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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.
The enactment of ‘Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002’ has facilitated an easy mode of recovery of loan for the banks where there is a ‘Secured Asset’ and it will definitely reduce the rate of ‘Non-performing Assets (NPA)’. Non-performing Assets (NPA) effect the functioning of the banking system in India. Just because the Banks face problems in recovering the dues, the interests of the borrowers can not be compromised and they should be provided with an effective remedy when there exist a genuine grievance.
It is felt that enormous powers are conferred on Banks or Public Financial Institutions under SARFAESI Act, 2002 from the stage of determination of outstanding due, entertaining objections, taking possession of the property and selling the property through private treaty at times and in public auctions very often. The borrower too has got a right to question the illegality if any on the part of the Bank in proceeding against the ‘secured asset’ under the Act.
The Banks or Secured Creditors do feel comfortable in recovering their dues using the provisions of SARFAESI Act, 2002. The object of the enactment, as everybody knows, is to enable the Banks/Secured Creditors to reduce the level of ‘Non-performing
The object of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is to regulate Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest and for matters connected
What normally happens is that when the borrower fails to get an order of stay of proceedings by the Bank under the provisions of SARFAESI Act, 2002 under section 17 or where there is no restraint from the competent forum, the Bank will proceed with taking physical possession of the property and then proceed with auctioning the same in accordance with the provisions of the Act or the rules made there-under. As such, there can be an argument that the question of approaching the DRT again challenging the order of the Magistrate Court is illogical though the DRT is vested with the powers of restoring the possession back under the provisions of SARFAESI Act, 2002.
I strongly believe that implementing the provisions of the SARFAESI Act, 2002 making a good balance between the object and the interests of the borrower is a very complicated exercise. There are so many judgments on the provisions of the SARFAESI Act, 2002 and still certain areas remain complicated. I would like to share a typical case presented to me in the recent past and the facts of the case are as follows:
