Notice by bank under section 13(4) under sarfaesi act report

You should have taken objection when 13(2) notice was issued.

If there is no legal mortgage than also you can take objection for possession and force the lender to bring an order from a competant court.

Mr. Pavan,

Do not look at the issue in this manner. There r ways by which the possession of both the plots and properties can be stopped. The borrower is not entirely helpless under Sarfaesi Act. Consult a good lawyer & take suitable action.

If u r from Maharashtra u may contact Adv, Manish Bohade on 9371505560. A close friend of mine has been able to save his residential bunglow with the help of Adv. Bohade.

The Bank has already detailed the schedule of the property they have taken symbolic possession of  in their Notice u/s 13(4) of SARFAESI Act,2002. They will not take over any other property for which no notice has been issued by them. Hopefully the details of Plot A was not mentioned in Notice u/s 13(2) of the Act also. Hence, if the Plot A has not been mentioned in  neither of the notices u/s13(2) & 13(4), they can not incorporate the adress of Plot A in their application to DM u/s 14 of the Act for taking its possession through Police help.

When the sale deed of both the plots being A and B are deposited meaning thereby that both are equitably mortgaged . Either there may be some serious technical / legal problem in enforcing the mortgage against the plot A or the value of the plot B may be sufficient to cover the loan. However now when under section 13(4) the possession of only plot B has been taken , the same can only be sold.

Dear Sir(s)

Thank you so much for your valued opinion.

I understand that the bank cannot take the possesion of the plot which is not cover in notice under section 13(4). The clarification I am seeking is that the house property is a composite house property built over both the plots. The plot A is a shop room.

The area of plot A is say 200sqft., but the shop room(one single room) is built on 250sq ft. also the stairs leading to the first floor for construction on plot A is on plot B.

Now how the property is going to be demarcated by bank and will the bank block the stairs leading to first floor, also the shop room around 2-3 feet is constructed on plot B will be taken possession of.

Thanks.

Dear Sir(s)

Thank you so much for your valued opinion.

I understand that the bank cannot take the possesion of the plot which is not cover in notice under section 13(4). The clarification I am seeking is that the house property is a composite house property built over both the plots. The plot A is a shop room.

The area of plot A is say 200sqft., but the shop room(one single room) is built on 250sq ft. also the stairs leading to the first floor for construction on plot A is on plot B.

Now how the property is going to be demarcated by bank and will the bank block the stairs leading to first floor, also the shop room around 2-3 feet is constructed on plot B will be taken possession of.

Thanks.

Dear Sir(s)

Thank you so much for your valued opinion.

I understand that the bank cannot take the possesion of the plot which is not cover in notice under section 13(4). The clarification I am seeking is that the house property is a composite house property built over both the plots. The plot A is a shop room.

The area of plot A is say 200sqft., but the shop room(one single room) is built on 250sq ft. also the stairs leading to the first floor for construction on plot A is on plot B.

Now how the property is going to be demarcated by bank and will the bank block the stairs leading to first floor, also the shop room around 2-3 feet is constructed on plot B will be taken possession of.

Thanks.

Yes. The Bank will take over possession of the property mentioned in the notices which normally details the land identification (plot no. in this case) and the construction at present and in future. 

There are so many procedure to be followed prior to sale which lender normally skip.

1) They can not take forcible possession without your consent.

2) Even if symilic possession is taken the valuation has to be obtained and your consent has to be taken.

3) There has to be advt in two popular newspapers for possession and sale.

And at all these stages you can create many problems foer them.

 Facing Sarfaesi action Boldly

As advised by my learned friend, creating problems for the Bank should not be the only aim , efforts should be made for resolving them.

I would like to bring in to the kind notice of members some relevant facts about Sarfaesi action as under:

1) There is no question of seeking consent of the borrower for taking over Physical as well as Symbolic possession of the property. If the taking over of possession is resisted by the borrower, forcible possession can be taken with the help of Chief Metropolitan Magistrate / District  Magistrate  under section 13(4) of Sarfaesi Act.

2) Valuation of the property at the time of fixing Minimum sale price is normally taken from approved Valuer , But the consent of the borrower for it is not required under the Act.

3) There is no doubt about it that possession notice as well as Sale Notice is to be published in two News Papers, one of the National Level and the other of the Local level / State level.

4) As far as the problem regarding division of the property is concerned, the bank normally sells the property on “AS IS WHERE IS BASIS “. Naturally if there will be problems regarding division etc. it shall reduce / devaluate the price of the property.

I fully endorse the view expressed by Mr.Ajith Singh.  Please meet a good advocate who is practicing for borrowers in your jurisdiction DRT and immediate prefer Securitisation Appeal under Sec.17 of the SARFAESI Act. If the Advocate Commissioner appointed by District Magistrate/ CJM comes with police, for taking physical possession of the property explain the position that full property is not mortgaged to the bank, even though the tile deed of the full area was deposited with the bank.  Try your level best to avoid giving of possession of entire property.  DRT can pass Orders preventing the taking of physical possession of property, if you engage a good advocate and properly argue the case.

Mr.Sashi Kumar, even if you change your picture and name of the user for thousand times, you can be identified.

Dear Mr.Raju,

Though I agree with the major portion of Mr.Ajith's answer, I differ from the views expressed by him in the 3rd point. SARFAESI Act never says that publication should me made in one national level daily and one in local level daily. The act says that paper publication should be given in two dailies out of which one should be in vernacular language. It just says that one publication should be in the vernacular language. It does not recommend state level news paper or national level news paper.

 Possession notice Publication under Sarfaesi Act

Mine was the only interpretation of the words used in the Act. And I stand by it.

Under Rule 8 (2) of The Security  Interest ( Enforcement ) Rules , 2002.

Notice to be published “in two LEADING NEWSPAPERS , one in vernacular language having sufficient circulation in that locality , by the authorized officer “.

Its only the interpretation of two leading newspapers as National and State.