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sukhbir singh (Businessman)     31 July 2010

Possession without written notice under SARFAESI

Can a Bank take possession even symbolic of a residential property without giving written notice of the date of possession of the same.   If it is in affirmataive please quote the rules,  and if they cannot they please tell me the rules under which I can file damage suit in court.


 13 Replies

niraj (legal practitioner)     31 July 2010

before taking possession of prperty,the bank is bound to serve a demand notice shong total recoverable amount ad details of property mortagaged with bank,which may be taken in possession,and to provide a period of 60days to deposite the entire due amount. 

niraj (legal practitioner)     31 July 2010

under sec.13(2)of SARFAESI Act.

Uday (Lawyer)     31 July 2010

Yes the bank is not required to give a notice of possession and the date of possession. The only thing they are required to do is to give a notice under section 13(2) of the securitisation act giving you 60 days time to repay the loan amount. If you have sent any objection to the notice, the bank has to reply within 7 days from the receipt of the notice.

Virender Negi (Lawyer)     01 August 2010

there is no provision of intimating notice for date of possession under the SARFAESI Act, 2002. Once the 13(2) notice has been served and the outstandings are not cleared within the statutory time limit of 60 days.. Bank/FI can proceed with taking possession by affixing the notice and getting the same published in two newspapers (out of which one has to be a vernacular).

sukhbir singh (Businessman)     01 August 2010

And if you make part payment after issue of notice u/s 13(2) accepting the representation within a week, issue NOC for disposal of property by the party subject to depositing part payment.    Will the action u/s 13(4) will go on.

Virender Negi (Lawyer)     01 August 2010

could u elobate?? how much % of the outstanding has been payed.. nd NOC given by whom..??

sukhbir singh (Businessman)     02 August 2010

Out of total outstanding (as alleged by the Bank) of Rs.2.63 crore i paid Rs.1,85 crore by selling one of the industrial property which was a part of notice u/s 13(2) for an amount of Rs.3.00 crore. Bank returned balance in my savings bank account and adjusted only Rs.1.85 crore as was the condition of my represetnation. Balance amount was to be restructured into term loan.  NOC was issued by Chief Manager of the Branch as per my representation/request which was duly considered in a meeting at Circle Office chaired by Circle Head in presence of all concerned.

Niikhil C. Shirgaonkar (Self Employed)     03 August 2010

Notice u/s 13 (2) is need to be given. Rules are described in the Act itself.

Uday (Lawyer)     04 August 2010

Dear Sukhbir,

If the facts mentioned in your submission are correct, and you have the written communication from the Bank, that they will drop the further proceedings under SARFAESI if the payment of Rs.1.84 is made, then this is a fit case to challenge it before the DRT when the property is either symbolically or physically possessed.

Ruksana (Proprietor)     07 August 2010

I taken possession of registred office & Factory Moable & Immovables of a DEFAULTER in compliance with DM Order.

Borrower Company approached  DRT claiming Board held meating at Registered office of the company (The office of thecompany was under lock & key and no meating was possible in the  pemises) and authorised one of the directr to proceed into the matter to the DRT.

Later on my objection Borrower plead that board meating was held in Parking of the premise.

Comment Pls

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     17 August 2010

Yes once payment is accepted or no reply given to the representation within seven days the original notice u/s 13 (2) will expire.

They will have to give fresh notice for remaining outstandings.

SACHIN AGARWAL (ADVOCATE)     04 November 2010

Dear Sukhbir,

If you have any communication with the Bank in writing and the Bank has taken action in contravention of the settlement and you have taken care of all teh settled terms with in time, you can file a petition u/s 17(1) before DRT having jurisdiction in the matter and you would certainly get the success.

VINOD VERMA (C E O)     07 June 2012

The bank / Lenderhas to give notice under the under the Sarfaesi Act 2002, rule 13(2) along with the complete details of the outstanding amount, the date of NPA, and also the details of the Security in the hands of the Bank, /Lender, the notice gives the borrower time to settle within 60 days or lodge protest in case of discrepencies and that is required by Law to be replied in 7 days by the Bank/Lender. The remedy with the borrower lies by filing pettion before the DRT in whose jusrisdiction he comes to file petition under sec 17(1) and seek stay against the proceedings. Normally, stays are granted when the PO DRT find that the hardship of the Borroiwer is genuine and also when the bank is harassing the borrower for no solid reason, whatsoever. A practising lawyer with DRT  can guide you the best, but please act promptly as delay to stop the Bank/Lender asap, could be fatal.

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