If the possession notice has been served or is admitted to have been served by the borrowers/guarantors, then it is to be challenged within 45 days and in case of delay, the same is required to be condoned by showing a plausible reason. Further, no relief can be granted without any specific pleading on that issue, because it prejudicialy affects the right of the opposite party, who has no occasion to explain the unpleaded issue – Bank of India Vs. M/s Alchemist – DRAT Allahabad Bench
March 8, 2021
It is settled proposition of law that every measure taken by the bank under section 13(4) of the SARFAESI Act is challengeable before the DRT and no action of the Bank prior to taking symbolic possession gives rise any cause of action for filing S.A. The measures under section 13(4) including the issuance of the possession notice, sale notice or auction of the property give rise independent & separate cause of action at the relevant time and may be challenged separately or by filing common S.A., but within the stipulated period of limitation of 45 days from the accrual of cause of action. If the possession notice has been served or is admitted to have been served by the borrowers/guarantors, then it is to be challenged within 45 days and in case of delay, the same is required to be condoned by showing a plausible reason. Further, no relief can be granted without any specific pleading on that issue, because it prejudicialy affects the right of the opposite party, who has no occasion to explain the unpleaded issue.