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Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002

An Act to regulate securitisation and reconstruction of financial assets and enforcement of security interest and for matters connected therewith or incidental thereto. Be it enacted by Parliament in the Fifty-third Year of the Republic of India as follows :-

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S.36 Limitation

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Limitation:- No secured creditor shall be entitled to take all or any of the measures under sub-section (4) of Section 13, unless his claim in respect of the financial asset is made within the period of limitation prescribed under the Limitation Act, 1963 (36 of 1963).



Legal Commentary on Section 36 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002

Introduction

Section 36 of the SARFAESI Act, 2002, plays a crucial role in setting limitations on the exercise of rights by secured creditors, ensuring that recovery measures are initiated within prescribed statutory time frames. It aims to balance the rights of creditors with the protection of borrowers and other stakeholders, preventing arbitrary or prolonged actions.

What does Section 36 Say?

Section 36 states that no secured creditor shall be entitled to take any measures under sub-section (4) of Section 13 unless his claim in respect of the amount due is within the period of limitation prescribed under the law. Essentially, it imposes a statutory bar on initiating recovery actions unless the claim is within the limitation period.

Essential Ingredients

  • Claim within Limitation: The creditor’s claim must be within the period of limitation prescribed by law (generally 3 or 12 years depending on the nature of the debt).
  • Pre-condition for Action: Initiation of measures under Section 13(4) is contingent upon the claim being within this period.
  • No Right to Proceed: If the claim is barred by limitation, the creditor cannot proceed with measures like possession, sale, or transfer of secured assets.

Scope of Section 36

  • Applicability: Applies to all measures under sub-section (4) of Section 13, including possession, sale, lease, or transfer of secured assets.
  • Limitation Law Integration: Incorporates the Limitation Act, 1963, ensuring that the period of limitation is respected.
  • Protection for Borrowers: Provides a safeguard against stale claims, ensuring that actions are timely and justified.
  • Effect on Enforcement: If the claim is barred, the enforcement process becomes invalid, and the secured creditor cannot take further steps.

Punishment for Non-compliance

While Section 36 itself does not prescribe a specific punishment, non-compliance—i.e., proceeding with measures after the claim becomes time-barred—renders such actions invalid and subject to challenge before courts or tribunals. It can lead to the nullification of proceedings and liability for damages or costs.

Legal Comments

  • Limitation - Section 36 mandates that recovery measures can only be initiated if the debt is within the statutory period of limitation, preventing stale claims - [Section 36, SARFAESI Act, 2002].

  • Limitation Law Integration - The section explicitly incorporates the Limitation Act, 1963, aligning recovery actions with statutory time limits - [Section 36, SARFAESI Act, 2002].

  • Protection of Borrowers - It acts as a safeguard for borrowers against arbitrary and prolonged recovery proceedings based on expired claims - [Section 36, SARFAESI Act, 2002].

  • Pre-condition for Action - Initiating measures under Section 13(4) is only permissible if the debt claim is within limitation, ensuring timely enforcement - [Section 36, SARFAESI Act, 2002].

  • Scope Limitation - The section restricts the scope of recovery actions, making them subject to the limitation period, thus curbing abuse of process - [Section 36, SARFAESI Act, 2002].

  • Legal Validity of Actions - Actions taken after the claim is barred are invalid and can be challenged in courts or tribunals, leading to legal consequences for the secured creditor - [Section 36, SARFAESI Act, 2002].

  • Judicial Enforcement - Courts have held that proceedings initiated beyond the limitation period are liable to be dismissed or declared null and void - [Relevant case law].

  • Overriding Effect - Section 36 overrides the rights of creditors to recover stale debts, aligning enforcement with the Limitation Act - [Section 36, SARFAESI Act, 2002].

  • Preventive Measure - The provision acts as a preventive measure to avoid unnecessary litigation and enforcement efforts on time-barred claims - [Section 36, SARFAESI Act, 2002].

  • Interpretation of Limitation - Courts interpret the limitation period strictly, and the burden is on the creditor to prove that the claim is within the prescribed period - [Judicial precedents].

  • Legal Remedy - Borrowers can challenge proceedings initiated after the expiry of limitation period, leading to stay or quashing of such measures - [Case law].

  • Impact on Enforcement - Secured creditors must verify the limitation period before initiating proceedings; failure to do so invalidates their actions - [Legal commentary].

  • Order of the Courts - Courts have consistently held that actions beyond the limitation period are barred and cannot be sustained - [Judicial decisions].

  • Policy Objective - Section 36 aligns with the policy of ensuring timely enforcement and preventing harassment through stale claims - [Legal principles].

  • Integration with Other Provisions - The section complements other provisions of SARFAESI, ensuring enforcement is within legal bounds - [Legal analysis].

  • Breach Consequences - Proceeding after the claim becomes time-barred can lead to penalties, damages, or orders for costs - [Legal consequences].

  • Judicial Discretion - Courts may dismiss actions that violate the limitation clause, reinforcing the importance of timely proceedings - [Case law].

  • Summary - Section 36 is a vital statutory safeguard that enforces the principle of limitation, ensuring that recovery actions are timely, lawful, and just, thereby protecting borrowers and maintaining legal discipline in enforcement proceedings - [Legal commentary].

  • [Section 36, SARFAESI Act, 2002]
  • [Judicial decisions and case law on limitation]
  • [Legal commentaries on SARFAESI provisions]
  • [Supreme Court judgments affirming the importance of limitation in recovery proceedings]

S.3 Registration of securitisation companies or reconstruction companies

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

CHAPTER II
REGULATION OF SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS OF BANKS AND FINANCIAL INSTITUTIONS

Registration of securitisation companies or reconstruction companies:- (1) No securitisation company or reconstruction company shall com­mence or carry on the business of securitisation or asset reconstruction without-

(a) obtaining a certificate of registration granted under this section; and

(b) having the owned fund of not less than two crore rupees or such other amount not exceeding fifteen per cent of total financial assets acquired or to be acquired by the securitisation company or recon­struction compan

S.4 Cancellation of certificate of registration

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Cancellation of certificate of registration:- (1) The Reserve Bank may cancel a certificate of registration granted to a securitisation company or a reconstruction company, if such com­pany-

(a) ceases to carry on the business of securitisation or asset reconstruc­tion; or

(b) ceases to receive or hold any investment from a qualified institu­tional buyer; or

(c) has failed to comply with any conditions subject to which the certificate of registration has been granted to it; or

(d) at any time fails to fulfil any of the conditions referred to in clauses (a) to (g) of sub-section (3) of

S.5 Acquisition of rights or interest in financial assets

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Acquisition of rights or interest in financial assets:- (1) Notwithstanding anything contained in any agreement or any other law for the time being in force, any securitisation company or reconstruc­tion company may acquire financial assets of any bank or financial institution,-

(a) by issuing a debenture or bond or any other security in the nature of debenture, for consideration agreed upon between such company and the bank or financial institution, incorporating therein such terms and conditions as may be agreed upon between them; or

(b) by entering into an agreement with such bank or financial institution for the transfer of such financial assets to such compan

S.5-A Transfer of pending applications to any one of Debts Recovery Tribunals in certain cases

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

* [Transfer of pending applications to any one of Debts Recovery Tribunals in certain cases.—(1) If any financial asset, of a borrower acquired by a securitisation company or reconstruction company, comprise of secured debts of more than one bank or financial institution for recovery of which such banks or financial institutions has filed applications before two or more Debts Recovery Tribunals, the securitisation company or reconstruction company may file an application to the Appellate Tribunal having jurisdiction over any of such Tribunals in which such applications are pending for transfer of all pending applications to any one of the Debts Recovery Tribunals as it deems

S.6 Notice to obligor and discharge of obligation of such obligor

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Notice to obligor and discharge of obligation of such obligor:- (1) The bank or financial institution may, if it considers appropriate, give a notice of acquisition of financial assets by any securitisation company or reconstruction company, to the concerned obligor and any other con­cerned person and to the concerned registering authority (including Registrar of Companies) in whose jurisdiction the mortgage, charge, hypothecation, assignment or other interest created on the financial assets had been registered.

(2) Where a notice of acquisition of financial asset under sub-section (1) is given by a bank or financial institution, the obligor, on receipt of such notice, shall make payment to the conc

S.7 Issue of security by raising of receipts or funds by securitisation company or reconstruction company

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Issue of security by raising of receipts or funds by securitisation company or reconstruction company:- (1) Without prejudice to the provisions contained in the Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act, 1956 (42 of 1956) and the Securities and Exchange Board of India Act, 1992 (15 of 1992), any securitisation company or reconstruction company, may, after acquisition of any financial asset under sub-section (1) of Section 5, offer security receipts to qualified institutional buyers (other than by offer to public) for subscription in accordance with the provisions of those Acts.

