• Section 13(3A)

Our loan was declared NPA and bank served us 13(2) notice. We gave full detailed 48 pages objections/representations. At the same time my mother was critically ill so I asked Branch officials as I was not in a position to move to visited her and collect the detailed 48 pages objections/representations. He gave me proper receiving and I handed over to him the copies for CMD as well as for AO.

Now they gave me 13(4) and case is in DRT. Banks legal counsel admitted that objections/representations were given and he also admitted that reply was not given but he argued that as it was given to Bank manager no reply is given by AO. 

We said that in SARFAESI act 2002, it is clearly evident that objections/representations by the borrowers can be given to either Secured Creditor or AO whereas reply shall only be given by AO. As the loan agreement was was signed between the bank manager who is the representative of the secured creditor handing of the copies to him is not wrong and case stands vitiated under section 13(3A). 

Please place your views over this siuation.
Asked 7 years ago in Property Law
Religion: Hindu

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6 Answers

1)the borrower is entitled to make his representation and raise his objections to the notice.

2) The authorised officer has to give a reply to the representation made and objections raised by the borrower within 7 days giving valid reasons if he rejects the representation made and objections raised by the borrower

3) in your case bank manger has acknowledged receipt of reply

4) After service of the notice if the borrower makes any representation or objection against the demand notice the A.O. should immediately send it to the secured creditor who in turn should send a reply or advise the A.0. to communicate reply to the borrower within “fifteen days” (recent amendment substituted for one week) of receipt of such representation or objection by registered post with ad or courier

5) handing over copies to secured creditor is sufficient service of objections . since no reply has been sent the case stands vitiated

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

(supreme Court in 2007(2) CTC 397 in the case of Industrial Development Bank of India Ltd., Chennai - 15 vs. Kamaldeep Synthetics Ltd., Chennai, the relevant portion reads as follows:

"8. In Mardia Chemicals case, the Supreme Court held that under Section 13(2) of the SARFAESI Act, it is incumbent upon the secured creditor to serve sixty days notice before proceeding to take action under sub-section (4) of Section 13 of the SARFAESI Act. After service of notice, if the borrower raises any objection or places facts for consideration of the secured creditor, such reply to the notice must be considered with due application of mind and the reasons for not accepting the objections, howsoever brief that may be, must be communicated to the borrower. The reasons so communicated shall only be for the purposes of the information/knowledge of the borrower without giving rise to any right to approach the DRT under Section 17 of the SARFAESI Act, at that stage. The Court explained that communication of reasons not to accept the objections of the borrower is for the purpose of his knowledge which would be a step forward towards his right to know as to why his objections have not been accepted by the secured creditor, who intends to resort to harsh steps of taking over the management/business of namely, the secured assets without intervention of the Court. Such person in respect of whom steps under Section 13(4) of the SARFAESI Act are likely to be taken cannot be denied the right to know the reason for non-acceptance of his objections. This will be in keeping with the concept of right to know the lender's liability of fairness to keep the borrower informed particularly of the developments before taking measures under sub-section (4) of Section 13 of the SARFAESI Act. The Court, however, made it clear that as per the provisions of the SARFAESI Act, the borrower will not be entitled to challenge the reasons communicated or the likely action of the secured creditor at the stage of communication of reasons, unless his right to approach the DRT as provided under Section 17 of the SARFAESI Act matures on any measure having been taken under sub-section (4) of Section 13 of the SARFAESI Act.

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

1. The lawyer of the Bank has cleverly put his said argument which has merit in it which your lawyer shall have to counter fittingly.

2. In your reply u/s13 (3A) of SARFAESI Act,2002 you have mentioned that you are replying to the notice issued by the Ao of the Bank u/s13(2) of the Act and have handed over the said reply addressed to the Branch manager.

3. the Branch Manager was duty bound in ordinary sense to send the said reply to appropriate authority being the A.O. in this case.

4. P.O. of DRT is not expected to buy the said argument.

5. If you do not get favourable order from DRT, file a Writ Petition before the High Court on this issue.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. In fact no such objection/argument has been heard by me from any Bank's Advocate so far an the said argument is not acceptable.

2. The Branch Manager was expected to send the said letter to the appropriate person.and he knew very well as to who is the A.O.

3. Ask him to submit copy of the said reply of yours in original to see the notes given on nit by the officials.

4. May be that he had sent the letter to the A.O. who had neglected to send you the reply for which the Bank's lawyer has submitted his said illogical argument.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

We said that in SARFAESI act 2002, it is clearly evident that objections/representations by the borrowers can be given to either Secured Creditor or AO whereas reply shall only be given by AO. As the loan agreement was was signed between the bank manager who is the representative of the secured creditor handing of the copies to him is not wrong and case stands vitiated under section 13(3A).

(3A) If, on receipt of the notice under sub-section (2), the

borrower makes any representation or raises any objection, the

secured creditor shall consider such representation or objection

and if the secured creditor comes to the conclusion that such

representation or objection is not acceptable or tenable, he

shall communicate within one week of receipt of such

representation or objection the reasons for non-acceptance of

the representation or objection to the borrower.

Provided that the reasons so communicated or the likely

action of the secured creditor at the stage of communication of

reasons shall not confer any right upon the borrower to prefer

an application to the Debts Recovery Tribunal under section 17

or the Court of District Judge under section 17A.”

Since you have invoked the provisions of law available as remedial measure to the subject dispute, you can wait and then plan to appeal the same before DRAT too.

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

5.0 on 5.0

Can you share any judgement from the apex court or from any High court regarding copies to secured creditor is sufficient service of objections. I will appreciate

In Devi Ispat Limited & Anr. ….Petitioners versus State Bank of India & Ors. ..Respondents =2014 (April.Part ) , the apex court has observed that the borrower had an alternate remedy to make a representation to the Bank under the provisions of Section 13(3A) of the Act and there was no reason to by-pass the statutory mechanism.

Madras High court in Badma Tool manufacturers Vs. Indian Bank (16.09.2000) observed as following:

Section 13(3A) was inserted after the judgment of the Supreme Court in Mardia Chemicals vs. Union of India (2004) 3 SCC 311. Section 13(3A) of the SARFAESI Act is mandatory and omission to consider representation is fatal. If the borrower makes any representation or raised any objection, the secured creditor shall consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, secured creditor shall communicate within one week of receipt of such representation or objection the reasons for non-acceptance of the representation or objection of the borrower.

There are various judgments supporting your stand.

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

5.0 on 5.0

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