1. Auctioned Properties under the SARFAESI Act, are Sold on "as it is and where it is" condition. It is the purchasers liability to ensure clear physical possession and other unclear dues relating to the property.

2. HOWEVER, if the Bank's Sale Certificate under SARFAESI Act, has a clause of clear possession and no-dues, THEN the buyer can insist to the Bank for compliance of the Sale Certificate.

Keep Smiling .... Hemant Agarwal

If you have purchased a property under bank auction and Sale deed has already been done then if it is also registered and you have paid the consideration for purchase then you can have the physical possession of the property as per the clauses mentioned in the deed.

Dear Client,

In one of ruling Hon`ble Supreme Court held, with symbolic possession, .the entire interest in the property not having been passed on to the creditor in the first place, thus remained a secured creditor in the Act even after sale deed executed in favor of third person.

Contact for ruling.

Through the sale deed you are acquired the title and symbolic possession of property. Therefore, if the bankers approach the court to get a physical possession of property it would help you to get the physical possession of the property as soon as early. In the auction sale notice they would have mentioned and assured that the physical possession will be deliver to the auction purchaser that is the reason why they may have approach the Court. In that scenario, it is a duty upon the bankers to deliver the physical possession to the auction purchaser. Therefore there is nothing wrong they can proceed the case to get the physical possession.

Bank can seek for physical possession of property since you have purchased property under bank auction. If the bank has not got property cleared you can insist to the bank to hand you over vacant possession of the premises.

14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset.-

(1) Where the possession of any secured assets is required to be taken by the secured creditor or if any of the secured assets is r quired to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured assets, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or as the case may be, the District Magistrate shall, on such request being made to him-

(a) take possession of such asset and documents relating thereto; and

(b) forward such asset and documents to the secured creditor. (2) For the purpose of securing compliance with the provisions of sub- section (1), the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary.

(3) No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any court or before any authority.

Please go through this provision it clearly mentions bank can seek for possession to transfer property or to sell property as such it has right to file a case.

Yes if property is already purchased by you now you have to file an suit for eviction and get possesion of the property as property was sold by bank on symbolic possession.

The section 14 applies where property is secured by bank now the property is no more secured by bank it already being sold.

Further the terms of sale deed need to be persuaded if bank write that sale is complete once it hand overs the physical possession than bank can file.

The purpose of bringing the property for sale is only to recover the dues from the borrower. Once the property was auctioned and the sale was confirmed and Sale Certificate was issued and also money was recovered, the purpose is over. Therefore, the bank cannot be termed as a secured creditor and there cannot be a secured debt.

2) he Calcutta High Court, on Friday, ruled that a secured creditor cannot maintain an application under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 after issuance of a sale certificate, in order to obtain actual physical possession of the property....

Hello,

if the sale deed has been executed and no case was filed before the execution of the sale deed and also the property was not mortgaged then the bank can not put the said property for auction under the SARFESI Act.

Regards

The bank will not undertake the responsibility to take physical possession of property.

The bank has executed a registered sale deed in your favor and the condition is as is where is basis.

Therefore it is your own responsibility to take possession by due process of law.

You should have ensured physical possession before bidding for this in the said auction.

1. Your lawyer is right. There is a Judgement passed by Calcutta High Court stating that when the property has been sold and sale proceeds have been deposited with the loan account and the dues has been recovered closing the outstanding loan account of the borrower, the lending bank does no longer stand as the secured creditor to initiate or pursue SARFAESI Proceeding in connection with the said loan.

2. It is illegal for the Bank to sell mortgaged property before taking possesion of it as per SARFAESI Act.

3. Now, wait for some time to see whether the bank can really take physical possession of the property through DM's order or not

4. If the bank fails to hand over possession of the sold property ton you within a short time, You shall have to file a Writ Petition against the Bank seeking relief and the Bank will be directed to refund your amount with registration cost with interest.

5. There are several such W.P.s filed before the Calcutta High Court in this regard.

Dear Sir,

It is the bank which is the Secured Creditor and able to file application and get possession. Its obligation to get possession and deliver the same to you under the sale deed which has executed otherwise you can issue a notice to the bank and claim possession along with damages. The Section is very clear.In my service I have passed such orders. In your case you have bring presssure on the bank otherwise it is invalid sale deed as possession was not given to you.

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The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002

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14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset.—

(1) Where the possession of any secured asset is required to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured asset, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him—

(a) take possession of such asset and documents relating thereto; and

(b) forward such assets and documents to the secured creditor.

(2) For the purpose of securing compliance with the provisions of sub-section (1), the Chief Metropolitan Magistrate of the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary.

(3) No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any court or before any authority.

Yes the bank doesn't have my right under section 14 after execution of registered sale deed.

The right, title and interest of the secured creditor (the vendor) stands transferred to and vested with the purchaser upon the execution and registration of the deed of conveyance which is otherwise duly stamped. On and from the date of such document, the secured creditor ceases to have any interest in respect of the immovable property concerned. The legal or the deeming fiction of Section 13 ceases to operate upon such sale deed being registered. Therefore, the secured creditor does not retain any further right to meddle with the immovable property, under the provisions of the Act, in order to invoke Section 14, for the purpose of possession or otherwise.