(2) A securitisation company or reconstruction company may raise funds from the qualified inst

S.8 Exemption from registration of security receipt

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Exemption from registration of security receipt:- Notwithstanding anything contained in sub-section (1) of Section 17 of the Registration Act, 1908 (16 of 1908),-

(a) any security receipt issued by the securitisation company or recon­struction company, as the case may be, under sub-section (1) of Section 7, and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except insofar as it entitles the holder of the security receipt to an undivided interest afforded by a registered instrument; or

(b) any transfer of security receipts, shall not require compulsory registration.


S.9 Measures for assets reconstruction

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Measures for assets reconstruction:- Without prejudice to the provisions contained in any other law for the time being in force, a securitisation company or reconstruction company may, for the purposes of asset reconstruction, having regard to the guidelines framed by the Reserve Bank in this behalf, provide for any one or more of the following measures, namely :-

(a) the proper management of the business of the borrower, by change in, or take over of, the management of the business of the borrower;

(b) the sale or lease of a part or whole of the business of the borrower;

(c) rescheduling of payment of debts payable by the borrower;

S.10 Other functions of securitisation company or reconstruction company

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Other functions of securitisation company or reconstruction company:- (1) Any securitisation company or reconstruction company registered under Section 3 may-

(a) act as an agent for any bank or financial institution for the purpose of recovering their dues from the borrower on payment of such fees or charges as may be mutually agreed upon between the parties;

(b) act as a manager referred to in clause (c) of sub-section (4) of Section 13 on such fee as may be mutually agreed upon between the parties;

(c) act as receiver if appointed by any Court or Tribunal:

Provided that no securitisation compan

S.11 Resolution of disputes

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Resolution of disputes:- Where any dispute relating to securitisation or reconstruction or non-­payment of any amount due including interest arises amongst any of the parties, namely, the bank or financial institution or a securitisation company or reconstruction company or qualified institutional buyer, such dispute shall be settled by conciliation or arbitration as provided in the Arbitration and Conciliation Act, 1996 (26 of 1996), as if the parties to the dispute have consented in writing for determination of such dispute by conciliation or arbitration and the provisions of that Act shall apply accordingly.


S.12 Power of Reserve Bank to determine policy and issue directions

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Power of Reserve Bank to determine policy and issue directions:- (1) If the Reserve Bank is satisfied that in the public interest or to regulate financial system of the country to its advantage or to prevent the affairs of any securitisation company or reconstruction company from being conducted in a manner detrimental to the interest of investors or in any manner prejudicial to the interest of such securitisation company or reconstruction company, it is necessary or expedient so to do, it may determine the policy and give directions to all or any securitisation company or reconstruction company in matters relating to income recog­nition, accounting standards, making provisions for bad and doubtful debts, capital adequacy based on ris

S.12-A Power of Reserve Bank to call for statements and information

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

* [Power of Reserve Bank to call for statements and information.—The Reserve Bank may at any time direct a securitisation company or reconstruction company to furnish it within such time as may be specified by the Reserve Bank, with such statements and information relating to the business or affairs of such securitisation company or reconstruction company (including any business or affairs with which such company is concerned) as the Reserve Bank may consider necessary or expedient to obtain for the purposes of this Act.]


S.13 Enforcement of security interest

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

CHAPTER III
ENFORCEMENT OF SECURITY INTEREST

Enforcement of security interest:- (1) Notwithstanding anything contained in Section 69 or Section 69A of the Transfer of Property Act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the interven­tion of the Court or Tribunal, by such creditor in accordance with the provisions of this Act.

(2) Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset

S.14 Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset:- (1) Where the possession of any secured asset is required to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured asset, request, in writing, the Chief Metropolitan Magis­trate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magis

S.15 Manner and effect of take over of management

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Manner and effect of take over of management:- (1) * [When the management of business of a borrower is taken over by a securitisation company or reconstruction company under clause (a) of Section 9 or, as the case may be, by a secured creditor under clause (b) of sub-section (4) of Section 13], the secured creditor may, by publishing a notice in a newspaper published in English language and in a newspaper published in an Indian language in circulation in the place where the principal office of the borrower is situated, appoint as many persons as it thinks fit-

(a) in a case in which the borrower is a company as defined in the Companies Act, 1956

S.16 No compensation to directors for loss of office

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

No compensation to directors for loss of office:- (1) Notwithstanding anything to the contrary contained in any con­tract or in any other law for the time being in force, no managing director or any other director or a manager or any person in charge of manage­ment of the business of the borrower shall be entitled to any compensation for the loss of office or for the premature termination under this Act of any contract of management entered into by him with the borrower.

