Note: This blog only provides the views on the complicated issues under the Recovery Laws in India and no part of publication be reproduced or used without the expression persmission from the author and the views can not be taken as authoritative.

2/25/11

DRT & SARFAESI: Limitation to proceed under section 13 (2) and 13 (4) of SARFAESI Act, 2002?

Despite the clear objective behind enacting SARFAESI Act, 2002, while implementing the provisions of the Act, many complications have arisen and the Hon’ble Courts have cleared some complications making a good balance between the interests of the borrowers and the objective of Act to reduce the alarming levels of Non-performing Assets (NPA). Courts have dealt with the issue of limitation to approach the Debt Recovery Tribunal under section 17 of SARFAESI Act, 2002 and according me, it is the wonderful interpretation by Courts in giving the borrower a right to challenge the Bank’s action on all measures pursuant to section 13 (4) of the Act. In the recent past, there was also a consistency with regard to entertaining Writ Petitions under Article 226 of Constitution of India in respect of SARFAESI matters. The borrowers’ interest is also protected even at the stage when the Bank approaches the Magistrate Court under section 14 of the Act and gets an order to take the physical possession of the ‘secured asset’. Though there is a tendency of discouraging the Civil Courts in entertaining Civil Suits in respect of SARFAESI proceedings given the limited scope pursuant to Mardia Chemicals case, it is important to look at the issue of making a counter claim in the form of damages or compensation against the Bank. It is true that section 19 of the SARFAESI Act, 2002 provides an authority to the Debt Recovery Tribunal to order compensation against the Bank in appropriate cases. The interpretation of section 19 would definitely be a key thing. The compensation can not be limited to the issue of procedural lacunae on the part of the Bank in taking steps under the provisions of SARFAESI Act, 2002. In appropriate cases, the claim of compensation or the damages can also be looked at while entertaining a plea for granting stay of SARFAESI proceedings initiated by the Bank. It is supported by the laudable interpretation by the Court on the issue of powers granted to the Debt Recovery Tribunal under section 17 of SARFAESI Act, 2002. It was once perceived that the Debt Recovery Tribunal is only concerned at looking the procedure followed by the Bank under SARFAESI Act, 2002, but, now the DRT is looking at all issues raised by the borrower including the issue of determination of ‘outstanding due’ and classification of an Account as ‘NPA’. There can be an argument that the if the scope of Section 19 is widened, then, the DRT may not be able to speedily dispose of the Appeals and may be forced to keep the order of stay pending till the litigation is finally disposed of. This argument, though appear to be logical, can not be sustained as the Courts are against conferring jurisdiction on other forums in respect of SARFAESI matters. This issue can be addressed with the careful exercise of power and the efficiency of the presiding officers on Civil Law and Law of Torts.

Likewise, there are many interesting and complicated issues under the provisions of SARFAESI Act, 2002. Another complicated issue is about Section 36 of SARFAESI Act, 2002 dealing with the application of the provisions of Law of Limitation. Section 36 of SARFAESI Act, 2002 is as follows:

“36.Limitation.- No secured creditor shall be entitled to take all or any of the measures under sub-section (4) of section 13, unless his claim in respect of the financial asset is made within the period of limitation prescribed under the Limitation Act, 1963 (36 of 1963).”

