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Rahul D (Executive )     23 July 2014

How to file caveat with district magistrate?

The case is of a bank trying to take possession of a property under sec (14) of SARFAESI Act through the DM. My question is three fold:

1. I understand that the DM office and the DM court are two separate entities. Will the bank approach DM office or the DM court for possession purpose?

2. Can we file caveat in DM office/court so that if Bank file a case to take possesion of property than we should be served a notice for hearing before permitting bank to take possesion? I hear from many lawyers that there is no provision for caveat in DM office or the DM court?

3. Procedure to file such a caveat?

Thanks in advance.



Learning

 4 Replies

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     24 July 2014

Dear Rahul

my opinion on your queries are as under:

1. I understand that the DM office and the DM court are two separate entities. Will the bank approach DM office or the DM court for possession purpose?

 

Opinion: if the borrower is not ready to take peacefully possession then the bank may file an application u/s 14 of SARFAESI Act, 2002 to secure possession after seeking police protection from DM.

 

2. Can we file caveat in DM office/court so that if Bank file a case to take possesion of property than we should be served a notice for hearing before permitting bank to take possesion? I hear from many lawyers that there is no provision for caveat in DM office or the DM court?

 

Opinion: The caveat petition may be filed before DM court under section 148A of C.P.C.

 

3. Procedure to file such a caveat?

 

Opinion: the procedure of filing the caveat is as under:

i) draft the petition with affidavit

ii) send a copy to proposed opposite party by speed post or registered post

iii) affixed the postal receipt with the caveat petition

iv) attested the petition and verified the affidavit.

v) Vakalatnama if engaged any lawyer along with required fee.

vi) file the same before filing counter or court Ahlamad.

 

Feel Free to Call

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T. Kalaiselvan, Advocate (Advocate)     26 July 2014

The CMM or DM can be mandated to  assist the secured creditor in taking possession of the secured asset.  These officers will make sure that once the creditor has given him in writing that all  other formalities of the act have  been done, the CMM or DM will take possession of such asset or documents relating thereto and forward such assets and documents to the secured creditor.  Such an act of CMM or DM cannot be called in question in  any court or before any authority.  However, anticipating such action a caveat petition may be filed before the CMM or DM. 

will make sure that once the creditor has given him in writing that all other formalities of the act have been done, the CMM or DM will take possession of such asset and documents relating thereto; and forward such assets and documents to the secured creditor. Now, here, you have to note that such an act of the CMM or DM can not be called in question in any court or before any authority.

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Debjit Mukherjee (Advocate)     23 March 2015

With all due respect, Mr. Qureshi and Mr. Kalaiselvan are both wrong inasmuch as secured creditor is not entitled to take possession with police assistance. I have personally handled cases where such action was quashed by the High Court in Writ Jurisdiction. Anyone who has suffered such orders, kindly contact your respective advocates and raise this issue.

T. Kalaiselvan, Advocate (Advocate)     23 March 2015

With due respects to my learned friend advocate Mr. Debjit Mukherjee, I would like to bring it to your kind notice that neither I nor my learned friend advocate Mr. Nadeem Qureshi have anywhere meant or mentioned about police assistance in our replies, it is your erroneous observation hence remarks on un found substance.  You may also note that even the querist did not ask clarification about police assistance for possession.  So I request you to restrict your reply to the query alone and not beyond that.


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