• SARFAESI Act, authorised officer not handed over physical possession

Purchased 1303 SqY site under SARFAESI Act with Cell Tower in the site, sold as is where is.. basis  but mentioned in sale notice as vacant site. Later under RTI found that Affidavit under sec 14 also had not mentioned about Cell Tower. Authorised Officer doing nothing to vacate Cell tower ,,One year lapsed since issue of sale certificate. Site was under possession of Cell tower operator and borrower.How to get Physical Possession over the site
Asked 10 months ago in Property Law from Hyderabad, Telangana
Religion: Hindu
1) you ought to have taken inspection of premises before having purchased the land 

2) since you have paid full consideration and possession not handed over inspite of issue of sake certificate you can issue legal notice to bank to hand over physical possession to you 

3)if inspite of legal notice bank fails to hand over possession file application  in DRT against the bank to direct bank to deliver possession of the site 
Ajay Sethi
Advocate, Mumbai
23337 Answers
1220 Consultations
5.0 on 5.0
Option A file a suit for cancellation of sale certificate as the site is not vacant.
Option B: file a suit for possession against the original land owner and cell tower operator, issue a legal notice informing the Cell tower operator to quit, vacate and hand over vacant possession of the site immediately. Failure to do so file the suit for possession.
Kiran N. Murthy
Advocate, Bangalore
765 Answers
51 Consultations
5.0 on 5.0
Hi, you being the absolute owner of the site you have to issue notice to cell tower operator  to vacate the site.
2. If they fail to vacate it, then you have to file a suit for eviction.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
You should file a suit under section 47 cpc for execution of decree, i.e. vacating the site. As is where is means if property is depreciated due to any reason court shall not be responsible. But on your case tower is erracted and you had no notice at that time so it does not come under where is basis. 

Either you  claim return of sale appoint or claim compensation under sec 47 along with execution of decree. 
Shivendra Pratap Singh
Advocate, Lucknow
2769 Answers
41 Consultations
4.9 on 5.0
1. The Bank is supposed to get you the physical possession after getting physical possession from the DM against its application u/s14 of SARFAESI Act,2002,

2. If the Bank had mention the flat as vacant in their sale notice, then you can ;lodge a police complaint against the A.O. of the Bank for cheating you and write complain letters to its Chairman and Ombudsman,

3. You can also file a Recovery Suit claiming back the amount you paid including the Registration cost, interest and  damage and cost.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
Did you get a a sale certificate from the authorised person from bank? Rule 9(9) states that the authorised officer shall deliver the property to the buyer free from all encumbrances known to the secured creditor or not known to the secured creditor.Rule 8(4) indicates that where possession is taken by the authorised officer before issuance of sale certificate under Rule 9, the authorised officer shall take steps for preservation and protection of secured assets till they are sold or otherwise disposed of.The authorized officer is to deliver the property to the purchaser free from encumbrances in terms of Rule 9(9).The physical possession can be taken by the Bank by following the procedure laid down in Section 14 or after the sale is confirmed. 

The delivery of the site is the duty of the Bank. Banks to directly take possession of the secured asset under Section 13(4) of the SARFAESI Act and sell secured asset without the interference of Courts or the DRT.
Section 13(4) of the NPA Act proceeds on the basis that the borrower, who is under a liability, has failed to discharge his liability within the period prescribed under Section 13(2), which enables the secured creditor to take recourse to one of the measures, namely, taking possession of the secured assets including the right to transfer by way of lease, assignment or sale for realizing the secured assets.
As the borrowers have failed to discharge their liability in full within the period of sixty days from the date of notice, the secured creditors have exercised their right under sub-section (4) of Section 13 of the SARFAESI Act to take possession of the secured assets of the borrowers. once the secured creditor issues a notice to a borrower to take possession of a secured asset and the borrower despite such notice, transfers the possession of the secured asset by way of lease to a lessee without prior consent of the secured creditor, the lessee of such a lease is bound to surrender possession of the secured asset to the secured creditor. 

In your case the remedy is 
1. issue legal notice to bank to hand over physical possession to you.
2. If the bank is not act positively approach the DRT file application  against the bank to direct  to deliver possession of the site.


civil court for damages 
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
As per Sale Certificate you have become owner but you are not in legal possession ( though not actual possession).
You should issue a lawyer's notice to the Bank that possession should be delivered so that you can use and enjoy the property. You can also publish a public notice stating that title has passed to you and nobody should disturb your possession. Your case is that you are in legal possession but not in actual possession.The remedy is to file a lawsuit for eviction if the legal notice does not produce the desired result. 
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
You have to issue legal notice to the vendor demanding him to handover vacant possession of the property bought. If the authorised officer of the bank is not responding you may file a suit against him under specific relief act seeking direction to hand over physical vacant possession and also cost for mental agony.
T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
5.0 on 5.0
An "as is where is sale" is often misconstrued by bankers. As per sale deed bank should have handed over to you the plot of land (open space of land devoid of fixtures and attachments).  Since the sale is through sarfesai act, issue notices to bank for vacant possession of land and also ask for mesne profits(rents for cell tower from sale certificate date till to date). Then file an eviction notice to the cell tower operator. If no reply within 30 days file a suit. You will win the case hands down and courts will decide in your favour within 90 days.
Rajgopalan Sripathi
Advocate, Hyderabad
873 Answers
43 Consultations
5.0 on 5.0
1) The authorized officer is like a court receiver under Order XL Rule 1 Civil Procedure Code. He can take either symbolic possession and in appropriate cases he can take actual possession also. There is no dichotomy between symbolic and physical possesIon. 

2) he can sell the property without taking physical possession 
Ajay Sethi
Advocate, Mumbai
23337 Answers
1220 Consultations
5.0 on 5.0
No. He should first take symbolic possession and then actual possession. Sale without possession is invalid in eyes of law.
Rajgopalan Sripathi
Advocate, Hyderabad
873 Answers
43 Consultations
5.0 on 5.0
when a charge is created over the property, it is deemed that any transaction during such period of charge is null and void and therefore the law assumes that physical possession is deemed to be with the authorized officer when it is put to sale.
Kiran N. Murthy
Advocate, Bangalore
765 Answers
51 Consultations
5.0 on 5.0
1. No. With out taking physical possession of the mortgaged property, the A.o. can not arrange to sell the same,

2. He has to apply before the DM u/s14 of SARFAESI Act,2002 for taking possession of the said property for selling the same to recover the outstanding dues of the Borrower.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
Symbolic possession will be sufficient for the authorised officer to bring the property under auction and can sell it to the highest bidder as per auction held.  He will not be bothered about the physical possession of the property, the headache will lie on the bidder to vacate the occupant.  Hence it is always advisable to settle the full consideration amount only after confirmation of physical possession of the bank 
T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
5.0 on 5.0
The answer is yes.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0

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