Uday (Lawyer) 10 July 2009

SARFAESI NOTICE

Dear members, we had sent notice under section 13(2) of the SARFAESI Act. Subsequently on verification we came to know that the schedule has been wrongly mentioned in the notice. What is the remedy available to us to rectify the mistake. 1) Whether we can send a corrigendum to that notice? or 2) Can the notice be recalled and fresh notice be issued? or any other remedy is available. What is the legal position to resolve this problem. Pls enlighten me with relevant provisions of law.

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7 Replies

Y V Vishweshwar Rao (Advocate ) 13 July 2009

You can Issue Fresh Notice with Correct Schedule and make reference of previous Notice which was with inocrret Schedule !

sanjeev (chartered accontants) 19 July 2009

we have received the notice u/s 13(2) of SARFAESI, we want to reply, what contents should be there in generalk & specifical. pl suggest.

V.V.RAMDAS (Advocate) 19 July 2009

dear friend ,

You can Issue Fresh Notice under the same provisionwith Correct Schedule and make reference of previous Notice which was with inocrret Schedule ! give correct & incorrect shedules.

P.Selvakumar (Advocate) 26 July 2009

your second option is o.k. since it is a statutory Notice and the demanding amount will be revised as per contract with the defaulter. you have to send fresh notice with revised demand amount and schedule of properties.

A.K.D Sayare (Advocate) 08 August 2009

Uday it would be better idea to withdraw wrong notice and then issue fresh notice under section 13(2). as under the act 2002, section 13(2) is mandatory requirement, if you dont withdraw that notice and issue fresh notice instead, that will be best ground for stay of bank's action under securitisation before DRT.

Virender Negi (Lawyer) 30 September 2009

I agree with Mr. Sayare.. the 13(2) notice is a crutial action under the SARFAESI Act. if the same is wrong then the whole process is defeated moreover it leaves grounds for the borrower/defaulter to seek remedy against the bank on the grounds of malafide and harassment etc.. So it would be better to withdraw the earlier wrong notice and issue a fresh notice.

Sandeep S. Dhingra (.) 07 October 2009

THE SCENARIO IS AS UNDER:

Company "A" was enjoying working capital limit (Export PCL) with a bank.

Due to recession world over, the PCL became overdue and hence bank classified account as NPA on 31.12.2008.

Above limit was guaranteed by Individual "B".

Individual "B" was also enjoying Term Loan from the same bank. The account was being serviced regularly. The loan was a mortgage loan on a "Land & Building" mortgaged by way of Equitable Mortgage. The said "Land & Building" was also CONTINUING SECURITY to the working capital limits given to Company "A".

The Bank recalled the Loan from the Company "A" on 31.01.2009 and issued notice under SARFAESI on 04.09.2009 to Company "A". However to our suprise without recalling the loan of Individual "B" they have issued notice under SARFASEI on the same date i.e. 04.09.2009.

Company "A" is a registered company under the Companies Act and registered in Delhi. Individual "B" is a resident of Haryana and the "Land & Building" is situated in the State of Haryana.

Under the Haryana Stamp Act, Stamp Duty @ 0.2455% needs to be paid on the extent of charge of the Equitable Mortgage, HOWEVER NO STAMP DUTY HAS BEEN PAID AT THE TIME OF LOAN DOCUMENTATION. THE EQUITABLE MORTGAGE IS NOT REGISTERED WITH ANY REVENUE DEPTT.

MY QUESTION:

1. Can the EM document be taken as evidence since the document has not paid the required stamp duty?

2. Can the bank, on the basis of EM document (which has neither been registered nor the applicable stamp duty paid) issue notice to Individual "B" (Guarantor to NPA accout) whose account was regular.