We had taken bank Loan by mortgaging our Shop and now the Bank have initiated recovery proceedings by attaching our shop under SARFAESI Act . Can we sell the immovable properties at our own level by private treaty and pay the money to bank due amount to stop the auction of Shop.
1641627544
Section 13(8) of the SARFAESI Act, after its substitution by Act 44 of 2016 with effect from 01.09.2016, provides that, where the amount of dues, together with all costs, charges and expenses incurred by him, is tendered to the secured creditor at any time before the date of publication of the notice for public auction or inviting quotations or tender from public or private treaty, for transfer by way of sale of the secured assets, the secured asset shall not be transferred for sale by the secured creditor. Prior to its substitution by Act 44 of 2016, Section 13(8) stipulated that if the dues of the secured creditor, together with all costs, charges and expenses incurred by him, are tendered to the secured creditor at any time before the date fixed for sale or transfer, the secured assets shall not be sold or transferred by the secured creditor, and no further steps shall be taken by him for transfer or sale of that secured asset. After its substitution, Section 13(8) of the SARFAESI Act recognises the respondent bank's right to tender, from public or private treaty, for the transfer by way of sale of the secured asset. The decision whether or not to tender the secured asset by way of private treaty, for its transfer by way of sale, is at the discretion of the bank/financial institution. The right conferred on the borrower is to redeem the property at any time before such an exercise is undertaken by the bank/financial institution. Section 13(8) does not obligate the respondent-bank to sell the subject property by private treaty, even for receipt of the OTS amount which is far less than the total amount due from the petitioners. While Section 13(8) of the SARFAESI Act acknowledges the power of the bank/financial institution to tender the secured asset, for sale by private treaty, it does not obligate the bank to release the property piecemeal as and when proportionate payment is made by the borrower.