Under the SARFAESI Act, where a borrower defaults in repayment of a secured debt and the account is classified as a Non-The procedure under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act).
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Under the SARFAESI Act, where a borrower defaults in repayment of a secured debt and the account is classified as a Non-The procedure under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) provides a statutory framework enabling secured creditors, including banks and financial institutions, to enforce their security interests without the intervention of courts or tribunals, subject to strict compliance with the provisions of the Act and the rules framed thereunder.Performing Asset (NPA) in accordance with the applicable guidelines, the secured creditor is entitled to initiate recovery proceedings by issuing a demand notice under Section 13(2), calling upon the borrower to discharge the outstanding liability within a period of 60 days from the date of the notice.
If the borrower fails to comply with the demand notice within the stipulated period, the secured creditor may exercise the rights conferred under Section 13(4) of the Act, which include:
The borrower has the right to make representations or raise objections to the demand notice under Section 13(2), which the secured creditor is obligated to consider and dispose of by passing a reasoned communication in accordance with law.
In cases where the secured creditor encounters resistance in taking possession of the secured assets, it may seek assistance from the District Magistrate or the Chief Metropolitan Magistrate under Section 14 of the Act, who is empowered to take necessary steps to assist in securing possession of such assets.
Any person aggrieved by the measures taken by the secured creditor under Section 13(4) has the statutory right to prefer an application before the Debts Recovery Tribunal (DRT) under Section 17 of the Act within the prescribed period of limitation.
In the context of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), it is pertinent to note that the SARFAESI Act operates as a special legislation providing an independent and self-contained mechanism for enforcement of security interests. However, the provisions of BNSS may be invoked in situations involving criminal liability, such as cases of fraud, dishonest misappropriation, wilful default accompanied by criminal intent, or obstruction in the enforcement process. In such circumstances, matters relating to investigation, prosecution, and trial are governed by BNSS, whereas the civil enforcement and recovery of secured debts continue to be governed exclusively by the SARFAESI Act.
Thus, the SARFAESI Act, 2002 functions as a comprehensive code for the enforcement of secured debts, with the procedural framework of BNSS, 2023 operating in a supplementary capacity in cases involving criminal elements.
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