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The full form of SARFAESI Act as we know is Securitisation and Reconstruction of Financial
Assets and Enforcementof Security Interest Act, 2002. Banks utilie this act as an effecti!e tool
for "ad loans #$%A& reco!ery. It is 'ossi"lewhere non('erformin) assets are "acked "y securities
char)ed to the Bank "y way ofhy'othecation or mort)a)e or assi)nment.
Upon loan default, banks can seize the securities (except agricultural land)
SARFAESI is eecti!e
"here bank can enforce theunderl#ingsecurit# egh#pothecation, pledge and $ortgages% In such
cases,
Contents
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*ow it works+
The SARFAESI Act, 2002 )i!es 'owers of seie and desist- to "anks. Banks can )i!e a
notice in writin) to thedefaultin) "orrower reuirin) it to dischar)e itslia"ilities within /0 days. If
the "orrower fails to com'ly with the notice,the Bank may take recourse to one or more of
the followin) measures
re)ulated "yRBI to acuire assets from "anks and financial institutions. The Act 'ro!ides for sale
of financial assets "y "anks andfinancial institutions to asset reconstruction com'anies #AR1s&.
RBI has issued )uidelines to "anks on the 'rocess to"e followed for sales of financial assets to
AR1s.
The 're!ious le)islation enacted for reco!ery of the default loans was
!arsim"am Committee #$
were su"mitted to the )o!ernment. This act had created the forums such as
for e'editious ad3udication of dis'utes with re)ard to e!er increasin) non(reco!ereddues. *owe!
er, there were se!eral loo'holes in the act and these loo'holes were mis(used "y the "orrowers as
wellas the lawyers. This led to the )o!ernment intros'ect the act and this another committee under
&r' And"yaruina
wasa''ointed to eamine "ankin) sector reforms and consideration to chan)es in the le)al
system .
Thus, !ia the Sarfaesi act, for the first time, the secured creditors were em'owered to reco!er their
dues without theinter!ention of the court.
&o"e!er, as soon as the act "as passed, its i$ple$entation "as challenged in the court
and thisdela#ed its co$ing into force for . #ears% In the
, the Supre$e /ourtupheld the !alidit# of the SARFAESI act "as upheld%
Ri)hts of Borrowers
The a"o!e o"ser!ations make it clear that the SAFAESI act was a"le to 'ro!ide the effecti!e
measures to the securedcreditors to reco!er their lon) standin) dues from the $on 'erformin)
assets, yet the ri)hts of the "orrowers could not"e i)nored, and ha!e "een duly incor'orated in the
law.
+he borro"ers can at an# ti$e before the sale is concluded, re$it the dues and a!oid loosing
thesecurit#%
In case an# unhealth#0illegal act is done b# the Authorised 12cer, he "ill be liable for
penalconse'uences%
For redressing the grie!ances, the borro"ers can approach rstl# the 3R+ and thereafter
the3RA+ in appeal% +he li$itation period is 45 da#s and 67 da#s respecti!el#
%re(conditions
The Act sti'ulates four conditions for enforcin) the ri)hts "y a creditor.
+he outstanding dues are one lakh and abo!e and $ore than .79 of the principal loan a$ountand
interest there on%
•
+he securit# to be enforced is not an Agricultural land%
4ethods of Reco!ery
Securitisation:
Securitisation is the process of issuing $arketable securities backed b# a pool of existing assets
such as auto or ho$e loans% After an asset is con!erted into a $arketable securit#, it issold% A
securitization co$pan# or reconstruction co$pan# $a# raise funds fro$ onl# the :I; (
QualiedInstitutional Buyers
Asset Reconstruction:
. This means that when the securitiationcom'any or reconstruction com'any issues recei'ts, the
holder of the recei'ts is entitled to undi!ided interests in thefinancial assets and there is not need
of re)istration unless and otherwise it is com'ulsory under the Re)istration Act6708.*owe!er, the
re)istration of the security recei't is reuired in the followin) cases
+he securit# receipt is creating, declaring, assigning, li$iting, extinguishing an# right title orinter
est in a i$$o!able propert#%
The Sarfaesi act co!ers any asset, mo!a"le or immo!a"le, )i!en as security whether "y way of
mort)a)e,hy'othecation or creation of a security interest. There are some ece'tions in the
act such as 'ersonal "elon)in)s.*owe!er, only that 'ro'erty )i!en as security can "e 'roceeded under
the 'ro!isions of SARFAESI Act. If the 'ro'ertyof the "orrower is his own mort)a)ed residential
house, it is also $9T eem'ted from the Sarfaesi act.
