No separate publication is required while taking physical possession of the property if compliance is made after taking symbolic possession | A waiver of the mandatory provision under Rule 8(6) of Security Interest (Enforcement) Rules, 2002 (Non-service of a notice on the borrower about the auction sale) is possible – Central Bank of India Vs. Upendra Pravinbhai Patel and Anr. – DRAT Mumbai
Hon’ble DRAT Mumbai held that:
(i) No separate publication is required while taking physical possession of the property if compliance is made after taking symbolic possession. Sub-rule (3) to Rule 8 relating to taking possession of the immovable property actually by the authorised officer does not contemplate a further publication in newspapers.
(ii) Applying these principles laid down in ARCE Polymer Pvt. Ltd. v. Alphine Pharmaceuticals and Ors. (2021) ibclaw.in 172 SC to the case in hand, it has to be held that the borrower is estopped from raising any challenge to the Sarfaesi measures including the sale because of his voluntary act of offering to settle the dues in a time-bound manner and then failing to comply with that.
