Sub: Amendments made in the SARFAESI Act, 2002 and RDDBFI Act, 1993

Sub: Amendments made in the SARFAESI Act, 2002 and RDDBFI Act, 1993 - reg.

The Parliament has passed the Enforcement of Security Interest and recovery of Debts Laws (Amendment) Act, 2012 whereby the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as SARFAESI Act) and the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as RDDBFI Act) is amended. The Act has been assented to by the President on 03^rd January, 2013 and published in the Gazette of India on 04^th January 2013.  The salient features of the amendment are as follows:

1.      The one week time prescribed for furnishing reply to the representation or objection made by the Borrower envisaged under S. 13 (3A) of the SARFAESI Act has been increased to 15 days.

2.       New section inserted as 13 (5A) in the SARFAESI Act allowing the Secured Creditor (Bank) to bid for the immovable property on postponement of sale for want of a bid of an amount not less than reserve price at any subsequent sale.

3.       New Section inserted as 13 (5B) in the SARFAESI Act requiring to adjust the amount of the purchase price towards the amount of claim of the Secured Creditor (Bank), on declaration of the Secured Creditor (Bank) as purchaser.

4.       New Section inserted as 13 (5C) in the SARFAESI Act whereby the provisions of section 9 of the Banking Regulation Act, as far as may be, has been made applicable to the immovable property acquired by the Secured Creditor under S. 13 (5A).

5.       The entitlement to proceed under S. 13 (4) of the SARFAESI Act in case of financing of a financial asset by more than one secured creditors or joint financing of a financial asset has been reduced to 60% from 3/4^th in value of amount outstanding as on record date and the record date has been amended to mean the date agreed upon by the Secured Creditors representing not less than 60% in value of the amount outstanding on such date.

6.       A proviso has been inserted to S. 14(1) of the SARFAESI Act which requires the secured creditor to furnish an affidavit duly affirmed by the authorised officer along with the application for assistance declaring (1) the aggregate amount of financial assistance granted and the total claim of the Bank as on the date of filing the application; (2) the borrower has created security interest over various properties and that the Bank or Financial Institution is holding a valid and subsisting security interest over such properties and the claim of the Bank or Financial Institution is within the limitation period (3) the borrower has created security interest over various properties giving the details of properties; (4) the borrower has committed default in repayment of the financial assistance granted aggregating the specified amount; (5) consequent upon such default in repayment of the financial assistance the account of the borrower has been classified as a non performing asset; (6) affirming that the period of sixty days notice as required by the provisions of sub-section (2) of section 13, demanding payment of the defaulted financial assistance has been served on the borrower; (7) the objection or representation in reply to the notice received from the borrower has been considered by the secured creditor and reasons for non-acceptance of such objection or representation had been communicated to the borrower; (8) the borrower has not made any repayment of the financial assistance in spite of the above notice and the Authorised Officer is, therefore, entitled to take possession of the secured assets under the provisions of sub­section (4) of section 13 read with section 14 of the principal Act; (9) that the provisions of this Act and the rules made thereunder had been complied with. However, the requirement of filing affidavit shall not apply to proceeding pending before any District Magistrate or the Chief Metropolitan Magistrate.

7.       New Section inserted as S. 14 (1A) in the SARFAESI Act stipulating that the District Magistrate or the Chief Metropolitan Magistrate may authorise any officer to take possession of such assets and documents relating thereto and to forward such assets and documents to the secured creditor.

8.       S. 14 (3) of the in the SARFAESI Act has been amended to include any officer authorized by the Chief Metropolitan Magistrate or District Magistrate.

9.       New Section inserted as S. 18C in the SARFAESI Act incorporating right to lodge caveat by the Secured Creditor or any person claiming a right to appear before the Tribunal or the Court of the District Judge or the Appellate Tribunal or the High Court.

10.   New Section inserted as S. 26 A in the SARFAESI Act by which the Central Government may on the application of a secured creditor or securitization company or reconstruction company or any other person interested on such terms and conditions direct that the time for filing of the particulars of the transaction for registration or modification or satisfaction shall be extended or, as the case may require, the omission or mis-statement shall be rectified on being satisfied that the omission to file with the Registrar the particulars of any transaction of securitisation, asset reconstruction or security interest or modification or satisfaction of such transaction or; the omission or mis-statement of any particular with respect to any such transaction or modification or with respect to any satisfaction or other entry was accidental or due to inadvertence or some other sufficient cause or it is not of a nature to prejudice the position of creditors or that on other grounds, it is just and equitable to grant relief.

11.   New Section inserted as S. 19 (3 A) in the RDDBFI Act stating that the Applicant may be granted refund of the fees paid by him at such rates as may be prescribed on settlement of any application filed before the Tribunal for Recovery of any debt prior to the commencement of the hearing before the Tribunal or at any stage of the proceedings before the final order.

12.   S. 19 (5) of the RDDBFI Act has been substituted whereby the defendants shall file written statement within a period of thirty days from the date of service of summons with a proviso that the Presiding Officer may in exceptional cases and in special circumstances to be recorded in writing, allow not more than two extensions to the Defendants to file the Written Statement.

13.   New Section inserted as S. 19 (5A) in the RDDBFI Act restricting the number of adjournments which can be granted by the Tribunal after commencement of hearing.

14.   New Section inserted as S. 20A in the RDDBFI Act empowering the Tribunal to pass orders recording agreement, compromise or satisfaction of the claim, where it is proved to the satisfaction of the Tribunal that the claim of the Applicant has been adjusted wholly or in Part by any lawful agreement or compromise in writing signed by the parties or where the defendant has repaid or agreed to repay the claim of the Applicant.