The de"t Reco!ery Tri"unals ha!e "een em'owered to entertain a''eals a)ainst the misuse of
'owers )i!en to "anks. Any 'erson a))rie!ed, "y any order made "y the :e"ts Reco!ery Tri"unal may
)o to the A''ellate Tri"unal withinthirty days from the date of recei't of the order of :e"ts Reco!ery
Tri"unal.
The 1hief 4etro'olitan 4a)istrate or :istrict 4a)istrate has "een mandated to assist secured creditor
in takin)'ossession of secured asset. These officers will make sure that once the creditor has )i!en
him in writin) that all otherformalities of the act ha!e "een done, the 144 or :4 will take 'ossession
of such asset and documents relatin)thereto; and forward such assets and documents to the
secured creditor.
Now, here, you have to note that such an actof the CMM or DM
or before any authority.
The act allows takin) the matter to hi)h courts only in some matters related to the im'lementation
of the act in <ammu= >ashmir. *owe!er, *i)h 1ourts ha!e "een entertainin) writ 'etitions under
article 22/ #%ower to issue writs& of theconstitution of India.
The )o!ernment had a''ro!ed "ill to amend the act. The Enforcement of Security Interest and
Reco!ery of :e"ts?aws #Amendment& Bill, 2066, amends two Acts @ Sarfaesi Act 2002, and
Reco!ery of :e"ts :ue to Banks andFinancial Institutions Act, 677 #:RT Act&. ia these
amendments
;anks and asset reconstruction co$panies (AR/s) "ill be allo"ed to con!ert an# part of the debtof
the defaulting co$pan# intoe'uit#% Such a con!ersion "ould i$pl# that lenders or AR/s "ould
tendto beco$e an e'uit# holder rather than being a creditor of the co$pan#%
•
+he a$end$ents also allo"s banks tobid for an# i$$o!able propert# the# ha!e put outforauction th
e$sel!es, if the# do not recei!e an# bids during the auction% In such a scenario, banks"ill be able
to ad<ust the debt "ith the a$ount paid for this propert#% +his enables the bank to securethe asset
in part fulll$ent of the defaulted loan%
;anks can then sell this propert# to a ne" bidder at a later date to clear o the debt co$pletel#%
*owe!er lenders will "e a"le to carry this 'ro'erty on their "ooks only for se!en years, as 'er the
Bankin) Re)ulation Act, 67C7.
SARFAESI is eecti!e
+he SARFAESI Act, .77. gi!es po"ers of =seize and desist> to banks% ;anks can gi!e a notice in
"ritingto the defaulting borro"er re'uiring it to discharge itsliabilities "ithin ?7 da#s
Borroer fails to comply ith the notice, the Ban! may ta!e recourse to one or more of
thefolloin" measures:
+he outstanding dues are one lakh and abo!e and $ore than .79 of the principal loan a$ountand
interest there on%
#his act ma!es provisions for to main methods of recovery of the &'As as follos:
Securitisation:
Securitisation is the process of issuing $arketable securities backed b# a pool of existing assets
such as auto or ho$e loans% After an asset is con!erted into a $arketable securit#, it issold% A
securitization co$pan# or reconstruction co$pan# $a# raise funds fro$ onl# the :I; (
QualiedInstitutional Buyers
Asset Reconstruction: