LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Subbu (None)     08 October 2013

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.



Learning

 14 Replies

Akhilesh Kumar (Legal Counsel)     08 October 2013

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. 

1 Like

Subbu (None)     08 October 2013

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?

Akhilesh Kumar (Legal Counsel)     08 October 2013

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.

1 Like

Subbu (None)     08 October 2013

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

sujnyanendra (Proprietor)     10 October 2013

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     13 October 2013

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

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     13 October 2013

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.


(Guest)

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.

RAJU O.F., (Advocate)     26 October 2013

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.

Subbu (None)     27 October 2013

The identical notice is once again pasted on a later date after  approx 80 days with dates, figures, contents remaining same. Bank hasn't replied to my objections earlier within 15 days. I have once again sent a reminder to my earlier objections. Does mere pasting of same notice tantamount to its issuance once again ? Thanks in advance.

RAJU O.F., (Advocate)     30 October 2013

Since the pasting was only reproduction of earlier Notice and since the Bank did not respondent within 15 days from the date of your objections/representations, the said Demand Notice u/S13(2) has become invalid and hence bank cannot proceed further in pursuance to the said Notice. If bank issued Notice u/S13(4) for possession of property, it can be quashed through DRT.

MANOJ HARIT (LAWYER)     31 October 2013

I agree with Mr. Raju O.F. Sir. U should move the DRT u/s 17(1) 

Arun kumar (MANAGER)     29 May 2015

our bank came with poile suddenly with out notice and demanded us to vacate factory premis immidiatel on 11-04-2015..

The bank stopped production and sealed all premesis and refused to give any documents eve afetr posession.

now they have put up in newspaper and for sale value 50% less than valuation report submitted to bank on 2013.

what should i do ?

aman (manager)     19 October 2015

Originally posted by : RAJU O.F.,

Since the pasting was only reproduction of earlier Notice and since the Bank did not respondent within 15 days from the date of your objections/representations, the said Demand Notice u/S13(2) has become invalid and hence bank cannot proceed further in pursuance to the said Notice. If bank issued Notice u/S13(4) for possession of property, it can be quashed through DRT.

Please suggest as to which could be more appropriate judidicial court and right time to move for quashing the said invalid demand notice (13-2) as there is still around 20 days left for 60 days statuatory provisions to be completed. The bank has not replied to 13-2 notice but can proceed further with issue 13-4 pursuant to completion of timeframe of 13-2 and also publish in notice for sale of Properties as mandated under Rule 9 of the Rules (‘Notice of Sale’)

Also, The said bank is co-operative bank and there have been several high court judgements inclusive of full bench decision squarely covering the matter pertaining to "Co-operative banks cannnot invoke sarfaesi and their recovery proceedings should be in accordance with the cooperative societies act of the state"

Can we have file writ petition at earlier stage (Article 226) to have the demand notice set aside and then, file our other greviances thereupon ?

Regards


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Recent Topics


View More

Related Threads


Loading