Doctrine of Lender’s Liability and SARFAESI Act

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Contents

Introduction 3

Non Performing Assets 3

Lok Adalats 3

Debt Recovery Tribunals (DRT) 3

SARFAESI Act 4

Securitisation Companies/ Reconstruction Companies (SC/RC) 4

Lender's Right 4

Lender's Liability 4

Borrower’s Right 5

Borrowers Liability 5

Guidelines 6

Impact 6

Case Study 7

Introduction

The balance of payments (BoP) crisis of the early 1990s came as a blessing in disguise as it provided to push through reforms to first bring India’s economic policies, practices, laws, rules and institutions in line with global standards. The thrust of the reforms was focused on the financial sector, in general, and banks, in particular. After much deliberations, the Narasimham Committee laid down a roadmap for reforms in the banking and financial sectors.

There exist defined means to deal with NPAs of banks and financial institutions today. However prior to 1993, financial institutions had to take recourse to the long legal route against defaulting borrowers, initiating with the filing of claims in the court. A lot of time was therefore spent in the judicial process before banks could have any chance of recovering their loans. On an average, a civil suit decision took anywhere between 5 to 7 years.

Non Performing Assets

An asset becomes non-performing when it ceases to generate income for the bank. In India, a Non-Performing Asset (NPA) is broadly defined as one with interest or principal repayment installment unpaid for more than 90 days.

Lenders (banks) have three legal options are available for resolution of NPAs in India:

• Lok Adalats

Debt Recovery Tribunals

• SARFAESI Act

Lok Adalats

Lok Adalat is a system of alternative dispute resolution developed in India. The focus in is on compromise and when n...

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...rouble with this recovery system. It is true that that the Bank is supposed to defeat the unfair approach of the borrower, but, there is a law and if borrower raises a considerable legal point, the same has to be considered. Law is always supported by logic, and the legal point or right being raised by the borrower cannot be ignored without any reason.

Against this background, of late, even the High Courts coming heavily against the Bank and High Court is setting-aside the proceedings of DRT or DRAT.

Complications

Due to the reasons mentioned above, it is most often difficult for the borrowers to find-out the appropriate remedy against the Bank if there is a good ground to challenge the Bank’s action. Just because, the lender (bank) says a particular thing against a borrower, the same cannot be absolute truth. It all depends upon the circumstances of the case.

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