• After losing case at HC seeking pre-emptive legal measures against bank's coercive action

Dear Lawers,

Please refer to linked document below.
Here is the overall case 

https://docs.google.com/document/d/1N6nV5lsa0mxdtGJnYfy9vvvDUS0mECKlbWWQnTkmVms/edit

Here is HC judgement for you to read
https://drive.google.com/open?id=1ZTjCj8GM2DWkBgRaXJP-4lRtFA-jQjdT

Here is in depth Case lookup
https://drive.google.com/open?id=1T7y4TwEX-FXuPXpcBxWz4zUh8yldK8rYKBPv7CbeoWw

Based On first and latest link above please let us know your Valuable Legal opinion. You may msg the borrower directly on provided mobile no. herewith or also email him at [deleted].

Please share your valuable Legal opinion suggesting legal remedies for us.
Asked 4 years ago in Property Law
Religion: Hindu

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6 Answers

order passed by DB of Bombay HC does not suffer from any infirmity

2) Hc has held that magistrate cannot adjudicate on contents of affidavit

3) if complete information is not provided in affidavit then magistrate has to return application to secured creditor

4) if complete information is provided in affidavit magistrate has no option but to pass order for possession of assets

5) you should wait for magistrate to pass orders on application made by bank

Ajay Sethi
Advocate, Mumbai
87917 Answers
6207 Consultations

5.0 on 5.0

Dear Client,

Order has no consequences against the bank and just lapse in filling affidavit in per required clause, which court allowed to rectify,

At this stage u can file representation u/s 13(3A) of the act, this could have filed at the time of proceeding u/s 13(2) but to buy some time, u can file even now as proceeding u/s 14 is at rectification.

Once order passed u/s 14 and Actual possession, appeal u/s 17 .

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. The high court in its order has referred to an order of division bench which held that the magistrate only has to assist the creditor in taking possession of secured asset and does not have power to adjudicate on the dispute between borrower and creditor

2. It has also stated in the order that the situation remains same before and after amendment to s. 14 of sarfaesi act and its not that the borrower is without any remedy

3. So the high court has simply followed prior decision of division bench and disposed of petition by setting aside the magistrate order

4. The court has also stated in the order that the application filed by bank is not in the prescribed format required by the proviso to section 14 of sarfaesi act

5. So bank will have to file a fresh application in the prescribed 9 points format. Also all contentions are kept open

6. So i dont see any ground available to you to challenge the high court order because it has simply followed the ruling of a division bench

7. Let me study section 14 of sarfaesi before and after its amendment and get back

Yusuf Rampurawala
Advocate, Mumbai
6880 Answers
79 Consultations

5.0 on 5.0

1. i have gone through s.14 sarfeasi after it was amended and also your case note

2. the amended s.14 only states that the magistrate has to satisfy himself that all information enlisted in the proviso are covered in the application filed by the bank u/s 14

3. if the information is not as prescribed then the application can be rejected

4. in your case the magistrate went a step further by holding that the account is standard and not NPA

5. u/s 14 no adjudication rights are granted to the Magistrate

6. he only has to see that the affidavit required to be filed by bank contains all the required information and after satisfying himself with the contents, he has to pass an order on the bank's application

7. so the order passed by Magistrate is not as per s.14. He only had to decide whether the application of bank is proper and has no power to adjudicate whether the account is standard or NPA

8. the High court has taken care of this and directed the bank to file a fresh application containing all the required information as prescribed in the proviso to s.14 and after satisfying that all the information is proper, the magistrate has to pass an order directing his office to take possession of secured asset

9. the high court has perused the bank's affidavit and found it to be not in order and hence directed bank to file a fresh application before the DM

10. It does not matter that you did not inform the HC that the bank's affidavit was taken from DRT proceedings and submitted to the DM

11. Your SLP will be dismissed. Even any review of the HC order will not be upheld

12. You have not informed what was the loan amount you took from the bank and whether there was any default in repayment by you

Yusuf Rampurawala
Advocate, Mumbai
6880 Answers
79 Consultations

5.0 on 5.0

1. If bank itself says that your account is not NPA, then you must file a separate writ petition in high court to call for the records and proceedings of trial court and after adjudication to quash the proceedings.

2. I fail to understand then how the trial court proceedings are going on when the account is regular and standard and there is no loan repayment default

Yusuf Rampurawala
Advocate, Mumbai
6880 Answers
79 Consultations

5.0 on 5.0

you can file appeal against HC order before SC as account was standard and not NPA

2) you can also apply for review of order before HC as it has not considered fact that Magistrate has held that account was not NPA and SARFESI act was not applicable

Ajay Sethi
Advocate, Mumbai
87917 Answers
6207 Consultations

5.0 on 5.0

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