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nandan (dir)     09 February 2011

SARFAESI -Property possession

I have purchased a propery from United Bank through public auction. The property is in symbolic possession with the bank. Now upon full consideration being paid to bank, will the bank get the physical possession from the borrower and hand it over to me(buyer)?

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 15 Replies

Manikantan (junior)     09 February 2011

Sir you can approach the district magistrate / CMM (Metropolitan magistrate) U/s 14 of the NPA Act for assistance for taking physical possession of the property, as by buying the property under the Auction you have steped into the shoes of the Bank. Dont except hte borrower or the security owner to come to your doorstep and handover the keys

RATNADEEP D JOG (COMPANY SECRETARY)     10 February 2011

Sir

To answer your question you need to give more details. Firstly, there is nothing like a symbolic possession under the SARFAESI Act. Possession is possession and there is no distinction between symbolic and physical possession. Secondly, you need to confirm whether any appeals are pending against the action taken by the bank. If so the outcome of the litigation will have a bearing on whether you will be given the possession or not.Thirdly, what documents were executed between your self and the Bank at the time you made the payment will also have to be considered.

nandan (dir)     10 February 2011

Dear Sir,

The bank have the symbolic possesion, means that they dont have the key of the property and the property is still under the borrower however the bank have served the borrower a possesion notice and a copy of notice has been pasted in a prominent place of the property. The Advertise in news paper was "possesion cum sale notice"

secondly, no appeals are pending against the action taken by bank.

third, after completion of tendering process the bank immediatedty issued a confirmation letter accepting the bid amount and asket for 25% of total consideration(Less the EMD amount) immediately. we paid that alongwith our covering letter asking the bank to get the papers ready for sale and peacefull possesion and we will pay the rest amount on getting confirmation from bank side.

RATNADEEP D JOG (COMPANY SECRETARY)     11 February 2011

Sir

 

Thanks for your mail.

But no time line has been mentioned by you so it is presumed that these are recent developemnts. Hence you should follow up with the Bank and get the property transferred in your name at the earliest as any delay may be harmful becoz the borrower can challenge the bidding process also.

R D JOG

 

RAJU O.F., (Advocate)     12 February 2011

Even if you had paid full amount under the bid, you may not, even the bank can not get physical possession, if the matter is stayed and pending before DRT/DRAT/HC or SC Courts.

RAJU O.F.,Advocate, Chennai

1 Like

sanjay kumar (BE/ LLM in Corporate Laws)     21 February 2011

Nothing has been defined as "symbolic posession" in SARFAESI Act,2002. "Symbolic possession" means either no possession or possession with some encumberance.

The Bank has to take possession of the property before handing over it to the new buyer. Its the Bank who has to take the help of DM/ CJM is getting the possession from the Borrower.

Please take these clarifications from the Bank before moving ahead. You have to keep in mind that once the Bank gets back the money against the NPA, it will be hardly interested in the case further.

1 Like

aftab alam (director)     10 February 2012

I AFTAB ALAM,  had participated in the public auction for purchase of a house under SARFAESI ACT 2002 done by SBI Main Branch, Begusarai on 27.12.2011 and paid all the amount i.e Rs. 551000/- (Five Lakh Fifty One Thousand only) on 27.12.2011 on which auction has been finalised by Bank. Then State Bank of India, Main Branch Begusarai given me the SALE Certificate according to rule 9(6) of SARFAESI ACT 2002 of that house. When I demanded physical possession of that house from bank I came to know that the previous defaulter borrower of the bank and the previous owner of that house Mr. Faiyazul Haque, Moh- pokharia, ward No-35, Begusarai the borrower with his family is residing in that house illegally after unlocking the sealed property just few days after sealing the house i.e just after 29.07.2011. The Chief Manager, SBI Main Branch, begusarai given a request letter dated: 23.01.2012 to Town Police Station Incharge for taking the lawful action against Mr. Faiyazul Haque for the criminal activity done by him and for the vacation of that house but till today only F.I.R had been lodged against Mr. Faiyazul haque vide registered case no- 50/2012 dated: 03.02.2012 in town P.S and further no any more action had been taken by police or by Begusarai administration for the vacation of that house for giving me the possession of that house. Sir I want to know that is it not a crime that a house is being sealed by the order dated: 21.02.2011 of District Magistrate, Begusarai through appointment of magistrate and with the help of police force on 29.07.2011 and had been sold through public auction by Bank on 27.12.2011 and Mr. Faiyazul Haque broke that seal and started to live in that house? And is there no any way to vacate that house which is illegally captured by Mr. Faiyazul Haque even after F.I.R. No- 50/12 dated: 03.02.2012 had already been lodged? Sir i want to know that Begusarai Administration/ Police/ SBI Bank have no rule regulations for the vacation of that house. Sir if Mr. Faiyazul Haque will take the bail in this case and after that he will still live in that sealed house then what I should do for the vacation of that house please advice me. If Administration, Police and the reputed banks like State Bank of India will not support the bidders to give the Physical Possession of the auctioned property done by any govt. organisation then will any bidder participate in auctions like this?