In the light of the fact where the Bank proceeds under SARFAESI Act, 2002 even after obtaining a ‘Recovery Certificate’ from the Debt Recovery Tribunal under Section 19 of RDDBI Act, 2002, section 36 of SARFAESI Act, 2002 is to be carefully looked at. The issue of simultaneous proceedings was upheld now and I don’t know to how to understand the land-mark judgment saying that the Bank need not withdraw its Original Application under section 19 of RDDBI Act, 1993 while contemplating action under SARFAESI Act, 2002. But, it is a fact that the Bank may feel comfortable in invoking the provisions of SARFAESI Act, 2002 for execution of its claim even after getting a ‘Certificate of Recovery’ under section 19 of RDDBI Act, 1993. Where there is a mortgage in favour of the Bank, the limitation to act upon the mortgage in realizing the debt is 12 years. And the 12 years limitation is to be calculated from the date when the money actually becomes due as per the provisions of Limitation Act as everybody knows. In many cases now, if the limitation is strictly applied as contemplated under Section 36 of the SARFAESI Act, 2002, the Banks may not be able invoke the provisions of the SARFAESI Act, 2002 as it could have taken considerable time in getting the ‘Certificate of Recovery’ in Original Application under Section 19 of RDDBI Act, 1993. What the Bank claims is that the limitation under Section 36 starts from the date of passing the ‘Certificate of Recovery or the decree’. On the contrary, the borrowers claim that the proceedings under RDDBI Act, 1993 and SARFAESI are completely independent though they can go simultaneously now and as such the limitation under Section 36 is to be calculated separately based on the loan transaction and default while Bank proceeding under the provisions of SARFAESI Act, 2002. There is a merit technically in this argument also as the Bank will not straight-away proceed taking possession of ‘secured asset’ where there is already a ‘Certificate of Recovery’. Even when there is a ‘Certificate of Recovery’, the Bank, if wants to invoke the provisions of SARFAESI Act, 2002, makes a fresh demand under section 13 (2), entertains objections, gives a reply if required and then only proceeds under section 13 (4) of the Act and the borrower gets a right to appeal to DRT under Section 17 of SARFAESI Act, 2002 again though there was a prior adjudication of the issue earlier under RDDBI Act, 2002. This aspect is highlighted technically and the Courts have considered the ‘Decree or the Certificate of Recovery’ as ‘debt’ or ‘financial asset’ within the purview of SARFAESI Act, 2002 and allowed the Bank to be in advantageous position in this regard. Though there were conflicting views on this like the issue of redressel against the order passed by the Magistrate under section 14 of SARFAESI Act, 2002, a consistent view is now being taken in this regard.

Few judgments extracted below will expose the trend in interpreting section 36 of SARFAESI Act, 2002 and the Complications. The Hon’ble High Court of Punjab and Haryana, in Raj Rani Versus Oriental Bank of Commerce, 2008 AIR (P&H) 66, was pleased to observe as follows:

“In the present case, the loan was availed on 23-10-1999 (P-10) and notice under Section 13 (2) of the Act was given on 28-4-2003. It is undisputed that the loan has been secured by mortgaging the properly in question as is evident from the loan application (P-7). Once the loan has been secured by mortgage or by creating a charge on immovable property in question, the provisions of Article 62 of the schedule appended to the Limitation Act, 1963 would apply which provides a period of 12 years from the date when the money becomes due. The respondent-Bank had issued notice under Section 13 (2) of the Act in April, 2003, which is less than four years. It is thus obvious that action even otherwise does not attract the bar of limitation. Therefore, the argument raised is liable to be rejected. Even on facts, it has to be held that the action does not suffer from the bar of limitation provided by Section 36 of the Act.

On the same issue, the Hon’ble High Court of Madras in M/s. Consolidated Construction Consortium Ltd Vs. M/s. Indian Bank, 2010 AIR (Mad) 68 was pleased to observe as follows:

“33. I could see considerable force in the submission made by the learned counsel for the defendant for the following reasons.

The term ‘debt’ as defined in the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is found adopted in the SARFAESI Act.

“S.2(g) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993:

“debt” means any liability (inclusive of interest) which is claimed as due from any person by a bank or a financial institution or by a consortium of banks or financial institutions during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or assigned, or whether payable under a decree or order of any civil Court or any arbitration award or otherwise or under a mortgage and subsisting on, and legally recoverable on, the date of the application.

