Answer: According to Rule 8(1) of the Security Interest (Enforcement) Rules 2002, where the secured asset is an immovable property, the authorised officer shall take or cause to be taken possession, by delivering a possession notice prepared as nearly as possible in Appendix-IV to the said rules, to the borrower and by affixing the possession notice on the outer door or at a conspicuous place of the property.

Answer: According to Rule 8(3) of the Security Interest (Enforcement) Rules 2002, in the event of possession of immovable property is actually taken by the authorised officer, such property shall be kept in his own custody or in the custody of any person authorised or appointed by him, who shall take as much care of the property in his custody as an owner of ordinary prudence would, under the similar circumstances, take of such property. According to Rule 8(4) of the Security Interest (Enforcement) Rules 2002, the authorised officer shall take steps for preservation and protection of secured assets and insure them, if necessary, till they are sold or otherwise disposed of.

Answer: It has been held in the case of HDFC Bank –Versus- Consumer Forum (2011)2 Bank. Journal page 320 that Sarfaesi action cannot be challenged in Consumer Forum.

Answer : It has been held by the Supreme Court of India in the case of Standard Chartered Bank Versus V. Noble Kumar reported in (2013)9 Supreme Court Cases Page 620, that a secured creditor can take possession in three ways – 

By directly taking possession under Rule 8(1) of Security Interest ( Enforcement) Rules, 2002 

By approaching Magistrate under Section 14 of Sarfaesi Act, 2002 if resistance is offered 

By directly approaching Magistrate under Section 14 of Sarfaesi Act, 2002 without making attempt to take possession of its own.

Answer : Sarfaesi Act and Sarfaesi Rules do not provide any guidelines as to when symbolic possession may be taken or when physical possession may be taken.

Answer : In the case of Transcore –Versus- Union of India reported in AIR 2007 Supreme Court page 712 (at page 736), the Supreme Court of India held as follow:- 

“Till the time of issuance of sale certificate, the authorised officer is like a court receiver under Order XL, Rule 1, CPC. The court receiver can take symbolic possession and in appropriate cases where the court receiver finds that a third party interest is likely to be created overnight, he can take actual possession even prior to the decree. The authorized officer under Rule 8 has greater powers than even à court receiver as security interest in the property is already created in favour of the banks/FIs. That interest needs to be protected.”

Answer: It is not mandatory for the secured creditor to obtain an order under Section 14 of the Sarfaesi Act, 2002. It is open to the secured creditor to take physical possession of the secured assets without obtaining an order under Section 14 of the Sarfaesi Act, 2002. However, while taking physical possession of the secured assets the secured creditor cannot use force, cannot take the help of musclemen and the secured creditor cannot get the help of police for taking possession of the secured assets.