Blue Dolphin Limited (Corporate Debtor) is under Liquidation as per the provisions of Insolvency and Bankruptcy Code, 2016. The Corporate Debtor has only one secured creditor namely in BQ Bank. In one of the meetings of

CS Professional · Insolvency - Law and Practice · PYQS · December 2024
Blue Dolphin Limited (Corporate Debtor) is under Liquidation as per the provisions of Insolvency and Bankruptcy Code, 2016. The Corporate Debtor has only one secured creditor namely in BQ Bank. In one of the meetings of Stakeholders Consultation Committee, the Liquidator of the Corporate Debtor informed the BQ Bank that the secured properties of the Corporate Debtor may not be sufficient to satisfy the amount of loan lent to the Blue Dolphin Limited. In view of the above situation, BQ Bank, at its internal meeting, discussed and decided to recover the balance amount through exercising the provisions of SARFEASI Act, 2002 on movable, secured assets of the Corporate Guarantors who were additionally secured to the BQ Bank by the Corporate Debtor. Black Dolphin Private Limited has given its movable property in its Unit 'A' as additional security for credit facilities available by Corporate Debtor. The BQ Bank has entrusted the job of recovery through movable properties of Black Dolphin Private Limited to Ishan, a newly appointed Recovery Officer. Ishan being your close friend has approached you to clarify his doubts on enforcement of security interest as per the SARFAESI Act, 2002 and the Rules made thereunder. Ishan has put forth following queries to clarify his doubts on the provisions of SARFAESI Act and Rules made thereunder: What procedures are to be followed for the possession of movable property of the Guarantor/Borrower?

Answer & Explanation:

According to Section 13(2) of the SARFAESI Act, 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 a non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under sub-section (4) which includes (a) taking possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset; Rule 4 of the Security Interest (Enforcement) Rules, 2002, provides that where the possession of the secured assets to be taken by the secured creditor are movable property in possession of the borrower, the authorized officer shall take possession of such movable property in the presence of two witnesses after a Panchnama drawn and signed by the witnesses as nearly as possible in Appendix I to The Security Interest (Enforcement) Rules, 2002.

Topics: SARFAESI Act, 2002

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