(2) Nothing contained in sub-section (1) shall affect the right of any such managing director or any other director or manager or any such person in charge of management to recover from the business of the borrower, moneys recov

S.17 Right to appeal

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Right to appeal:- (1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorised officer under this Chapter, * [may make an application along with such fee, as may be prescribed] to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken:

* [Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.]

S.17-A Making of application to Court of District Judge in certain cases

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

* [Making of application to Court of District Judge in certain cases.—In the case of a borrower residing in the State of Jammu and Kashmir, the application under Section 17 shall be made to the Court of District Judge in that State having jurisdiction over the borrower which shall pass an order on such application.

Explanation.—For the removal of doubts, it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons shall not entitle the person (includ

S.18 Appeal to Appellate Tribunal

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Appeal to Appellate Tribunal:- (1) Any person aggrieved, by any order made by the Debts Recovery Tribunal * [under Section 17, may prefer an appeal along with such fee, as may be prescribed] to the Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal.

* [Provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower:]

* [Provided further that no appeal shall be entertained unless the bo

S.18-A Validation of fees levied

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

* [Validation of fees levied.—Any fee levied and collected for preferring, before the commencement of the Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Act, 2004, an appeal to the Debts Recovery Tribunal or the Appellate Tribunal under this Act, shall be deemed always to have been levied and collected in accordance with law as if the amendments made to Sections 17 and 18 of this Act by Sections 10 and 12 of the said Act were in force at all material times.


S.18-B Appeal to High Court in certain cases

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Appeal to High Court in certain cases.—Any borrower residing in the State of Jammu and Kashmir and aggrieved by any order made by the Court of District Judge under Section 17-A may prefer an appeal, to the High Court having jurisdiction over such Court, within thirty days from the date of receipt of the order of the Court of District Judge :

Provided that no appeal shall be preferred unless the borrower has deposited, with the Jammu and Kashmir High Court, fifty per cent of the amount of the debt due from him as claimed by the secured creditor or determined by the Court of District Judge, whichever is less;

Provided further that the High Court may, for the reaso

S.19 Right of borrower to receive compensation and costs in certain cases

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

* [Right of borrower to receive compensation and costs in certain cases:- If the Debts Recovery Tribunal or the Court of District Judge, on an application made under Section 17 or Section 17-A or the Appellate Tribunal or the High Court on an appeal preferred under Section 18 or Section 18-A, holds that the possession of secured assets by the secured creditor is not in accordance with the provisions of this Act and rules made thereunder and directs the secured creditors to return such secured assets to the concerned borrowers, such borrower shall be entitled to the payment of such compensation and costs as may be determined by such Tribunal or Court of District Judge or Appellate Tribunal or the

S.20 Central Registry

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

CHAPTER IV
CENTRAL REGISTRY

Central Registry:- (1) The Central Government may, by notification, set-up or cause to be set-up from such date as it may specify in such notification, a registry to be known as the Central Registry with its own seal for the purposes of registration of transaction of securitisation and reconstruction of finan­cial assets and creation of security interest under this Act.

(2) The head office of the Central Registry shall be at such place as the Central Government may specify and for the purpose of facilitating registration of transactions referred to in sub-section (1), there may be established at such other places as the Central Govern

S.21 Central Registrar

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Central Registrar:- (1) The Central Government may, by notification, appoint a person for the purpose of registration of transactions relating to securitisation, reconstruction of financial assets and security interest created over properties, to be known as the Central Registrar.

(2) The Central Government may appoint such other officers with such designations as it thinks fit for the purpose of discharging under the superintendence and direction of the Central Registrar, such functions of the Central Registrar under this Act as he may, from time to time, authorise them to discharge.


S.22 Register of securitisation, reconstruction and security interest transactions

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Register of securitisation, reconstruction and security interest transac­tions:- (1) For the purposes of this Act, a record called the Central Register shall be kept at the head office of the Central Registry for entering the particulars of the transactions relating to-

(a) securitisation of financial assets;

(b) reconstruction of financial assets; and

(c) creation of security interest.

(2) Notwithstanding anything contained in sub-section (1), it shall be lawful for the Central Registrar to keep the records wholly or partly in computer, floppies, diskettes or in any other electronic form sub

S.23 Filing of transactions of securitisation, reconstruction and creation of security interest

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Filing of transactions of securitisation, reconstruction and creation of security interest:- The particulars of every transaction of securitisation, asset recon­struction or creation of security interest shall be filed, with the Central Registrar in the manner and on payment of such fee as may be prescribed, within thirty days after the date of such transaction or creation of security, by the securitisation company or reconstruction company or the secured creditor, as the case may be:

Provided that the Central Registrar may allow the filing of the particulars of such transaction or creation of security interest within thirty days next following the expiry of the said period of thirty days on payment

S.24 Modification of security interest registered under this Act

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Modification of security interest registered under this Act:- Whenever the terms or conditions, or the extent or operation, of any security interest registered under this Chapter, are, or is, modified, it shall be the duty of the securitisation company or the reconstruction company or the secured creditor, as the case may be, to send to the Central Registrar, the particulars of such modification, and the provisions of this Chapter as to registration of a security interest shall apply to such modification of such security interest.


S.25 Securitisation company or reconstruction company or secured creditor to report satisfaction of security interest

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Securitisation company or reconstruction company or secured creditor to report satisfaction of security interest:- (1) The securitisation company or the reconstruction company or the secured creditor as the case may be, shall give intimation to the Central Registrar of the payment or satisfaction in full, of any security interest relating to the securitisation company or the reconstruction company or the secured creditor and requiring registration under this Chapter, within thirty days from the date of such payment or satisfaction.

* [(1-A) On receipt of intimation under sub-section (1), the Central Registrar shall order that a memorandum of sati

S.26 Right to inspect particulars of securitisation, reconstruction and security interest transactions

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Right to inspect particulars of securitisation, reconstruction and security interest transactions:- (1) The particulars of securitisation or reconstruction or security interest entered in the Central Register of such transactions kept under Section 22 shall be open during the business hours for inspection by any person on payment of such fee as may be prescribed.

(2) The Central Register, referred to in sub-section (1) maintained in electronic form, shall also be open during the business hours for the inspection by any person through electronic media on payment of such fee as may be prescribed.


S.27 Penalties

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

CHAPTER V
OFFENCES AND PENALTIES

Penalties:- If a default is made-

(a) in filing under Section 23, the particulars of every transaction of an securitisation or asset reconstruction or security interest created by a securitisation company or reconstruction company or secured creditor; or

(b) in sending under Section 24, the particulars of the modification referred to in that section; or

(c) in giving intimation under Section 25, every company and every officer of the company or the secured creditor and every officer of the secured creditor who is in default shall be punishable with fine which may

S.28 Penalties for non-compliance of direction of Reserve Bank

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Penalties for non-compliance of direction of Reserve Bank:- If any securitisation company or reconstruction company fails to comply with any direction issued by the Reserve Bank * [under Section 12 or Section 12-A], such company and every officer of the company who is in default, shall be punishable with fine which may extend to five lakh rupees and in the case of a continuing offence, with an additional fine which may extend to ten thousand rupees for every day during which the default continues.


S.29 Offences

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Offences:- If any person contravenes or attempts to contravene or abets the contravention of the provisions of this Act or of any rules made thereun­der, he shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.


S.30 Cognizance of offence

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

*[Cognizance of offence:-(1) No Court shall take cognizance of any offence punishable under Section 27 in relation to non-compliance with the provisions of Section 23, Section 24 or Section 25 or under Section 28 or Section 29 or any other provisions of the Act, except upon a compliant in writing made by an officer of the Central Registry or an officer of the Reserve Bank, generally or specially authorised in writing in this behalf by the Central Registrar or, as the case may be, the Reserve Bank.

(2) No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.]

S.31 Provisions of this Act not to apply in certain cases

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

CHAPTER VI
MISCELLANEOUS

Provisions of this Act not to apply in certain cases:- The provisions of this Act shall not apply to-

(a) a lien on any goods, money or security given by or under the Indian Contract Act, 1872 (9 of 1872) or the Sale of Goods Act, 1930 (3 of 1930) or any other law for the time being in force;

(b) a pledge of movables within the meaning of Section 172 of the Indian Contract Act, 1872 (9 of 1872);

(c) creation of any security in any aircraft as defined in clause (1) of Section 2 of the Aircraft Act, 1934 (24 of 1934);

(d) creation of se

S.32 Protection of action taken in good faith

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Protection of action taken in good faith:- No suit, prosecution or other legal proceedings shall lie against any secured creditor or any of his officers or manager exercising any of the rights of the secured creditor or borrower for anything done or omitted to be done in good faith under this Act.


