Saturday, May 2, 2015

LIABILITY OF BANK IN BORROWER'S FAILURE TO RENEW INSURANCE POLICY

In Central Bank of India V Jagbir Singh CIVIL APPEAL NO. 3645 OF 2015 (Arising out of S.L.P. (Civil) 2343 of 2014 Hon'ble SC held that the Creditor Bank is not liable to pay compensation for non-renewal of insurance policy after referring the following law laid down by the SC:
In Pradeep Kumar Jain v. Citi Bank and another, Hon’ble SC while discussing Section 146 of Motor Vehicles Act, 1988 held as under: - 1 (1999) 6 SCC 361

Friday, February 6, 2015

REGISTRATION OF CHARGES UNDER THE COMPANIES ACT, 2013

REGISTRATION OF CHARGES UNDER THE COMPANIES ACT, 2013
Chapter VI of the Companies Act, 2013, containing section 77 to 87 deals with registration of charges in the ROC. The said provisions replace the sections 124 to 145 of Chapter V of the Companies Act, 1956. As per the new provision section 77 of the Companies Act 2013, every company creating a charge on its property or assets has to register the particulars of charge signed by the Company and charge holder together with instruments with in thirty days of its creation.  As per clause (3) of Section 77 of Companies Act 2013, no charge created by a company shall be taken into account by the liquidator unless it is duly registered.   

Thursday, February 5, 2015

ENFORCEMENT OF SECURITY INTEREST UNDER SARFAESI, ACT 2002
(Section 13 to 19 of the Act)

I.  Demand Notice under section 13(2) of SARFAESI ACT

(i)                 Requirement for initiation of Demand Notice
(a)    Account should have been classified as NPA
(b)    Documents should not be time barred (Section 36)
(c)    Above 1 lac ceiling (Section 31)
(d)   Total outstanding should be above 20% of total sanction (Section 31)
(e)    Secured Asset should not be agriculture land (Section 31)

(ii)               Important Contents of 13(2) Notice
A)    Advance details
B)    NPA date
C)    As on date dues payable
D)    Details of  Secured asset intended to be enforced

(iii)             Service of Demand Notice
Transmitting or delivering the 13(2) Demand Notice
to borrower including  Guarantors
at  (i) his Residence or
    (ii) place of business or
(iii)             place works for gain
Through
(i)                 Registered Post
(ii)               Speed Post  conspicuous
(iii)              Courier
(iv)              Email
(v)               Fax

(iv)             List of  Records to be preserved
1.       Copy of the 13(2) notice sent to all the borrowers including guarantors
2.      Postal receipts
3.      Acknowledgement card or returned cover or print out of status of delivery

 Substituted Service

4.      Affixture Photo of 13(2) at outer door or any conspicuous part of the building where borrower resides or his work place
5.      Paper publication (Both Tamil and English)
                                                  

  
II.   Reply to Representation or objection raised in response to the 13(2) notice
       (Reply should be with in fifteen days from receipt of the notice)     



III. Possession under section 13(4) of SARFAESI:

(1)  Requirement for initiation of possession notice
            (a)  Notice under Section 13(2) should have completed AND found to be in order.
            (b)  Sixty days should have completed from the date of notice
           
(2) Procedure of taking possession (Rule 8 (1) & (2) of Security Enforcement Rules, 2002)
      1. Delivering the possession notice to the borrower
      2. Affixing the Possession notice on the outer door or any other conspicuous place of the secured asset
      3.  Publishing the possession notice in two dailies having sufficient circulation  
           (English & Vernacular) within seven days after taking possession.

(3) List of Records to be preserved
1.      13(4) Affixture Photograph with authorized officer
2.      Postal receipts
3.      Acknowledgement card or personal acknowledgement on the copy of the possession notice or postal delivery status print out
4.      Copy of the paper publications (Vernacular and English)

(4) Remedies available to the borrowers (Section 17)
      Borrower or Guarantor or any other person (Tenant or person who is disputing title ) may approach the DRT against the possession notice by filing SA under Section 17 of SARFAESI Act within 45 days from the date of possession.

IIIa.  Physical Possession (Section 14)
(i)                 Filing an application before Chief Materopolitan Magistrate or District Magistrate to assist Authorised Officer to take physical possession of the property.

(2)   Application should be filed before CMM if the property situated within CMM jurisdiction otherwise to be filed before District Magistrate ie The Collector of concern District.




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Saturday, December 18, 2010

Unaccounted cash amount is not legally enforciable debt

Bombay High Court held in Sanjay Mishra  v  Kanishka Kapoor @ Nikki and Another 2009 AllMR(Cr) 1080 that the unaccounted cash amount  can not be said to be a legally recoverable debt.

Saturday, December 11, 2010

Legal Practitioners Bill. 2010

Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interest of Clients and Promoting the Rule of Law) Bill, 2010.

Tuesday, November 23, 2010

Stamp Paper purchased more than six months prior to the proposed date of Execution

Thiruvengada Pillai v Navaneethammal and Another 2008 (4) SCC 530

 The Indian Stamp Act, 1899 nowhere prescribes any expiry date for use of a stamp paper. Section 54 merely provides that a person possessing a stamp paper for which he has no immediate use (which is not spoiled or rendered unfit or useless), can seek refund of the value thereof by surrendering such stamp paper to the Collector provided it was purchased within the period of six months next preceding the date on which it was so surrendered. The stipulation of the period of six months prescribed in section 54 is only for the purpose of seeking refund of the value of the unused stamp paper, and not for use of the stamp paper. Section 54 does not require the person who has purchased a stamp paper, to use it within six months. Therefore, there is no impediment for a stamp paper purchased more than six months prior to the proposed date of execution, being used for a document.  (para 11)

Friday, November 19, 2010

Compounding of Cheque bounce cases guideline

Honble Supreme Court recently layed down procedure to compound the offences under the section 138 of NI Act in Damodar S. Prabhu  v  Sayed Babalal H. 2010 AIR(SC) 1907
Damodar S. Prabhu  v  Sayed Babalal H. 2010 AIR(SC) 1907