CHECKLIST FOR ACTION UNDER SARFAESI ACT
Authorized Officer who is given the statutory power has to exercise higher degree of caution and care in following the prescription law while taking action under the Act. Taking action in any other manner than the prescription is not permissible in law. This cardinal principle is covered by Latin Maxim “expressio unius est exclusio alterius”. This is followed by Supreme Court and High Courts as can be seen from catena of judgments. The Authorised Officer may follow the check list for initiating the action. That any error or omission on the part of the authorized officer, makes the action of the bank liable to be striked down by DRT under Section 17 of the The Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002.
|Sl.N.||STAGE WISE ACTION||SUGGESTION/ADVISE|
|1||Sarfaesi Act poroceeds on the basis that borrower created security interest in favour of bank and his liability stood crystalised on account of his default and his account is classified as NPA||Sec.13(2): Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under subsection(4)|
|1||Initiation of action begins on service of demand notice||The opinion Supreme Courtin Mardia Chemicals Ltd. &Anr. Vs. Union of India &Ors.:AIR 2004 (4) SCC 311)that the demand notice is show cause is clarified by Supreme Court in (Transcore Vs. Union of India &Anr. AIR 2007 SC 712) as initiation of action|
|2||How to calculate the quantum of claim amount in the demand notice||Please ensure that, the balance outstanding in the bank’s book and the un-debited portion of interest accrued but not reflected in the bank’s book (on account of status of the loan account as NPA) are added and incorporated in the demand notice. The Authorised Officer (for short “A.O.”) need not approach any Court or Tribunal for determination of the quantum of amount of claim.
|3||Demand notice and its contents:||i). Please ensure that the demand notice covers all the details of the facilities granted to the borrower(s), dues and securities and measures to be taken in the event of default as stated in the guide and all the borrowers are addressed correctly as per the records.
ii). The Act or the Rules have not prescribed any format of demand notice.
|4||Whether action under RDDB & Fi Act 1993 or a suit/ claim already filed in civil court/drt/transferred from civil court, saves limitation for initiating action under SARFAESI Act||Action under RDDB & FI Act 1993 or a suit/claim already filed in civil court/DRT/transferred from civil court, does not save limitation for taking action under SARFAESI Act.|
|9||Whether action initiated under SARFAESI Act 2002 saves limitation for filing claim for recovery of the unrealised portion of debt.||No.|
|10||How many demand notices a secured creditor can issue||There is no bar. Any number of notices can be issued provided the security interest sought to be enforced is not barred by limitation.
|11||Res Judicata||No application. Action under the Act can be taken any number of times if the secured debt or security interest is not barred by limitation.|
|12||Service of demand notice: Please note changes in the addresses of the borrowers if any before addressing the demand notice. Change of address of borrower(s) must be obtained in writing. Oral information is not reliable as it is construed as not born out of record. Servedemand notice as contemplated in Rule 3 of Security Interest (enforcement) Rules 2002.||3(1) The service of demand notice shall be made by delivering or transmitting at the place where the borrower or his agent, empowered to accept the notice or documents on behalf of the borrower, actually and voluntarily resides or carries on business or personally works for gain, by registered post with acknowledgement due, addressed to the borrower (or his agent empowered to accept the service) or by Speed Post or by courier or by any other means of transmission of documents like fax message or electronic mail service.
|ii). Procedure where borrower avoids service of demand notice or for any reason notice could not be served.||Proviso to Rule 3(1):Where authorised officer has reason to believe that the borrower or his agent is avoiding the service of the notice or that for any other reason, the service cannot be made as aforesaid, the service shall be effected by affixing a copy of the demand notice on the outer door or some other conspicuous part of the house or building in which the borrower or his agent ordinarily resides or carries on business or personally works for gain and also by publishing the contents of the demand notice in two leading newspapers, one in vernacular language, having sufficient circulation in that locality.
Evidence of this exercise is to be reduced to writing (record panchanama).
Preserve full page of the relevant Newspapers as the same are required in evidence.
|iii) Service of notice to wife of borrower is sufficient service||If borrower’s marital relationship is not judicially separated or dissolved by order of competent court|
|iv). If borrower is abody corporate||Rule 3(2): Where the borrower is a body corporate, the demand notice shall be served on the registered office or any of the branches of such body corporate as specified under sub-rule (1).|
|v). The manner of service of any notice Rule 3(3) of S.I.(E) Rules||Rule 3(3): Any other notice [i.e. Possession notice under 13(4) of SARFAESI Act or Rule 8(6) of S.I.(E) Rules] in writing to be served on the borrower or his agent by authorised officer, shall be served in the same manner as provided in Rule 3.|
|See Sec.2 (2) of SARFAESI Act.||According to Section 2(1)(f) of SARFAESI Act “borrower” means any person who has been granted financial assistance by any bank or financial institution or who has given any guarantee or created any mortgage or pledge as security for the financial assistance granted by
any bank or financial institution and includes a person who becomes borrower of a securitisation company or reconstruction company consequent upon acquisition by it of any rights or interest of any bank or financial institution in relation to such financial assistance
According to Sec.2(2) of the Act the Words and expressions used and not defined in this Act but defined in the Indian Contract Act, 1872 (9 of 1872) or the Transfer of Property Act, 1882 (4 of 1882) or the Companies Act, 1956 (1 of 1956) or the Securities and Exchange Board of India Act, 1992 (15 of 1992) shall have the same meanings respectively assigned to them in those Acts.
|3||Inspection of secured assets||It is advisable to inspect the secured asset(s) and find out its/their status / situation.|
|4||Computation of 60 days||The date of service of the demand notice or publication of the demand notice after affixing it (as stated in the proviso to Rule 3(1) of S.I.(E) Rules) and the 60th day to be expired are to be excluded for computing the 60 days.
|5||Representation/Objection: against the demand notice Sec13 (3A).
Communication of reply is mandatory in both the events.
|After service of the notice if the borrower makes any representation or objection against the demand notice the A.O. should immediately send it to the secured creditor who in turn should send a reply or advise the A.O. to communicate reply to the borrower within “fifteen days” (recent amendment substituted for one week) of receipt of such representation or objection by registered post with AD or Courier. Evidence of communication is to be preserved for evidence.
Representation: seeking for extension of time for payment or OTS.
Objection: Challenging the validity of the demand notice on various grounds.
|6||PROCEDURE FOR TAKING POSSESSION OF MOVABLE SECURED ASSETS||Taking symbolic possession of movable secured assets is not permissible in law. Procedure for taking possession of movable secured assets is different from the procedure relating to the immovable secured assets.|
|i). In case the secured assets are movable, the A.O. has to take possession of them in the presence of two witnesses and draw a panchanama, as nearly as possible as given in Appendix-I [ See Rule 4(2) of S.I.(E) Rules]
(Evidence to be preserved).
|INVENTORY REPORT||ii). After taking possession of the movable secured assets, the A.O. has to record ‘Inventory Report’ as per Appendix–II [See Rule 4(1) of S.I.(E) Rules] and deliver it or caused to be delivered it to the borrower any person entitled to receive on behalf of borrower. In the inventory report the A.O. has to mention the name of the person appointed by him in whose custody the secured assets are preserved.|
|PRESERVATION||To take care to preserve movable secured assets which owner of ordinary prudence would take. In case of factories or stores the secured creditor has to entrust the same for custody of an authorised person or approved re-possessors / security persons.|
|INSURANCE COVER||A.O. has to take insurance cover if necessary until sale is completed. Comprehensive policy with a clause to pay the sum assured to the company which would discharge the insurance company against adverse claim of borrower if any.|
|7||CIRCUMSTANCES FOR IMMEDIATE SALE||There are two circumstances for immediate sale of movable secured assets.
1. If movable secured assets are subject to speedy or natural decay
2. or the expense of keeping such property in custody is likely to exceed its value, the authorised officer may sell them at once.
(Issue sale notice but need not wait for expiry of 30 days of the sale notice).
AO has to record reasons if necessary by drawing a panchanama in this regard.
|PLANT AND MACHINERY ATTACHED TO EARTH||Plant and machinery should be treated as part of the immovable secured asset if they are fastened to the earth with cement and concrete as on the date of taking possession. In the possession notice (Appendix-IV) the same must be mentioned specifically giving brief description of the particulars of the machinery vide separate annexure attached to it.|
|PLANT AND MACHINERY IF DETACHED FROM EARTH||If Plant and machinery are detachable from earth as on the date of taking possession then A.O. has to record ‘Inventory Report’ as per Appendix–II [See Rule 4(1) of S.I.(E) Rules] and deliver it or caused to be delivered it to the borrower any person entitled to receive on behalf of borrower. In the inventory report the A.O. has to mention the name of the person appointed by him in whose custody the secured assets are preserved.|
|VALUATION OF MOVABLE SECURED ASSETS||After taking possession under sub-rule (1) of rule 4 and in any case before sale, the authorised officer shall obtain the estimated value of the movable secured assets and thereafter, if considered necessary, fix in consultation with the secured creditor, the reserve price of the assets to he sold in realisation of the dues of the secured creditor.|
|8||REQUIREMENTS TO MOVE CMM/DMFOR ASSISTANCE||1. Application making a request to render assistance.
2. List with copies of documents.
3. Affidavit disclosing all the particulars.
|9||PROCEDURE IN CASE OF IMMOVABLE SECURED ASSETS||Take possession of immovable secured asses (whether symbolic or physical), serve possession notice (Appendix-IV) under Sec.13(4) read with Rule 8(1) and(2), obtain acknowledgment of service, affix it to secured asset and publish it in two leading newspapers(one in vernacular) having sufficient circulation in the locality.
|If borrower refuses to acknowledge service of the possession notice, then the AO may send it by registered post /courier and preserve evidence and the same may be recorded at the foot of the possession notice and obtain signature of two witnesses.|
|10||VALUATION OF IMMOVABLE SECURED ASSETS BY APPROVED VALUER
|Rule 8(5) of S.I.(E) Rules contemplates valuation of immovable secured assets by approved valuer before effecting sale.|
|11||APPROVED VALUER:||1.Registered under Sec.34AB
of Wealth Tax Act 1957
2.Approved by the Board of the
|12||RESERVE PRICE||Valuation minus 15% or 20%
See Swastic Agency Vs. State Bank of India
|13||SALE NOTICE-PERSONAL Rule 8(6)||The Authorised Officer shall serve to the borrower a notice of thirty days for sale of the immovable secured assets, under sub-rule (5)
|14||SERVICE OF SALE NOTICE||Sale notice must be served in the same manner as the demand notice and possession notice are served in the same manner as contemplated in the sub rule(1) of Rule 3 of S.I.(E) Rules 2002. See Rule 3(3) demanding the borrowers to pay the debt as demanded in the demand notice and possession notice together with interest|
|15||PUBLICATION OF SALE NOTICE||If the sale of such secured asset is being effected by either inviting tenders from the public or by holding public auction, the secured creditor shall cause a public notice in two leading newspapers one in vernacular language having sufficient circulation in the locality by setting out the terms of sale, which shall include, –
(a) the description of the immovable property to be sold, including the details of the encumbrances known to the secured creditor
(a) the description of the immovable property to be sold, including the details of the encumbrances known to the secured creditor;
(b) the secured debt for recovery of which the property is to be sold;
(c) reserve price, below which the property may not be sold;
(d) time and place of public auction or the time after which sale by any other mode shall be completed;
(e) depositing earnest money as may be stipulated by the secured creditor;
(f) any other thing which the authorised officer considers it material for a purchaser to know in order to judge the nature and value
of the property.
|16||AFFIXTURE OF SALE NOTICE||Every notice of sale shall be affixed on a conspicuous part of the immovable property and may, if the authorised officer deems it fit, put on the website of the secured creditor on the Internet.