34. A plain reading of the definition of the ‘debt’ as contained in the The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 would exemplify and demonstrate that given a ‘decree debt’ could be taken as a ‘debt’. It is quite obvious and axiomatic that for obtaining decree, considerable time would be taken by a litigant and in some cases, it might exceed even ten years or fifteen years and in such a case, if twelve years period of limitation for enforcing mortgage is calculated from the date of accrual of the cause of action based on mortgage due under the bank, then the relevant portion of the definition of ‘debt’, as contemplated under the ‘The Recovery of Debts Due to Banks and Financial Institutions Act, 1993’ as well as SARFAESI Act would be rendered nugatory or otiose. It is therefore crystal clear that the twelve years’ limitation period has to be reckoned from the date of decree or the debt recovery certificate issued by the Tribunal. The question might arise as to whether the provisions of the SARFAESI Act, so to say Section 13(4) could be pressed into service for the purpose of executing a decree debt or the certificate issued under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.

38. A plain reading of the above definition would reveal and connote that the term ‘financial asset’ includes debt and thereby the definition as contained in Section 2(g) of the ‘The Recovery of Debts Due to Banks and Financial Institutions Act, 1993’ is ushered in. As such, the phrase ‘financial asset’ and the term ‘debt’ including ‘secured debt’ are all interlinked and interwoven, interconnected and entwined with one another like a cobweb and the term ‘debt’ envisages the ‘decree debt’ as well as the ‘debt recovery certificate.’

39. The learned Senior counsel for the plaintiff also by inviting the attention of this Court to sub-sections (1) and (2) of Section 13 of the Act would develop his argument that unless sub-sections (1) and (2) of Section 13 are attracted, the question of invoking Section 13(4) does not arise and accordingly if viewed, the debt recovery certificate cannot be taken as one contemplated under sub-section (1) or (2) of Section 13.

40. I am of the considered opinion that Section 13(4) as well as sub-sections (1) and (2) of Section 13 are widely worded to include even mortgage debts, which got crystallised in the form of a decree or debt recovery certificate. No doubt, the term ‘debt recovery certificate’ is not contemplated in the definition as contained under Section 2(g) of the ‘The Recovery of Debts Due to Banks and Financial Institutions Act, 1993’. But still, the clause, ‘whether payable under a decree or order of any civil Court or any arbitration award or otherwise or under a mortgage and subsisting on, and legally recoverable on, the date of the application’ would amply make the point clear that the said clause is wide enough to include even the debt recovery certificate. Accordingly, if viewed it is clear that ex facie and prima facie the notice issued under Section 13(4) of the SARFAESI Act on 27-7-2009 cannot be held to be one barred by limitation.”

I am sure that the complications under section 36 of SARFAESI Act, 2002 are temporary in nature and rarely discussed now as the Banks could have completed their recovery in the cases those were pending before 2002 by now.

Note: the views expressed are my personal and a view point only.

17 comments:

  1. Sir I am a borrower (Ltd Company) and a Co-operative bank has issued a notice under 13(2) on 12.10.2011. NPA date is 30-6-1995. Dispute filed under on 15.3.1999 (Final Notice issued on 31/12/1994) is pending at MCS Act 1960 co-operative court Mumbai. Mortgage and Hypothecation deed dated 2.11.1994 and 18.10.1993 respectively.

    Is this notice time barred? What must the borrower reply or appeal to?
    Thanks
    Regards
    Vinod Agarwal
    1961106@gmail.com
    Mumbai

    ReplyDelete
  2. I AM ONE OF THE SHARE HOLDER/ DIRECTOR OF A PVT. LTD.COMPANY. MY MOTHER MORTGAGED PROPERTY TO THE BANK TO SECURE THE LOAN. SHE EXPIRED IN 13/03/1998. TH A/C BECAME NPA IN YEAR SEPT.2000. THE MATTER OF DEATH WAS IN RECORD OF THE BANK. EVEN THEN THE BANK DID NOT GOT DOCUMENTS SIGNED FROM THE LEGAL HEIRS. NOW IN MARCH.2013 THE BANK INITIATED PROCEEDING. PLEASE ADVISE THE CALCULATION OF LIMITATION PERIOD.
    REGARD
    RUPINDER
    rupinder205@rediffmail.com

    ReplyDelete
  3. @Rupinder
    Under Maharashtra Cooperative Societies Act, limitation is 6 years after death of its member. So after death of your M-I-L, they should have started it within 6 years. Now it is time barred. (provided whatever you say is true and there is nothing else) hope it helps you.
    walimbe.bhushan@gmail.com

