• Section 13(4) Bank Securitization and Enforcement of Security Interest act - Defense Options

Hello,

I am writing to explore the options available in the case where the bank is trying to enforce symbolic possession of the defendant's secured assets submitted against the loan to the bank.

A notice for recovery was sent over but ignored by the defendant. The notice was sent on 07/10/2021 but the defendant failed to respond within 60 days with the outstanding payments of Rs.60,00,000 towards this loan. 
Another notice was received on the failure to respond back with the owed money to the bank on 28/12/2021. This notice was based on section 13(4) of the securitization and reconstruction of financial assets and enforcement of security interest act. The bank now claims to have submitted the paperwork to the magistrate and is seeking legal auctioning permission from them. 

In order to deal with this situation with the bank, the defendant closed down on a deal with the purchaser who would like to buy his asset for approximately Rs. 2,20,00,000. This would cover the money owed to the bank. The deal was secured very recently and a Rs 10,00,000 deposit was received towards it. The second installment is scheduled after the property is listed publicly for buyers satisfaction to ensure it has no legal issues or debt associated with it (background screening of the owner). Once posted in the newspaper this could become a red flag as the bank may object especially because the bank has taken aggressive steps on proceeding with security possession already which raises concerns of losing this deal made by the defendant with the purchaser. 

The issue is that the bank already has paperwork submitted to the magistrate and claims to have no way of revoking this request. The only way the bank suggests can help the defendant is by paying the outstanding and getting the registry of the property immediately. 

1). What are the defense options available for the defendant at this point?
2). Is hiring a lawyer going to help in this situation?
3). Can this situation be delayed?
4). The defendant defaulted on the notices given to him, any way this can be cured?
5). Can the bank revoke their request to pursue possession of the security assets?
6). Can the bank pursue this without going legal? How does this work?
7). Can the bank pursue even when we have the deal made with the buyer for the property invovlved? Can an affidavit be submitted confirming the deal and schedule of values to delay this act allowing the bank to get possession of out property??
Asked 4 years ago in Property Law
Religion: Other

9 answers received in 1 day.

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9 Answers

You cannot file application in DRT against order taking symbolic possession 

 

2) securitisation application under Section 17(1) of the Act is maintainable only when actual/physical possession is taken by the secured creditor or the borrower loses actual/physical possession of the secured assets. Once the right to approach DRT matures and securitisation application under Section 17(1) is filed by the borrower, it is open to DRT to deal with the same on merits and pass appropriate orders in accordance with law 

 

3) make an offer for OTS . Enclose cheque of RS 10 lakhs and request bank for 6 months time to make balance payment 

 

4) you can engage a local lawyer 

 

5) if you have failed to reply to notices it cannot be cured now 

 

6) you can inform bank that you have buyer for the property and will be in position to repay the loan amount on acceptance of offer of OTS 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

 

Act as mentioned herein above 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

1. Defenses - demand notices were not received  ( though they were received). Bank can easily demolish this defense if it can show that notices were duly served and received by borrower. Another defense is that npa was wrongfully declared. Again that won't stop the public auction. If u succeed then the auction sale can be reversed. But auction won't stop unless full dues of the bank are paid with auction expenses incurred so far

2. Completely your wish. Lawyer is not a magician that somehow magically he will get the auction stopped. He can only submit your legal defenses against the auction which the DRT will decide 

3. If you can somehow manage the bank then may be 

4. Obviously by making payments to the bank of the demanded amount 

5. Yes if you pay up their dues 

6. You can give a OTS or a one time settlement and request for debt restructuring. But giving an ots offer means acknowledging the dues of the bank and accepting that as correct 

7. Try and approach the bank. The bank can in place of auction go for a private treaty where from the sale price agreed with the buyer the bank will require that its dues be directly paid by buyer to the bank and balance can be paid to borrower by buyer 

8. Once magistrate passes an order for possession then the bank will move immediately and take possession with help of police assistance. The bank will then issue a sale notice by auction of 30 days. So you still have 30 more days to pay the dues of the bank. If you pay them then the bank will not conduct the public auction. So it would be in your interest if you tell your buyer to pay the sale price fast so that the property does not go to any third party in public auction 

Best way to approach - it's common sense! PAY THE DUES OF THE BANK AND REDEEM YOUR PROPERTY! I DONT THINK THAT IS SO DIFFICULT TO COMPREHEND 

Other questions asked are similar questions though in different ways. You are just running round the Bush and wasting time. It would be prudent to expedite the completion of sale with your buyer and from sale proceeds pay the 60 lacs plus other charges of the bank and claim back your property. Approach the bank and inform that you have found a buyer for Rs 2.2 crore and from that he can directly pay the dues of the bank and balance will come to you. The bank will willingly agree for private treaty as its auction expenses would be saved and it also gets it money back. What the bank ultimately wants is its money. Whether its through public auction or private treaty just doesn't matter. Think practically and rationally. It's not your case that the bank is wrongfully demanding the money from you. You seem to have acknowledged the bank's dues. 

Hope this helps 

Yusuf Rampurawala
Advocate, Mumbai
7899 Answers
79 Consultations

At this stage, only DRT can help you. Obtain stay by hiring DRT advocate immediately. 

Dalip Singh
Advocate, New Delhi
1096 Answers
36 Consultations

Defendant can avoid auctioning of property by making offer of one time settlement for clearance of bank dues 

 

magistrate may take a month or so to pass orders 

 

you can file application before DRT for stay PF auction 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

The bank can anytime withdraw the same if you make the full payment there is no hard and fast rule that it can't withdraw. You can also approach DRT and deposit the amount and take stay

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

1. The bank has initiated process for physical possession by filing an application before the magistrate court, hence until and unless the bank decides to withdraw the application nothing can be done on it.

The bank can withdraw the application and also close the loan account if the defendant arranges to pay the entire amount at one stroke.

2. The decision is to be taken by the borrower and not the lawyer, the lawyer can only assist and not get the legal process of the bank stopped for any reason.

3. The borrower can talk to the management of the bank 

4. Nothing can be done on it because the borrower intentionally ignored the notices served on him.

5. & 6.  Read the first answer above.

7. The deal is between the borrower and the buyer, to which the bank is not a party, however the bank can consider the request of the borrower provided it is satisfied with the terms and conditions that the bank may impose in this regard. 

It is again the discretion of the bank,, hence you may have to approach the bank with a request based on the reliable documents proving the confirmed deal with the prospective buyer. 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

The bank after issuing the notice may not delay the process of auctioning the property.

Once the property is auctioned then the bank will handover the physical possession of the property to the highest bidder without accepting any request of the borrower.  

The borrower can approach DRT but if the borrower had ignored issuing a reply or making any attempt to resolve the loan by making arrangements for repayment, then the borrower's request  for stay of the auction proceedings before the DRT may also not sustainable.

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

The borrower has to act swiftly by arranging the payment schedule to repay the loan with the help of the funds to be provided by the subsequent  prospective buyer. 

Even though the process of getting sanction of the magistrate for taking physical possession and for auction sale of the proeprty under loan may get delayed, it cannot be predicted that the bank can be stopped by DRT until and unless you have produced the documentary evidences for the steps you had taken with the bank for permitting you to repay the loan amount within some time period.

You may first talk to the bank authorities about this and then take a decision that would be required to proceed in furtherance.

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

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