Ozg Sarfaesi / DRT Lawyer
Ahmedabad | Pune | Kolkata | Bangalore | Delhi | Mumbai
VoIP Text / Phone # 09811415837-61-72-84-92-94
Website: http://sarfaesi.ozg.in
Email: debt@liaisoning.com
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 Assets (NPA)’. In the absence of a special legislation like ‘Recovery of Debts due to Banks and Financial Institutions Act, 1993’ and “Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002”, it is infact very difficult for the Banks to recover debts approaching Civil Courts. The observation of Hon’ble Madras High Court in The Repatriates Co-op Finance & Development Bank Ltd., Chennai & Others, 2010 (4) LW 497, 2010 (5) CTC 449, 2010 (7) MLJ 882,on the plight of Banks in recovering their dues from the borrower through Civil Courts, is as follows:
“3. For getting a decree in usual course before a Civil Court Civil Court Execution Court Civil Court
The primary objective of the Banks/Secured Creditor should be to deal with the defaulters and not to harass the borrowers using the provisions of SARFAESI Act, 2002. The borrower very often raises a grievance that they are not willful defaulters and the Bank or Bank Officials are harassing them. But, the Bank says that they follow the guidelines issued by the Reserve Bank of India India
M/s. Signal Apparels Pvt. Ltd. & Another Vs. Canara Bank P.N. Road Branch, Tirupur & Another, 2010 (5) CTC 337, 2010 (8) MLJ 967, was pleased to observe as follows:
“16. To put it precisely, for invocation of provision of Section 13(2) of the Act, the declaration of an asset or account to be a non-performing asset is a condition precedent. In the event such declaration is not in accordance with the R.B.I. guidelines and the account of a borrower is a performing account, Section 13(2) may not be pressed into service; as such account cannot be brought under Section 2(o) of the Act. Equally, going by the scheme of the Act, the discretion conferred on the bank to declare an asset to be a non-performing asset is in order to tackle the issue of increase of non-performing asset to high level. That is why; the legislature had left the discretion to the bank while declaring a debt as a non-performing asset, qualifying such bank to follow the directions or guidelines issued by the Reserve Bank of India while classifying the assets to be sub-standard, doubtful or loss assets to be known as non-performing assets. This discretion is on national policy and all that requires for the secured creditor is to exercise the discretion judicially. In the wake of the right of the secured creditor to declare a debt as a non-performing asset, to show the application of mind for such declaration, it may indicate the reasons thereof in the notice under Section 13(2) and the Section does not contemplate that in all cases such reasons should be indicated in the notice. The application of mind could be culled out from the materials that were existed on the date of such declaration.”
On the same issue of classification of Account as ‘NPA’ by the Bank before proceeding against the borrower under the provisions of SARFAESI Act, 2002, the Hon’ble Andhra Pradesh High Court, inM/s. Sri Srinivasa Rice and Floor Mill Vs. The Authorised Officer, State Bank of India
“There is, as considered earlier in the judgment no statutory format, express or by necessary implication, that requires the respondent bank to follow a particular or formal procedure or requires a formal declaration as a condition precedent to classification of debt as NPA. From the scheme of the Act in general and the provisions of Sec.13 (2) in particular, the conclusion is compelling that the legislature has consecrated the power, authority and discretion (to classify a debt as a NPA) to the secured creditor within the generic guidelines to be ascertained from the definition of a non performing asset [Sec.2 (o)]. A wide margin of discretion is available to the respondent bank as the secured creditor, within the legislative presents of the Act, to assess and classify a debt but within the legislative framework. This Court is not constituted an appellate authority over the bank’s exercise of discretion in this area. The respondent bank, as legislatively recognized is an institution having the requisite expertise to form a commercial judgment on known principles of banking practices and procedures fertilized by R.B.I directions and guidelines to assess and classify a debt as NPA. From the wealth of material pleaded in the counter-affidavit the bank had assessed the debt as non-performing asset. On facts, the petitioners have miserably failed to establish that such assessment by the bank is perverse or irrational to a degree warranting oversight and correction in judicial review.”
Conclusion: The issue is really complicated. If it is a case where the Bank has ignored the guidelines issued by the Reserve Bank of India
Ozg Sarfaesi / DRT Lawyer
Ahmedabad | Pune | Kolkata | Bangalore | Delhi | Mumbai
VoIP Text / Phone # 09811415837-61-72-84-92-94
Website: http://sarfaesi.ozg.in
Email: debt@liaisoning.com