S.33 Offences by companies

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Offences by companies:- (1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company, for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(2) Not

S.34 Civil Court not to have jurisdiction

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Civil Court not to have jurisdiction:- No civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunc­tion shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).


S.35 The provisions of this Act to override other laws

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

The provisions of this Act to override other laws:- The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.


S.37 Application of other laws not barred

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Application of other laws not barred:- The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Securities and Exchange Board of India Act, 1992 (15 of 1992), the Recovery of Debts Due to Bank and Financial Institutions Act, 1993 (51 of 1993) or any other law for the time being in force.


S.38 Power of Central Government to make rules

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Power of Central Government to make rules:- (1) The Central Government may, by notification and in the Electronic Gazette as defined in clause (s) of Section 2 of the Information Technology Act, 2000 (21 of 2000), make rules for carrying out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :-

(a) the form and manner in which an application may be filed under sub-­section (10) of Section 13;

(b) the manner in which the rights of a secured creditor may be exercised by one or more of his officers unde

S.39 Certain provisions of this Act to apply after Central Registry is set up or cause to be set up

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Certain provisions of this Act to apply after Central Registry is set up or cause to be set up:- The provisions of sub-sections (2), (3) and (4) of Section 20 and Sections 21, 22, 23, 24, 25, 26 and 27 shall apply after the Central Registry is set up or cause to be set up under sub-section (1) of Section 20.


S.40 Power to remove difficulties

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Power to remove difficulties:- (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as may appear to be necessary for removing the difficulty:

Provided that no order shall be made under this section after the expiry of a period of two years from the commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.


S.41 Amendments to certain enactments

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Amendments to certain enactments:- The enactments specified in the schedule shall be amended in the manner specified therein.


S.42 Repeal and saving

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Repeal and saving:- (1) The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (Second) Ordinance, 2002 (Ordinance 3 of 2002) is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act.


S.18-C Right to lodge a caveat

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

*[Right to lodge a caveat.-(1) Where an application or an appeal is expected to be made or has been made under sub-section (1) of Section 17 or Section 17-A or sub-section (l) of Section 18 or Section 18-B, the secured creditor or any person claiming a right to appear before the Tribunal or the Court of District Judge or the Appellate Tribunal or the High Court, as the case may be, on the hearing of such application or appeal, may lodge a caveat in respect thereof.

(2) Where a caveat has been lodged under sub-section (1),-

(a) the secured creditor by whom the caveat has been lodged (hereafter in this section referre

S.26-A Rectification by Central Government in matters of registration, modification and satisfaction, etc

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

*[Rectification by Central Government in matters of registration, modification and satisfaction, etc.-(1) The Central Government, on being satisfied-

(a) that the omission to file with the Registrar the particulars of any transaction of securitisation, asset reconstruction or security interest or modification or satisfaction or such transaction or; the omission or misstatement of any particular with respect to any such transaction or modification or with respect to any satisfaction or other entry made in pursuance of Section 23 or Section 24 or Section 25 of the principal Act was accidental or due to inadvertence or some other sufficient cause or it

S.31-A Power to exempt a class or classes of banks or financial institutions

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

* [Power to exempt a class or classes of banks or financial institutions.-(1) The Central Government may, by notification in the public interest, direct that any of the provisions of this Act,-

(a) shall not apply to such class or classes or banks or financial institutions; or

(b) shall apply to the class or classes of banks or financial institutions with such exceptions, modifications and adaptations, as may be specified in the notification.

(2) A copy of every notification proposed to be issued under sub-section (1), shall be laid in draft before each House of Parliament, while

S.2 Definitions

SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

Definitions:- (1) In this Act, unless the context otherwise requires,-

(a) "Appellate Tribunal" means a Debts Recovery Appellate Tribunal established under sub-Section (1) of Section 8 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993);

(b) "asset reconstruction" means acquisition by any securitisation com­pany or reconstruction company of any right or interest of any bank or financial institution in any financial assistance for the purpose of realisation of such financial assistance;

(c) "bank" means-

(i) a banking company; or

S.1 Short title, extent and commencement

SECURITIZATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002

CHAPTER I
PRELIMINARY

Short title, extent and commencement:- (1) This Act may be called the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

(2) It extends to the whole of India.

(3) It shall be deemed to have come into force on the 21st day of June, 2002.


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