Upgrad LLM

physical possession order

Chief Manager(Law)

Is section 14 of the SARFAESI Act, 2002 

1. a procedure established by Law  or

2. due process of law

Is an order issued by CMM or DM under section 14 be treated as an order issued by following a due process of Law?

Can a tenant be evicted on the basis of said order?

 
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Lawyer

While passing the order, the issue who occupies the premises is not gone through. Tenant can protect his rights  by moving High Court against the order.  As far as due process of law, the order of CMM can not be faulted.

 
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POWER OF DEFENSE IS IMMENSE

Tenants rights are protected by common law and a tenant can take objection first in same court and than appeal or revision.

 
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partner.

The problem with SARFEASI act is that the CMM does not have to go through the merits of the case. He would  see whether 13(2) and 13(4) notices have been issued are not. Once he is sure about its issuance he orders for eviction of the person residing in that place. In other words law of natural justice is not atall followed. The only option left for the tenant is appeal in higher forums and prove his tenancy and  get relief accordingly.

 
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Advocate

Tenant can file appeal under sec. 17 of SARFAESI Act before DRT, for remeady and to protect his rights.

 
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manager

Raju Sir,   Does documents like agreement is necessary or only the possesion of the property with tenants is enough.

 
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Lawyer

Mr.Narendra,

I have to say yes to all your questions. As advised by Mr.Raju, any aggrieved party may approach the DRT under section 17 of the SARFAESI Act. Any aggrieved party includes a tenant also.

I would like to differ from the views of Mr.Khalid Masood - When a petition under section 14 is filed before a CJM or DM or CMM, he should see whether the notice under section 13(2) of the SARFAESI Act is served on the borrower and whether the secured property comes under his jurisdiction. If he is satisfied by both the above mentioned things he his duty bound to pass the possession order. Most of the high courts have viewed the same. Some High Courts are of the view 13(4) should proceed section 14, but the law is still not settled.

Request the views of other members also.

 
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