|17||SALE BY OTHER METHODS||Sale by any methods other than public auction or public tender, shall be on such terms as may be settled between the parties in writing.|
|18||SALE CANNOT BE EFFECTED BEFORE EXPIRY OF THIRTY DAYS||No sale of immovable property under these rules shall take place before the expiry of thirty days from the date on which the public notice of sale is published in newspapers as referred to in the proviso to sub-rule (6) or notice of sale has been served to the borrower.
|19||IDENTIFICATION OF SUCCESSFUL BIDDER||A bidder who has offered highest prize shall be identified as successful bidder and he has to deposit 25% of the bid amount immediately|
|20||CONFIRMATION OF SALE BY SECURED CREDITOR||The sale shall be confirmed in favour of the purchaser who has offered the highest sale price in his bid or tender or quotation or offer to the authorised officer and shall be subject to confirmation by the secured creditor|
|21||SALE BELOW RESERVE PRIZE||No sale shall be confirmed, if the amount offered is less than the reserve price|
|22||PAYMENT BY BIDDER IN WHOSE FAVOUR THE BID IS CONFIRMED||The balance amount of purchase price payable shall be paid by the purchaser to the authorised officer on or before the fifteenth day of confirmation of sale of the immovable property or such extended period as may be agreed upon in writing between the parties.|
|23||BIDDER’S NOMINEE||Bidder cannot appoint nominee for obtaining sale certificate|
|24||FORFEITURE AND RESALE OF SECURED ASSET||In default of payment within the period mentioned in sub-rule (4), the deposit shall be forfeited and the property shall be resold and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may be subsequently sold.|
|25||CONSENT OF BORROWER||If the authorised officer fails to obtain a price higher than the reserve price, he may, with the consent of the borrower and the secured creditor effect the sale at such price.
|26||PARTIPATION OF THE BORROWER IN THE PROCESS OF SALE AS TENDERER/BIDDER||Borrower can participate as tenderer / bidder to purchase the secured asset in the process of sale|
|PARTIPATION OF THE BORROWER IN THE PROCESS OF SALE AS SPECTATOR OR WITNESS||Borrower cannot participate as spectator or witness in the process of sale|
|27||SALE CRTIFICATE||On confirmation of sale by the secured creditor and if the terms of payment have been complied with, the authorised officer exercising the power of sale shall issue a certificate of sale of the immovable property in favour of the purchaser in the Form given in Appendix V to these rules.
(Note: The sale is caused under the Act in “as it is what it is and where it is basis. Hence the S.I.(E) Rules devised the sale certificate. Sale Certificate does not contain any indemnity clause as in case of sale deed and the rule “sans recourse” is not applicable to the sale i.e. the secured creditor is not answerable for any defects in the title to the secured asset sold). The sale certificate shall be the prima facie evidence of title of the purchaser
|28||ENCUMBERANCES||The purchaser has to deposit the encumbrances if any in respect of the secured asset sold. Where the immovable property sold is subject to any encumbrances, the authorised officer may, if he thinks fit, allow the purchaser to deposit with him the money required to discharge the encumbrances and any interest due thereon together with such additional amount that may be sufficient to meet the contingencies or further cost, expenses and interest as may be determined by him.|
|29||NOTICE TO PERSONS INTERESTED IN THE AMOUNT OF (CROWN DEBTS) ENCUMBRANCES||On such deposit of money for discharge of the encumbrances, the authorised officer shall issue notices to the persons interested in or entitled to the money deposited with him and take steps to make, the payment accordingly|
|30||NON PRIORITY DUES||The following are not crown debts:
2.Custom & Excise Duty
3.Income Tax dues prior to creation of mortgage
|31||PAMENT OF SURPLUS TO THE PURCHASER||Provided that if after meeting the cost of removing encumbrances and contingencies there is any surplus available out of money deposited by the purchaser such surplus shall be paid to the purchaser within fifteen day, from date of finalisation of the sale.|