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SARFAESI proceedings against the co-owner of the property

By: Shivendra Pratap Singh
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SARFAESI proceedings against the co-owner of the property. I am currently fighting Divorce (since 2016) & DV (since 2017) cases in separate courts. We also have a flat in joint ownership (purchased in 2014 and I am the 1st owner) which is in his custody. In Oct 2018, I stopped paying my share of EMI in a joint account, since even after repeated requests he denied me access to the flat and threatened me. Ever since I stopped paying my share of EMI, I started receiving recovery calls for the loan EMI, society maintenance, electricity bill (which has only his name on it) and also recovery of his credit cards. 

I had already informed the bank’s loan dept. in 2019 (in writing) about both ongoing cases and also provided my number and email ID for further communications. Just last month (Nov 21), I received a call from the bank recovery dept and they informed me about the notices sent for nonpayment of EMI and that even the court would serve notice. 

I informed them that I did not receive any notice from the bank or the court pertaining to the flat. I asked them to email me the copies as I was not aware about it. I received the following documents: 1) Demand Notice under Sec 13(2); dated 6-11-2019. 2) Possession Notice; dated: 12-2-2020. 3) Foreclosure letter & 4) Account statement. It is a joint loan taken for the flat where my husband is the 1st applicant and I am the co-applicant. 

He has put up his hand stating he is jobless since 2017 and asked me to provide him maintenance. He is not even paying maintenance towards the child, even after the MM court passed an order on the same in 2018. Arrears for the same have reached Rs.3.5 lakhs. Please advise what can be done pertaining to the property? I am going through a lot of mental and financial stress. This flat is my only hope to recover something. 

Question from: Maharashtra

You have defaulted in repayment of loan amount. Therefore, the bank has the right to initiate proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [SARFAESI Act]. You should initiate proceedings with the bank for the settlement of the loan. The bank can settle the loan in a few installments. 

In this situation you have to discharge your financial liability and start the repayment of the loan. You are a joint owner of this property hence, your responsibility cannot be absolved because there is matrimonial acrimony between co-owners. This is an exclusive affair than the matrimonial disputes. 

You should file an application before the Debt Recovery Tribunal (DRT) for extension of time and stay of the proceedings. You did not receive the notice issued under Section 13 of SARFAESI Act. Hence, you must have a reasonable opportunity to reply to that notice. Giving fair opportunity to reply to notice is the principle of natural justice.

The DRT may stay the proceeding and give you an opportunity to reply to the notice. In the replay, you can show your hardship in the repayment of the loan. If you are willing to discharge your liability and start repayment of the loan then the bank may convert the outstanding amount to be paid in some installments.  

So far as maintenance case is concerned, you can move an application under Section 128 of the code of criminal procedure (crpc) for the enforcement of order of maintenance. Husband is bound to maintain his wife and children even if he is jobless.

There is no period of limitation under Section 128 crpc for the enforcement of maintenance order. Hence, you can move an application even after three years of passing the order of maintenance. 

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