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nagarajan (company secretary)     04 May 2009

POSSESSION OF IMM PROPERTY UNDER SARFESAI

a bank which has taken the collector order for taking over the possession of the property however the same was not executed and in the mean time the immovable property was sold and certificate of sale was issued to the purchaser and the purchaser now writing to bank for the vacant possession and subsequent registration of the property and whether the purchaser is right to do so and whether the bankers can refuse to hand over the possession saying that already certificate of sale is issued. the auction notice is "as is where is basis".



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 11 Replies

Swami Sadashiva Brahmendra Sar (Nil)     04 May 2009

purchaser's demand is lawful. bank can not refuse..

Y V Vishweshwar Rao (Advocate )     04 May 2009

I do agree with  Advocate Shri Thirpathi Ji

The sale  & Purchase is as is whre is , but the  duty of the Vedndor  is  to be complied by the Vendro /Bank  , by executing the  Regd  Sale Deed and actually delivering the possession of the  Proerty- as is where is  , with out these the  sale is not completed . The sale  Confirmation and  Sale Certificate are concluded sale  proceedigns , the   Regd  Sale Deed and  actual delivery of possesison is  to be complied by the Vendor  Bank .

 

Pranshu (Lawyer)     05 May 2009

yes the bank can reply so..and definatley they wont deliver u the possession...they already got their money so y wud they trouble themselves for u and ur possession of the property. consult some criminal lawyer can there be a likelihood to capture the bank and its officers under criminal law...sec 420 of IPC. but this alone will not solve ur problem..u'll have to file a civil suit for possession...bank must be made a party and all the concerned thereupon....another way out is this if u have enuf money and a good police n political hold then throw him out of the property..

Pranshu (Lawyer)     05 May 2009

Though i agree with the aforesaid reply of my learned friends...but y wud bank involve themselves just for the sake of possession when they have got their money....now there may be a 99 % possibility for the bank to refuse to deliver the possession..then only way out for u 'll be to file a criminal complaint against the bank....under sec 420 ipc...else u can file a suit for possession...else if u have a good police or political hold then throw him out of the property...i think consumer b lag sakti hai...coz u have availed te services of the bank however u purchased it frm auction..but even then the services rendered by the bank were deficient and falls undere the perview of unfair trade practices...so go ahead for the best wch suits u

Pranshu (Lawyer)     05 May 2009

Though i agree with the aforesaid reply of my learned friends...but y wud bank involve themselves just for the sake of possession when they have got their money....now there may be a 99 % possibility for the bank to refuse to deliver the possession..then only way out for u 'll be to file a criminal complaint against the bank....under sec 420 ipc...else u can file a suit for possession...else if u have a good police or political hold then throw him out of the property...i think consumer b lag sakti hai...coz u have availed te services of the bank however u purchased it frm auction..but even then the services rendered by the bank were deficient and falls undere the perview of unfair trade practices...so go ahead for the best wch suits u

Y V Vishweshwar Rao (Advocate )     05 May 2009

 

You can also file   A  Petition/appeal / Application U/S 17 of the SARAFASI  Act  befoe the DRT for the relief  !

 

G.H. SUBBU (Advocate)     12 October 2009

As per the SARFAESI ACt 2002, the Bank has to deliver free possession to the auction purchaser, even if they sold the property in "as is wherein condition".  You have also informed that the Bank has already has got the Orders from the District Magistrate for eviction of the property.  It is under SEc.14 of the Act. You can approach a lawyer to file petition under Sec.17 of the Act or you can resort to step in to High Court for suitable direction to give free possession of the property.

Uday (Lawyer)     13 October 2009

Mr.Subbu, can you pls let me know the provision of Sarfaesi Act which states that vacant possession should be delivered to the Auction Purchaser? In my understanding section 17 entitiles any aggrieved person to go for an appeal. It may be either the borrower or the person who has charge over the property can prefer an appeal. Pls enlighten me. I welcome the views of others also.

G.H. SUBBU (Advocate)     13 October 2009

Dear Uday,

Please refer the SEc.17 of the Act, which read as follows:

17. Right to appeal: (i) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of sec 13 taken by the secured creditor or his authorised officer under this .....

So, any person including the borrower (here the definition for the borrower as per the act, is borrower, guarantors, mortgagor etc.  Hence it is clear any per can resort to DRT under Sec.17 of the ACt.

Uday (Lawyer)     14 October 2009

Dear Subbu, in my understanding section 13(4) speaks about the possession and measures to recover the debt. May I know in what way the purchaser is an aggrieved party as contemplated in 13(4) of the act?

N.Ramakrishnan (Advocate/ Senior Partner)     14 October 2009

Dear Mr. Vishvshwar,

Let me also add my part to the confusion. If the auction sale conditions stipulate that the property is sold on "as is where is" basis, then you have no remedy against the bank. In this case the bank has filed Sec. 14 application with the Dist. magistrate for taking possession of the property. However, admittedly, the said order was not executed by the Dist magistrate.

The purchaser, while purchasing the property, was aware of the lack of possession by the bank. Therefore, unless the bak has committed to the purchaser in writing or the auction terms stipulate that possession will be given, the purchaser has no remedy. There is no remedy under sec. 17 of the act and the purchaser will not come under the defenition of "person aggreived" thereunder.

Since the secured creditor has already sold the asset to a third party, the order under sec 14 passed by the Dist. magistrate has become infructuous and cannot be executed. The principle of "Caveat Emptor" applies to your case.

Thanks,

N.Ramakrishnan, ADV

 


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