    ReplyDelete
    Replies
    1. THANK YOU VERY MUCH FOR GIVING ME VALUABLE INFORMATION. SIR, I HAVE ONE MORE QUERY WHICH IS AS UNDER
      MYSELF, MY MOTHER AND FATHER HAVE GIVEN PERSONNEL GUARANTEE TO OBTAIN THE LOAN FOR THE COMPANY.WE WERE THE MAJORITY SHAREHOLDERS. LATER ON A MAJOR DISPUTE AMONG THE DIRECTORS ERUPT.THEY INCREASED THE SHARE CAPITAL AND THEIR SHARE UNILATERALLY. WE CHALLENGED THEIR ACT IN THE COURT. WE INFORMED/ HIGHLIGHTED THE BANK ABOUT THE DISPUTE AS SOON AS IT ERUPTED. WE INFORMED THE BANK THAT PLEASE DO NOT ENHANCE ANY FURTHER FACILITY AS LONG AS DISPUTE IS THERE. EVEN WE INFORMED THAT IF BANK WILL IGNORE OUR REQUEST THEN ONLY BANK WILL BE RESPONSIBLE OF ITS DOING.BY IGNORING OUR REQUEST THE BANK INCREASED THE FACILITES FURTHER. THE A/C BECAME AFTER SOME TIME. BANK DID NOT GOT EXECUTED FRESH DOCUMENTS OF GUARANTEE FROM US.THE BANK OBTAINED FRESH DOCUMENTS FROM OTHERS FOR TOTAL LOAN AMOUNT.ALTHOUGH THIS WAS PART OF SANCTION TO GET THE FRESH DOCUMENT FROM ALL OF US. THE BANK DISBURSED THE AMOUNT WITHOUT COMPLIANCE OF SANCTION CONDITIONS. NOW BANK HAS FILED A CASE IN DRT AND ASKING US THAT WE ARE LIABLE FOR ALL THE AMOUNT.WE ARE ASKING THE BANK TO FREEZE OUR LIABILITY AS WHATSOEVER BANK HAS DONE THIS WAS BANK'S RESPONSIBILITY AS WE WARNED WELL IN TIME THAT MANAGEMENT HAS GONE IN WRONG HANDS AND FUNDS ARE BEING DIVERTED. EACH AND EVERY LETTER TO THE BANK IS DULY ACKNOWLEDGED. PLEASE GUIDE US BUT WE SHOULD DO.

      Delete
    2. i further want to add that not only we have given PERSONAL GUARANTEE BUT HAVE ALSO MORTGAGED OUR ASSETS. NOW BANK IS AFTER OUR PROPERTIES WITHOUT TELLING US OUR LIABILITY.WHAT TO DO.THE BANK ITSELF HAS DONE WRONG AND NOW IS AFTER OUR PROPERTIES UNDER SURFAESI ACT. PLEASE GUIDE.

      Delete
  4. Sir, May I seek your valued opinion in a matter as follows: 1) A Ltd Company takes loan against stock in 1976, 2) The Directors are guarantors and a personal property is pledged as collateral security 3) The Bank moves high court gets a decree in 1984 against the company as well as Directors (guarantors) but the same court sets aside the decree against guarantors. In 1998 the Bank moves in DRT and the matter is still pending in DRT 4) In 2013 the bank gives notice to Guarantors under SARFAESI Act, and proceeds with proceedings to Take possession. Sir is SARFAESI Act is applicable even when the matter is in DRT ? Is the bank not barred by law of Limitation ?

    ReplyDelete
  5. Sir,
    How Much is the limitation period for filing an application under section 14 of sarfaesi act?

    ReplyDelete
  6. sir my property is a lease hold property which was my mothers name then by trasfer to our legal hairs name . but my mother not created registered mortgage to bank as 58 (f) 1882 act it is necessory. bank can take action sarfecii act on eqtable mortgage of this property.