Therefore you are requested to kindly arrange to give the possession of the House as soon as possible so that I had not to suffer please.

For this kind act I will always be thankful to you.

 

Detail of the House is given below:-

Khata No- 04, Khesra No- 60, 61, Tauzi No- 617/2246

Area-06 Dhoor In Moh- pokharia, ward no-35, Distt.+ Po.+ P.s- Begusarai

Bounded:-

On the North by: - Pakka Road (6 ft. Width)

On the South by: - Land of Panchu Miyan

On the East by: - Residance of Panchu Miyan

On the West by: - Open Land of Panchu Miyan

 

 

Your’s Faithfully

 Mob: 9431425786

 email: aaaaftab@live.in, aaaaftab@yahoo.co.in

please email me for the help

RATNADEEP D JOG (COMPANY SECRETARY)     13 February 2012

Sir You can initiate proceedings against the Bank as it is the duty of the Bank to vacate the house and hand over the possession to you.
1 Like

RAJU O.F., (Advocate)     14 February 2012

Purchasers of the properties from banks under the SARFAESI Act have to bear the risk of all such problems, since SARFAESI Act even though enacted about 10 years back, each bank officials and even courts interpret the Act & Rules provisions according to their own understandings.  Still the laws under the said Act are not adequately settled.  Normally bank had to issue separate possession notice u/S13(4) and Sale Notice u/R8(6). Some banks stipulate illegally in the sale notice that 'as is where is,  as is what is, without recourse, without entertaining any complaints,  without responsibility of tax or other dues of the borrower, etc.'.  If the bank is selling a property, which was leased for long period to another party, they have disclose that fact in the sale notice.  Hence the purchaser gets the property subject to lease, after the lease period.

The purchaser cannot directly go to CJM u/S14 for taking physical possession of the property, the bank had to do that and give vacant possession to the purchaser. 

MANOJ HARIT (LAWYER)     14 February 2012

Adv. Raju O.F. has stated the correct position of law. Agree with his views.

praveen bhandari (mysore)     22 August 2014

Sir my self praveen ., i had taken a loan from bank for rs 4 lack on my house, and i had paid rs 5160000

but same years i cant pay EMI . Bank had sent a possession  notice that to pay 5 lacks in 60days.. Sir please help me.. what to do now.. 

RAJU O.F., (Advocate)     22 August 2014

Better consult a lawyer who is conversant with SARFAESI Act and Rules and cause to send your objections or representations within 60 days from the date of Demand Notice u/S13(2). Till that period bank will not do any thing. Bank has to answer your objections within 15 days from the date of receipt of objections.

lavanya chiriki   12 August 2018

Hi Nandan, i read your case about property auction which u posted 7 years ago. I'm with something similar to your case. I have few things to talk to you. Can you email me back on lavanyachiriki@gmail.com
 

Uday (Lawyer)     03 November 2018

Mr.Nandan, the bank is duty bound to file a petition under section 14 of the SARFAESI Act and evict the borrower before it registers the Sale Certificate in your favour. If they fail to do so and if you foresee any delay you may approach the High Court by way of a Writ. As of now, you are the owner of the property only on papers. Please act swiftly.


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