Section 5 in The Assam Co-operative Agricultural and Rural Development Bank, Rules, 1961
5. Seizure and sale of distrained property.
- In the seizure and sale of the produce of the mortgage land including the standing crops thereon, the following procedure shall be observed-(a)Service of demand notice on the defaulter. - As soon as a distraint in made, the distrainer shall deliver to the defaulter a list of the property distrained and shall give him intimation in writing of the place and the day and hour at which the distrained property will be sold :Provided that where it is not possible to deliver such lists to the defaulter, the distrainer shall deliver such lists to some adult male member of the defaulter's family ore to the authorised agent or the defaulter and when such delivery is not possible, shall affix the list on some conspicuous part of his residence and also at the place where the property is kept endorsing thereon the place, the day and hour at which property will be sold :Provided further that where the defaulter does not reside in the village in which the land is situated the standing crops or the product of which are distrained, the list shall be affixed on the land and a copy of it shall be sent by registered post to the defaulter to his last known place of residence ;(b)Custody, preservation and sale of distrained, property. - The distrainer shall make proper arrangements for custody and preservation of the distrained property during the interval between the distraint and sale. The applicant or the president, secretary or manager of the Mortgage Bank concerned, if he is authorised in this behalf, by the applicant shall, if required by the distrainer, undertake the custody and preservation of the property distrained and shall be responsible for any loss or damage to the distrained property owing to the applicant, negligence.(c)Time of distress. - The distress shall take place after sun-rise and before sun-set.(d)Disposal of distrained crops. - If crops or ungathered products, of the land belonging to the defaulter are distrained, the distrainer may cause them to be sold when fit for reaping or gathering or at his option may cause them to be reaped or gathered, in due season and stored in proper places until sold.(e)Power of distrainer to force open places. - It shall be lawful for the distrainer to force open any stable, cowshed, granary, godown, outhouse or other building, and he may also enter any dwelling house the outer door of which may be opened and may break open the door of any room in such dwelling house for the purpose of distraining the produce of the mortgaged land lodged therein provided always that is shall not be lawful for such distrainer to break open or enter any apartment in such dwelling house appropriated to the women except as hereinafter provided.(f)When police help is to be requisitioned in forcing open places. - Where a distrainer may have reason to suppose that produce of the mortgaged land is lodged within a dwelling house, the outdoor of which may be shut, or within any apartments appropriated to woman which by the usages and customs of the country are considered private, the distrainer shall represent the fact to the officer-in-charge of the nearest police station-(i)On such representation, the officer-in-charge of the said station shall send a police officer to the spot, in the presence of whom, the distrainer may force open the outer door of such dwelling house in like manner as he may break open the door of any room within the house except the apartments appropriated to the woman.(ii)The distrainer may also in the presence of the Police Officer after due notice given for the removal of women within an apartment meant for women, and after furnishing means for their removal in a suitable manner (if they be women of rank who, according to the usage and customs of the country cannot appear in public) enter the woman apartments for the purpose of distraining the produce of the mortgaged land if any, deposited therein, but such property if found, shall be immediately removed from such apartments after which they shall be left free to the former occupants.(g)Due Proclamation and conduct of sale of distrained property. - The distrainer shall on the day previous to and on the day of sale cause proclamation of the time and place of the intended sale to be made by beat of drum in the village in which the defaulter resides or the produce is kept and in such other place or places as the distrainer may consider necessary to give due publicity to the sale.(h)Immediate sale of perishable articles. - No sale shall take place until after the expiry of the period of 15 days from the date of the the service of the demand referred to in Section 9 of the Act ; provided that when the property seized is subject to speedy or natural decay, the distrainer may sell it at any time before the expiry of the said period of 15 days.(i)How sale is conducted. - At the appointed time and place, the distrainer shall sell in public auction the distrained property or such part thereof as may be necessary, in one or more lots as the distrainer may consider desirable and dispose of the same to the highest bidder.The distrainer may in his discretion postpone the sale to a specified day and hour, recording the reasons for such postponement. Where a sale is so postponed for a longer period then seven days, a fresh proclamation under clause (f) shall be made unless the defaulter consents to waive it.(j)Deposit of purchase money of distrained property. - The property shall be paid for in cash at the time of sale or soon as thereafter as the distrainer shall appoint and the purchaser shall not be permitted to carry away any part of the property until he has paid for it in full.(k)Resale of distrained property in case of default. - If the purchaser fails in the payment of purchase money, the property shall be resold and the proceeds of such resale shall be applied in the manner provided in Section 10. Any deficiency of price which may happen on the resale and all expenses attending such resale shall, at the instance of either the applicant or the defaulter be recoverable from the defaulting purchaser (under the provisions relating to the execution of an award) as an arrear of land revenue.(l)Procedure against forcible removal of distrained property. - Where on an application made in this behalf, it is proved to the satisfaction of any civil Court of competent jurisdiction that any property distrained under these rules has been forcibly or clandestinely removed by any person, the Court may order forthwith such property to be restored to the distrainer.(m)Withdrawal of distress on payment of amount due with expenses. - When prior to the day fixed for sale, a defaulter or any person acting on his behalf or any person claiming an interest in the property distrained pays the lull amount due including interest and other expenses incurred in distraining and proclaiming the sale the distrainer shall not proceed with the sale and shall release the property forthwith to such persons.(n)Investigation of claims and Postponement of sale of distrained property. - (i) Where any claim is preferred by any person other than the defaulter to any right or interest in the distrained property, the distrainer shall investigate the claim and dispose of the same on its merits :Provided that no such investigation shall be made where the distrainer considers that the claim has been purposely or unnecessarily delayed to suit the design of the person preferring the claim.(ii)Where the property to which the claim applies has been advertised for sale, the distrainer may postpone the sale pending investigation.
