Pls discuss on the following instance:
Suppose, for instance, a borrower availed a Mortgage Loan of Rs. 10 Lakhs for a tenure of 5 years, out of which he has paid his EMIs for the period of 24 months, continuously, and failed to remit his EMIs on the following 3 months i.e., from July’2009 to September’2009. But again, he started paying from the month of October’2009 to February’2010 without any interruption. Although, he communicated to his Bank Manager that he’d adjust the overdue amount (Apprx. Rs. 85,000) on the successive months, the manager has sent the SARFAESI Notice by declaring his account as NPA.
As per RBI Guidelines, we understand that the account of any concern/individual can be declared as NPA by the banks when NO amount (Interest/Principle) is deposited by the borrower/guarantor in their account for the last 90 days (earlier it was 180 days) and the Overdue should be greater than or equal to Rs. 1 LAKH. But, in this case, the borrower has deposited the EMI amount in his account thru’ Cheque or NEFT regularly, except for the aforesaid period of 3 months, and the Overdue only is less than 1 Lakh.
Moreover, he never effected any Electronic Standing Instruction (SI) or ECS from his SB account. But, the Manager has effected the SI from borrower’s SB account (maintained with the same branch) without the borrower’s consent / knowledge. Later, we understand about the Manager’s intension that he was trying to show the borrower as ‘Defaulter’. While asking about this to the concerned manager, there was a dispute among the borrower and the manager. Also, the Manager added that the borrower’s overdue amount is around Rs. 1.4 Lakhs (with some penal charges) so that he has sent the Notice u/s 13(2); but refused to send the Amortization Schedule of borrower’s Loan A/C though he requested the same, many times. But there's no chance of these much amount to be reflected according to borrower's view.
As per RBI guidelines, we understand that ‘’Banks have a right to exercise lien under section 171 of the Indian Contract Act against the dues from constituents/customers. However, the banks CAN NOT exercise lien over the personal account of a customer on the ground that money was due to the bank in another account where he acts in a different capacity, if there is no agreement to that effect’’
Also, Is that been possible to get Stay/Interim order by filing an appeal u/s 17 with DRT before the possession has been taken by Banks? Else, Can the Borrower/Guarantor pay any partial or part amount ( i.e., 1/4th or 1/3rd of the total amount outstanding) and stop/hold/postpone the action u/s 13(4)?
So, kindly clarify on this matter and let me know how to deal with his case. Thanks!!