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Borrower need not wait until actual possession of assets; plea can be filed at stage of notice for Possession

November 6, 2018[2018] 99 taxmann.com 76 (SC)
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SARFAESI Act : Borrower/debtor can approach Debts Recovery Tribunal under section 17 of Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 Act at stage of possession notice referred to in rule 8(1) and 8(2) of Security Interest (Enforcement) Rules, 2002

• Newly inserted Appendix IV-A to rules recognises fact that rule 8(1) and 8(2) refer to constructive possession whereas rule 8(3) refers to physical possession. Hence, full bench of Allahabad High Court holding that a securitisation application under section 17(1) is maintainable only when actual/physical possession is taken by secured creditor or borrower loses actual/physical possession of secured assets was to be set aside.

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