Considering representation under S. 13(3A) SARFAESI Act mandatory, time provided to communicate response thereon is not: Del HC

Delhi High Court: A Single Judge Bench comprising of Vibhu Bakhru, J. dismissed a petition seeking a writ to be issued to set aside the reply under Section 13 (3A) of  Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) given by the respondent Bank against the representation filed by the petitioner.

The petitioner challenged the proceedings instituted by the Bank for enforcement of the security interest under the SARFAESI Act. The petitioner had defaulted to the payment of certain loans payable to the Bank and resultantly he was declared a non-performing asset. He was issued a notice by the Bank under Section 13(2). The petitioner made a representation thereagainst. The Bank responded to the said representation, but it was received by the petitioner beyond a period of 15 days from the date of communication of the representation as provided under Section 13(3-A). The petitioner claimed that due to the said lapse, the proceedings under SARFAESI were rendered valid.

The only question for consideration before the Court was whether the delay by a lender in communicating its decision to reject a representation made by a borrower under Section 13(3-A) vitiates the proceedings initiated in terms of Section 13 of the SARFAESI Act.

The High Court after giving due consideration to the law on the subject held that the said proceedings did not become infructuous merely due to delay in communicating the response as aforementioned. The Court perused various decisions of the Supreme Court including ITC Ltd. v. Blue Coast Hotels Ltd., 2018 SCC OnLine SC 237 wherein it was held that provisions under Section 13(3-A) were mandatory and failure on the part of the creditor to respond to the representation of borrower vitiate the recovery proceedings. Nonetheless, it also examined the relevant facts and concluded that the creditor had, in fact, examined the borrower’s representation even though it had failed to furnish a reply to the representation made by the borrower. In view of the above, the Supreme Court held that the borrower was not entitled to discretionary relief under Article 226 of the Constitution of India. Relying on the said decision, the High Court held, the requirement that the secured creditor considered the objection/representation of the borrower as mandatory but the requirement, that he communicates its conclusion within 15 days cannot be held to be so. In view thereof, the petitioner’s contention was held to be sans merit. The petition was then dismissed. [Kannu Aditya India Ltd. v. SBI, 2018 SCC OnLine Del 12208, Order dated 26-10-2018]

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