cpc

grounds to borrowers appeal -sarfaesi


a) When can a borrower appeal with DRT ?  Bank issued 13 (2) notice already. I have raised my objection for which they have not replied to me within 7 days. Notice period of 60 days expired. Banker pasted the same notice (even dates) on door recently.  Does this tantamount to action by banker under 13 (4) ?  My understanding is that only after such an action deemed to be taken under 13(4) or upon bankers arrival with a JMM/MM order for eviction, I can raise SA with DRT. Please enlighten.

b) When should the borrower deposit the required amount with DRT, at the time of appeal or at a later stage ? What is the timeline available to arrange for this amount ? 

Thanks in advance.

 
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Legal Counsel

Dear queriest,

The Borrower can file an application before DRT U/s 17 after taking measures u/s 13 (4) by the Bank not before that. What are the contents of the  notice pasted notice on doors? The requisite fee are applicable along with SA at the time of filing the Applecation before DRT. If the Bank did not reply of the onjections made U/s 13 (3A) by the borrower it amounts to non compliance of the procedure laid in the Act. The Borrower may prefer Writ Petition before the High Court also. 


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Notice heading says it is issued under 13 [2]. It mentions amount due, property details, 60 days notice period and upon non compliance intention of bank to resort to measures under 13 [4]. I am worried... should I count 45 days from date of pasting this notice or need to wait for their issuance of 13 (4) notice or eviction action through JMM/MM order?

 
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Legal Counsel

Statute provides the reply of  raised u/s 13 (3A) shall be given to the Borrower within prescribed time there after notice to take measures U/s 13 (4).

a) Whether you have raised objection to the notice U/s 13 (3 A) and sent to the Bank?

b) Whether 45 days have been passed from your Objection sent to the bank.

c) the 60 days shall be counted from the date of the issuance of the notice pasted on the doors. they must have written the exact date for taking measures u/s 13 (4).

d) you have to wait till notice for measures by bank.


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Reply   
 

My response to your quessionaire:

a) Yes, Sir. They haven't replied back in 7 days.

b) Yes.

c) 13 (2) notice received by post. Objection raised on 40 th day. Bank hasn't replied by 48th day. Bank pasted same 13(2) notice on door on 85 th day. Does this tantamount to measure under 13(4)?

d) ok.

Thanks & Regards

 
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Proprietor

 
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Advocate/ nadeemqureshi1@gmail.com

Dear Subbu

The reply of your reply send under Section 13 Sub section (3A) is a mandatory provision which should be followed by Bank & the bank is duty bound to serve the written rejection latter or reply on your objections/reply within 7 Days otherwise all the proceeding will be illegal & count as harassment.

this is a best ground to file an appeal before DRT.

Feel Free to Call

 
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Advocate/ nadeemqureshi1@gmail.com

Read The section Care fully

(3A) If, on receipt of the notice under sub-section (2), the borrower makes any  representation or raises any objection, the secured creditor shall consider such representation or objection and  if the secured creditor comes to the conclusion that such representation or objection is not acceptable or 

tenable, he shall communicate within one week of receipt of such representation or objection the reasons for 

non-acceptance of the representation or objection to the borrower: 

 PROVIDED that 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 Debts Recovery Tribunal under section 17 or the Court of District Judge under section 17A.

 
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If the aggrieved party had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then such aggrieved party could have availed remedy by filing an application under Section 17(1). The expression any person used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.

 
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Advocate

Please check the date mantioned in the Notice u/S13(2) pasted. If Bank did not respond to your earlier objections within 15 days ( not 7 days as per amended Act), they would have issued fresh Notice. If the fresh Notice pasted is a different date later to earlier Notice, issue your objections/representations within 60 days from the dte of fresh notice. If Bank did not reply within 15 days, the Notice u/S13(2) would be invalid.

 
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