    ReplyDelete
  7. Sir sarfaesi act loan amount limit

    ReplyDelete
  8. The blog that you shared about DRT & SARFAESI Act & the Law is very good.The information V.D.RAO shared is useful for me. For more information Visit My site:- DRT

    ReplyDelete
  9. A friend of mine gave a personal guarantee to a bank for a Limited Company which has already gone into Liquidation.
    Judgement has been passed against him 12 years back for simultaneously recovery of personal guarantee.
    Two years back they sold the collateral property also for more than the Principal amount.
    Can they proceed against him now for recovery of personal guarantee

    ReplyDelete
  10. A friend of mine gave a personal guarantee to a bank for a Limited Company which has already gone into Liquidation.
    Judgement has been passed against him 12 years back for simultaneously recovery of personal guarantee.
    Two years back they sold the collateral property also for more than the Principal amount.
    Can they proceed against him now for recovery of personal guarantee

    ReplyDelete
  11. Sir i had availed loan of Rs.7.90 lacs from a pvt bank (home finance) by pledging my property documents. I received notice from the bank in May 2015 for not updating my EMI, pursuant to which i have made three payments 1st in May-15, 2nd July-15 & after which 3rd payment in Feb-16 which updated my EMI' till the date of 3rd payment. In the meanwhile bankers issued another notice dt Jan-16 for seizure of property. The bankers initiated the proceedings with ACMM, Blore in Dec-15 & got orders for taking possession of the property in Jan-16.
    Further they have issued notice to the tenants of my property under SARFAESI Act on 15.05.2016 & now my tenants have filed a writ at High court, Blore against the said notice from the bankers. Now my total dues with the bank as on date is approx.8.00 lacs. Please guide as to how do i clear the issue & what is the maximum time i can get to come out of this. I am a single income earning member & do not even have the affordability to approach a lawyer to help me out. Also after their notice i have paid Rs.1.07 lacs in the 3rd payment dt.15.02.2016. What will be my status. The tenants have paid me rent in the month of May-16 for Apr-16. Now will they pay rent for month of May-16 in June-16. The rent i am getting is a very essential earning. Please guide through & help me to get out of this issue.

    ReplyDelete
  12. sir,
    i need your valuable opininon for my query,
    i have availed od in 1989 for Rs. 50000/- from cooparative bank at hyderabad.by providing FDR in my father name for Rs.30000/-and the collateral property. due to some financial circumstances i closed my propreitor firm in 1990.and informed the bank to close my account by underatking the FDR and sell the collateral property and let me know the proceeds of property As it was much higher than the loan amount.But due to the death of my father and several other family issues i never turned to the bank to know the status and also bank never approached in the matter.now in 2001 bank was in liquadation and the liquadator issued the notice to pay the amount alongwith the interest.i approaced the liquadator stating the facts, but without considering my plea passed the arbitartion award.then i approached to the tribunal and appealed to set aside the award passed. by hearing all the facts honourable tribunal allowed my appeal stating that bank had passed the impulgned, improper award as per the evidences and hence appeal is allowed and directed the bank to fresh procced with proper legalities, in 2006.
    but therafter nor bank or liquadator made any approach or any legal procedure till the current month of 2016.
    now the loan incharge of the bank came to my house and asked to pay the loan amount and threatened my wife in my absence.
    shall it is possible for the bank or its representatives to do so, will they have powers to again filed the matter before any authority after the my appeal allowed by tribunal 10 years back.
    i am confused what to do i am in private service with a limited earnings.i hope you provide your opinion at the earliest and guide me

    ReplyDelete

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    ReplyDelete
  14. Sir,
    The bank has not taken possession of the property since notice under section 13 (2) served in the year 2009. The notice under section 13 (4) has also never been served but symbolic possession was taken thereafter. In the year 2014 the bank restructured the loan but did not comply the restructuring sanction. Now at present the bank has moved an application before the DM for taking possession.status quo order was also passed by civil court in 2010 and no order regarding vacate order of the same has been passed till date.
    How can i stop the bank from taking physical possession of the property

    ReplyDelete