123ArticleOnline Logo
Welcome to 123ArticleOnline.com!
ALL >> Legal >> View Article

Under Securitisation Act, If The Secured Creditor Is Acting In Violation Of The Rights, Duties And O

Profile Picture
By Author: Narendra Sharma
Total Articles: 10
Comment this article
Facebook ShareTwitter ShareGoogle+ ShareTwitter Share

Under Securitisation Act, if the secured creditor is acting in violation of the rights, duties and obligations, the mortgagor can come to the Civil Court before sale with a civil suit for injunction

Under Securitisation Act, if the secured creditor is acting in violation of the rights, duties and obligations, the mortgagor can come to the Civil Court before sale with a civil suit for injunction for staying the sale

In Mardia Chemicals Ltd. Vs U.O.I. & Ors. {A.I.R 2004 SC 2371; (2004) 4 SCC 311; (2004) 59 CLA 380 (SC); Date of Judgment: 08/04/2004} a three judge bench of hon’ble Supreme Court has observed and held as follows {in para 51, 53 and 80(5)}:

“51. However, to a very limited extent jurisdiction of the civil court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or their claim may be so absurd and untenable which may not require any probe, whatsoever or to say precisely to the extent the scope is permissible to bring an action in the civil court in the cases of English mortgages.”

“53. We also find it appropriate to mention ...
... at this stage that in reply to submission made by Shri Dholakia on behalf of the guarantors that even though a guarantor may stand discharged as envisaged under Sections 133 and 135 of the Indian Contracts Act, e.g., where any variance in terms of the contract has been made without his consent, then too guarantor may be proceeded against and he will have no right to raise an objection, before measures have been taken against him under Section 13(4) of the Act nor he could approach the civil court. It is submitted by the respondent in such cases civil court may have jurisdiction to entertain the case as character as a guarantor itself is denied.” (italics supplied)

“80(5). As discussed earlier in this judgment, we find that it will be open to maintain a civil suit in civil court, within the narrow scope and on the limited grounds on which they are permissible, in the matters relating to an English mortgage enforceable without intervention of the court.” (italics supplied)

In other words, the Supreme Court has held that if the secured creditor is acting in violation of the rights, duties and obligations, the mortgagor (i.e. the principal debtor or the guarantor as the case may be) can come to the Civil Court before sale with a civil suit for injunction for staying the sale. It is important to note here that in para 53 of the judgment Supreme Court has accepted that there are no safeguards in the Act for a guarantor and it can not be denied that even though a guarantor may stand discharged as envisaged under Sections 133 and 135 of the Contracts Act, e.g., where any variance in terms of the contract has been made without his consent, then too guarantor may be proceeded against and he will have no right to raise an objection, before measures have been taken against him under Section 13(4) of the Act.
Note: the views expressed are my personal and a view point only.

Author:

Narendra Sharma,

Consultant (Business Laws)

E-mail: nkdewas@yahoo.co.in

Total Views: 502Word Count: 527See All articles From Author

Add Comment

Legal Articles

1. Coping With Divorce: How Your Lawyer Can Support You Emotionally
Author: Singapore Sole Parent

2. R2 Certification: Leading The Way Toward Responsible And Sustainable E-waste Recycling
Author: URS Certification

3. Trusted Cryptocurrency Law Firm In India: Expert Cryptocurrency Attorneys
Author: SMV CHAMBERS

4. The Role Of A Lawyer In Child Access And Visitation Rights
Author: Singapore Sole Parent

5. Pre-settlement Funding In 2025: A Smart Financial Lifeline For Plaintiffs
Author: Gain Servicing

6. Parenting After Divorce: Legal And Emotional Guidance For Single Parents
Author: Singapore Sole Parent

7. Family Law Attorney In Virginia Beach – Guiding You Through Life’s Toughest Moments
Author: family lawyer

8. Understanding “what Is Bankruptcy”: Definition, Types & Things To Know
Author: RecoveryLawGroup

9. Role Of A Divorce Lawyer In Child Custody And Support Cases
Author: Singapore Sole Parent

10. Can You Represent Yourself Instead Of Hiring A Divorce Lawyer In Singapore?
Author: Singapore Sole Parent

11. Understanding Debt Negotiation And Consumer Rights With Jpmorgan Chase & Co
Author: Matt Williams

12. Motorcycle Lawyer In Lubbock: Protecting Your Rights On The Road
Author: Mark Taylor

13. Motorcycle Lawyer Waco: Protecting Your Rights On The Road
Author: Mark Taylor

14. Motorcycle Lawyer Austin: Your Trusted Advocate On Two Wheels
Author: Mark Taylor

15. Inside Deportation Defense: Miami Immigration Attorneys At Work
Author: Tim B Scott

Login To Account
Login Email:
Password:
Forgot Password?
New User?
Sign Up Newsletter
Email Address: