Challenge the auction procedure in DRT. Highlight the fact that bank has not followed the prescribed procedure for auction. Seek order for cancellation of the entire process and and the sale thereby.
I want to challenge District magistrate physical possession and need to get my property back.
I took a loan in CANARA bank 1.05crore (75lakhs is term loan, 30lakhs OCC loan) bank released 75lakhs for plant and machinery but when i request funds for working capital needs bank Chief manager asked me to put a life insurance (Rs.2lakhs premium) on my father name, i refused to put insurance because he has already 1 for almost 2 months requested Chief manager but he use to say some reasons and refused to release funds. I complained with RO later bank automatically started to transfer funds from my OCC loan to term loan without my knowledge. I haven’t get OCC funds to startup my business, now OCC due is around 50lakhs. My Acc became NPA on july2018 and without serving proper demand notice, possession notice, sale notice. Conducted auction on 08/03/2019 and sold to some person 1.92acres land. And done a sale certificate. On 22/05/2019 bank done sale deed also, again on next day that purchased again sold that property to 10persons with partition. I have filed a case in DRT-2 Chennai on [deleted] case is still running. I told to Bank many times by mail and RPAD that i am ready to clear my loan if you can provide me details on my OCC loan (transaction details , statement, how my 30lakhs limit OCC loan is 50 lakhs now, and some miscellaneous transfer, etc..) but without providing details bank sold my property.. now also i am ready to clear full loan but i want my property back. But district magestrate given order for physical possession. I want my property back soon. Please guide me
Asked 4 years ago in Civil Law
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12 Answers
You ought to have taken legal proceedings for stay of auction
2) when sale certificate has been issued by bank and property further sold by auction purchaser you may find it difficult to set aside confirmation of sale by DRT
3) file appeal before DRAT offer to pay the balance loan payable with interest
Is the case on going with DRT
Have you been given an opportunity to participate in auction
Regards
G.Rajaganapathy
High Court of Madras
How come possible no stay / interim releif granted by DRT. Any improper procedure adopted by bank, instant stay from DRT. This procedural lapse, file Writ in High court.
Demand notice of 60 days and representation option to defaulter and without deciding the representation, bank cannot proceed for auction.
Auction an initio void.
- Under the SARFAESI act, at the time of the auction, the bank has either symbolic possession or physical possession of the property.
- Hence, under section 17 of this Act, the defaulter has his right to appeal with the DRT , within the period of 45 days from the date of order of auctioning.
- Further , the borrower has his righ to object if the property is undervalued for auction , and further bank is bound to refund any balance amount , after recovering the dues and all expenses of conducting the auction.
- Further, if the borrower wants to buy back its property after clearing all the dues , then banks duty is to give first perioty to defaulter before auctioning the said property .
- Hence, for stopping the District magisterate order , you should file an Appeal before DRAT.
Please file a writ petition in the high court against illegal and arbitrary orders of the bank and its its officials.
Regards
The bank ha s taken physical possession and also have sold the property to a prospective buyer, hence at this stage you can hardly do anything.
Since your matter is at DRT you may follow it through DRT, or you can file a writ petition venting out all your grievances with the support of documentary evidence and seek justice.
The bank cannot proceed with the possession of property without following due process of law as envisaged in sarfaesi act, hence you may first ascertain all the details before approaching high court for relief.
For getting direction you need to move your writ petition to the high court.
The High court direction in this regard will help you to save your property and you will be able to defend your case in DRT.
you need to approach the debt recovery tribunal for stay within stipulated period of sale as if there is any procedure lapse shown by bank in securetisation reconstruction and financial recovery act under section 13.
You have every right to get the required information from your bank on your loan account. You may even apply under the RTI Act and obtain the details from the bank. If you wish to settle out of court, you may negotiate with the bank on a 'without prejudice' basis. You may approach the DRT for stay of possession.
You need to challenge the same before DRT or in writ petition if the same is not legally ordered
You should file writ petition before High court against bank and DM for releasing your property on ground that no proper notice was served to you before taking possession and auction of property.
You should also take ground that loan was not properly released due to which you have suffered loss in business.
