How to get stay order of property possession taken by NBFC
4 weeks ago
Hello,
I have a loan from an NBFC ..
total pending - 92 lacs
Total EMI overdue - 8.5 lacs
For non payment of above EMI, the NBFC got a court order and has taken possession of my home. I was having some cash issues and so couldn’t pay for 4-5 months. When bank people came with notices first two times, I had informed them that I’m selling another land of mine and plz allow me more time.. one day after my house possession was taken over, I had the registration slot for selling my other land.
Coming to the point, on day of handover of possession, I requested bank ppl a lot and told them I’m ready to clear 1/3 of my loan that very Instant since I had received advance for my land deal, but they refused and very bluntly made us vacate our house and took possession.
I’m ready to pay 1/3 amount from the 92 lacs immediately and want to file an application in DRT for getting a stay order on the possession of my property and get the possession back asap!
Is this possible?
What are my other options??
As of today I cannot pay the entire 92 lacs in one go but I want possession of my property back asap!
Maximum I can pay upto 50% if required immediately.
Since it’s an NBFC and not a bank, will there be different rules?
I’m not sure if the procedure they followed also is completely legal, and that they followed the entire process correctly before taking up the possession, but I don’t want to waste time fighting that. I’m ready to pay up, what’s my solution?
And if I file a petition in DRT tomorrow, can I expect a stay order on same day and get possession back immediately ??
Sub-section (3A) of Section 13 of the SARFAESI Act, introduced in 2004, allows borrowers to make representations or objections regarding notices issued under subsection (2). Creditors must consider such representations and communicate reasons for non-acceptance within fifteen days. The Delhi High Court, referencing the Supreme Court's judgment in ITC Limited v. Blue Coast Hotels Ltd., affirmed the mandatory nature of Section 13(3A), emphasizing that creditors must consider borrower objections before taking possession of secured assets under Section 13(4). Aggrieved parties can challenge creditor measures under Section 13(4) before the Debts Recovery Tribunal (DRT) by filing a Securitization Application (SA) within 45 days. The DRT must dispose of the SA within sixty days, with a four-month extension possible upon recorded reasons. Failure to do so permits parties to apply to the Debts Recovery Appellate Tribunal (DRAT) for expedited disposal.
Sub-section (3A) of Section 13 of the SARFAESI Act was introduced by way of an amendment in the year 2004 whereby (3A) the borrower is allowed to make representation or raise an objection concerning the notice issued under subsection (2). A further duty is imposed on the creditor to consider such representation/objection and if the creditor concludes that such representation or objection is meritless, he shall communicate within fifteen days of receipt of such representation or objection the reasons for non-acceptance of the representation or objection to the borrower. The Delhi High Court discussed the facts and ratio of the judgment of the Supreme Court in ITC Limited v. Blue Coast Hotels Ltd. & Ors.: 2018 SCC OnLine SC 237, which was the basis of the entire case of the petitioner. It was held by the Court that undoubtedly, the provisions of Section 13(3A) of the SARFAESI Act are mandatory and the lender must consider the representation/objection made by the borrower in response to the notice issued under Section 13(2) of the SARFAESI Act. The Delhi High Court observed that the intention of the Legislature in introducing sub-section (3A) is to ensure that objection/representation of a borrower against any action for enforcement of security interest is considered before a creditor proceeds to take possession of the secured assets in terms of Section 13(4) of the SARFAESI Act. The Court opined that bearing the aforesaid object in mind, it became at once clear that the creditor/Bank must consider the objection and representation furnished by the borrower before resorting to any action under Section 13(4) of the SARFAESI Act. Any person who is aggrieved by any of the measures taken under Section 13(4) by the secured creditor, can challenge the same before Debts Recovery Tribunal (DRT) by filing a Securitization Application (SA) under Section 17(1) of the SARFAESI Act within 45 days from the date of taking such measure by the secured creditor. Further, Section 17(5) casts an obligation on the DRT to deal with the SA filed under Section 17(1) as expeditiously as possible and dispose it of within sixty days from the date of such SA. The proviso to Section 17(5) empowers the DRT to extend the said period for a maximum period of four months from the date of making such SA. Pertinently, the DRT is required to record its reasons in writing for extending such a period. Section 17(6) further states that if the DRT fails to dispose of the said SA within four months, then any party to the SA may apply to the Debts Recovery Appellate Tribunal (DRAT) for expeditious disposal of the said SA. So, in the given scenario, you need to consult with an Advocate handling DRT matters to take the necessary steps ASAP to obtain a stay order from DRT.
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