRFAESIACT2002 & PROCEDURE TO BE FOLLOWED BY THE BANK.
Shastri J.K.
(Expert) 12 October 2011
no any time fixed for the same but it must be file within a reasonable time
prabhakar singh
(Expert) 12 October 2011
ARTICLE 226 & 227 confers powers in HIGH COURT to provide equitable remedy when law does not provide any alternative remedy.Law of limitation does not apply to writs but no inordinate delay in filing the writ should be caused and writ should be filed not beyond 90 days.
prasanta kumar parida
(Querist) 12 October 2011
BUT MR. PRABHAKAR SIR,AT THIS JUNCTURE WHAT POSSIBLE STEPS CAN BE TAKEN BY THE BANK?
prabhakar singh
(Expert) 12 October 2011
Dear sri Prasanta kumar parida!
I feel unable to reply within scope of facts shared by you with me.You may please tell the facts in back ground to let me anticipate about possibilities that bank may initiate as action.
prasanta kumar parida
(Querist) 12 October 2011
AFTER RECIEVING OF NOTICE OF THE BANK IN TAKING OVER POSSESSION ONE CASE WAS FILED BEFORE THE TRIBUNAL UNDER SECURITIZATION ACT, WHICH HELD THE ACTION OF THE BANK AS LEGAL & NOW THE APPELLATE TRIBUNAL HAS CONFIRMED THE TRIAL COURT ORDER WITHOUT GIVING ANY TIME TO MOVE THE HON'BLE HIGH COURT NOW PUJA VACATION IS GOING ON, SO TILL FILING OF A WRIT PETITION & OBTAINING AN INTERIM ORDER FROM THE HON'BLE COURT, WHAT POSSIBLE STEPS CAN BE TAKEN BY THE FINANCIAL INSTITUTION/BANK?THIS MUCH I CAN DISCLOSE KEEPING INTACT THE LAWYER-CLIENT RELATIONSHIP PREVILAGES
Raj Kumar Makkad
(Expert) 12 October 2011
As you anticipate possible appeal by respondent/mortgagor, you can file a prior petition before high court with a copy to respondent/mortgagor so that you be heard first prior to passing of any order on anticipated appeal by him against the judgment passed in favour of bank.
RAJU O.F.,
(Expert) 13 October 2011
If you are appearing for the mortgagor, file Writ Petition at the earliest, before High Court and try for stay of all further proceedings by the bank. In the meanwhile bank may take physical possession by approaching chief Metropolitan/ Judicial/ District Magistrate u/S.14 of SARFAESI or even directly put the property for sale by issue of sale notice.For sale also 30 days notice is mandatory.
prasanta kumar parida
(Querist) 13 October 2011
MANY MANY THANKS MR. RAJU BUT I AM UNABLE TO UNDERSTAND AS TO WHY SUCH VASTAUTHORITY IS GIVEN TO THE FINANCIAL INSTITUTION IN A CENTRAL GOVT. LEGISLATION?SUPPOSE A LOAN IS SANCTIONED WITHOUT VERIFYING THE FACT THAT, THERE IS NO BAR UNDER ANY LAW FOR MORTGAGING OR ANY SUCH PERMISION AS REQUIRED UNDER A LAW OF THE LAND IS NOT OBTAINED, IS IT LEGAL TO TAKE OVER & SALE THE MORTGAGED PROPERTY WITHOUT PUNISHING THE ERRING OFFICIALS OR LAWYER GIVING OPINION FOR ACCEPTING SUCH A PROPERTY AS SECURITY.WILL NOT THE NECESSARY PERMISSION FROM COMPETENT AUTORITY BE REQUIRED FOR SALE BY BANK. TO BE MORE SPECIFIC,IN ORISSA THERE IS A LEGISLATION NAMELY ORISSA LAND REFORM ACT, WHERE SECTION 22 ENVISAGES TO OBTAIN PERMISSION FROM THE SUB-COLLECTOR, BEFORE TRANSFERRING ANY LAND BELONGING TO SC & ST COMMUNITY&WHILE GIVING PERMISSION THE AUTHORITY IS TO CONSIDER THE FACTS LIKE WHETHER THE PERSON WILL BE LANDLESS OR NOT ,WHETHER THE LEGAL NECESSITY IS JUSTIFIED OR NOT & WHETHER THE LAND IS PROPERLY VALUED OR NOT? SEC.23 SAYS ANY SALE WITHOUT PERMISSION U/S22OLR ACT IS NULL & VOID.
Guest
(Expert) 21 November 2011
Dear Prasanta,
With reference to your last query, I may point out to you that you have not stated anywhere in any of your previous queries that the land was agrarian or other type of land to which the case realted, and also whether that pertained to any person belonging to SC or ST community or not, and that too in Orissa, as against the new facts brought in your latest query.
Secondly, about sec.22 of the OLRA, that section is applicable on the agricultural land of only the ST community, not to SC community, as you used the word "SC & ST" while referring the section of the Act.
Third, about vast authority granted to the financial institutions in Central Legistation, it would have been better had you referred any specific section of specific legislation vide which any specific vast authority has been granted to the financial institutions. About sanction of loan without verifiction of facts, it solely rests on the discretion of the financial institution and delegated powers of the Board of the Company to the subordinate authorities. Central laws. If the Government tries to impose each and every type of restrictions on the companies, they would not be able to conduct any business in India and no foreign investments can be earned as may be needed for the commodities like oil and several other things, which Indian citizens have to use even in several of their day to day needs.
Last, but not the least, the financial institutions would not be able to reclaim their loan dues, if they are made so powerless by the legislation.
HOWEVER, ALL DEPENDS, ON CASE TO CASE BASIS, IF YOU CAN PROVE MISUSE OF ANY POWERS ON THE PART OF THE CONCERNED FINANCIAL INSTITUTION.
prasanta kumar parida
(Querist) 21 November 2011
THANK U MR. DHINGRA, I KNEW THAT,NONE OF THE EXPERT WILL COME FORWARD FOR GIVING TIPS WHEN THE MATTER INVOLVES THE NEGLIGENCE OF A CORPORATE LAWYER IN GIVING WRONG ADVICES OR IN DOING ALL THE THINGS WITHOUT APPLYING HIS LEGAL BRAIN BUT AS PER THE INSTRUCTION OF THE CONCERNED CORPORATE OFFICIALS FOR THE CAUSE BEST KNOWN TO THEADVOCATE COMMUNITY.
Guest
(Expert) 21 November 2011
You are wlcome Prasanta.
