Business and Law
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Activity:
Question posted: 08 01 2009 21:02:02 +0000,
2 answers, 159 views, last activity
07 06 2010 20:18:08 +0000
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Yes, But it depends upon the facts and circumstances of the case.
1. Generally if the eviction has been made by the bank/finance company without following the procedures and regulations, on approaching the appropriate court, suitable relief would be granted.
2. Presently the SARFAECI ( Securitisation act) has come into play wherein the banks have been authorised to take possession of the property and there after sell the same through public or private negotiations. In such case the banks should give notice S.13(2) and there after take possession under S-13(4). Only after action is taken unde S-13(4) the affected party can approach the DRT.
3. In almost all the cases there are to be some lacunae and errors which can help the borrower to regain the property. But unless there is absoute violation or illegalities in the action, the barrower could only seek time and then make proper arrangements to pay the payment by mutual discussions for a amicable settlement and get rid of the whole problem. ( There are also RBI guidelines for reduction in rate of interest or waiver in certain cases)
NANDKUMAR B.SAWANT.,M.COM.LL.B.(MUMBAI),ADVOCATE
MOBILE.09325226691, 09271971251
e.mail.adv.nbsawant@yahoo.co.in
REGARDING THE DEFAULTER TO REGAIN POSSESSION OF HOUSE KINDLY NOTE THAT
1.A DEFAULTER CAN REGAIN THE POSSESSION OF HOUSE BUT HE HAS TO APPROACH APPROPRIATE COURT FOR JUSTICE.
2.KINDLY NOTE THAT THE PERSON CAN FILE A WRIT PETITION TO THE HONOURABLE HIGH COURT ON THE GROUNDS OF ILLEGALITIES COMMITED BY THE BANK BY CHARGING HIGHER AND CUMULATIVE RATE OF INTEREST AND ALSO CHARGING PENAL INTEREST AND ALSO ADDING RECOVERY CHARGES ADVOCATE FEES AND NOTICE CHARGES AND MISCELLANEOUS CHARGES.
2.KINDLY NOTE THAT THOUGH IT IS LEGAL FOR THE BANKS TO SEIZE THE PROPERTY ,BUT IN CASE OF RESIDENTIAL HOUSE AND HARDSHIPS TO BE FACED BY THE CONCERNED FAMILY A LIENIENT VIEW MAY BE TAKEN BY THE COURT AND THE MATTER MAY BE REVIEWED.
3.I HAVE SUCCEEDED IN GETING STAY FROM HIGH COURT BOMBAY BENCH AURANGABAD ON ATTACHMENT NOTICE IN A MATTER WHERE THE COOP.BANK ISSUED NOTICE OF ATTACHMENT OF PROPERTY UNDER SECURITISATION ACT.THE SAID RESIDENTIAL HOUSE WAS SHEDULED FOR ATTACHMENT WITIN JUST TWO DAYS WHEN THE CLIENT HIS WIFE AND SON, DAUGHTER IN LAW APPROACHED FOR HELP.THE FAMILY WAS VERY HAPPY WHEN WE SUCCEEDED IN GETING STAY FROM HIGH COURT ON THE LEGAL POINTS OF ILLEGALITIES BY THE SAID COOP.BANK.THE STAY WAS GRANTED BY DIVISION BENCH OF THE HIGH COURT OF BOMBAY BENCH AT AURANGABAD IN THE SAID MATTER.
4.BUT KINDLY NOTE THAT UNDER SECURITISATION ACT ,BANKS ISSUE NOTICE OF ATTACHMENT OF PROPERTY IN THE MATTER OF LOANS MORE THAT TEN LAKHS, IT IS A 60 DAYS NOTICE.ON THE EXPIRY OF 60 DAYS NOTICE PERIOD BANK OFFICIAL COME WITH ALL OFFICERS AND POLICE AND ATTACH THE PROPERTY OF THE BORROWER OF LOAN.THEN THE BANK ISSUES NOTICE OF 45 DAYS FOR SALE OF THE ATTACHED PROPERTY .AND AFTER 45 DAYS NOTICE PERIOD IS OVER THE BANK WILL SELL THE SAID ATTACHED PROPERTY.
5.KINDLY NOTE THAT DEBTS RECOVERY TRIBUNAL HAVE THE JURISDICTION IN THE MATTER.BANK OR THE DEFAULTER HAS TO FILE AN APPLICATION WITH ALL SUPPORTING DOCUMENTS TO THE DEBTS RECOVERY TRIBUNAL.AND CAN SEEK THE RELIEF.
6.BUT THE FACT IS DEBTS RECOVERY TRIBUNAL ARE ESTABLISHED FOR HELPING BANKS TO RECOVER HUGE BANK LOANS ABOVE 10 LAKHS.KINDLY NOTE THAT NO OTHER CIVIL COURTS HAVE JURISDICTION IN THE SAID MATTER.BORROWERS HARDLY GET ANY RELIEF IN THE MATTERS.
6HENCE IT IS ADVISIBLE THAT IN CASE LOAN AMOUNT ARREARS ARE LESS THAN 10 LAKHS THE BORROWER SHOULD APPROACH THE HONOURABLE HIGH COURT OF JUDICATURE HAVING THE JURISDICTION IN THE AREA WHERE THE PROPERTY IS SITUATED.
7KINDLY NOTE THAT THESE ARE BRIEF INSTRUCTIONS ,IN CASE YOU NEED ANY FURTHER HELP ,KINDLY SEND EXACT DETAILS ,WILL DEFINATELY HELP YOU.
KINDLY NOTE THAT THE JOB OF ADVOCATES IS LIKE DOCTORS AND ADVOCATE SHOULD ALWAYS GIVE COURAGE AND HOPES TO THE CLIENTS AND MUST TRY TO PROTECT, WITH ALL POSSIBLE EFFORTS AND SERIOUS STUDY OF THE SUBJECT MATTER OF COURT CASE.
WITH BEST REGARDS TO YOU AND YOUR FAMILY AND FRIENDS
THANKSING YOU
YOURS SINCERELY
NANDKUMAR B.SAWANT.,M.COM.LL.B.(MUMBAI),ADVOCATE
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