• Section 13(3A) of SARFAESI act

Sir

If reply by debtor is filed in 68 days instead of 15 days what happens as in the case of Blue coast hotels judgement by Hon.supreme court has clarified that 13(3a) is mandatory and not directory. would the case be quashed and the debtor has to start fresh proceedings
Asked 4 years ago in Business Law

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5 Answers

Sc has held that that the secured creditor “shall consider such representation or objection and further, if such representation or objection is not acceptable or tenable, he shall communicate the reasons for non-acceptance” thereof.

That the word ‘shall’ invariably raises a presumption that the particular provision is imperative. That further there is nothing in the legislative scheme of Section 13(3A) of SARFAESI Act which requires the Court to consider whether or not, the word ‘shall’ is to be treated as directory in the provision.

2) even if it is filed in 68 days representation should be considered by the secured creditor

3) if representation are not considered no reliefs would be granted

Ajay Sethi
Advocate, Mumbai
87938 Answers
6207 Consultations

5.0 on 5.0

Dear Client,

15 days is expected time observed by SC but in act it is only a week to respond if representation or objection is not acceptable or tenable, borrower shall be communicated within one week of receipt of such representation or objection the reasons for non‑acceptance of the representation or objection.

And till reply is pending, proceeding shall be kept in abeyance but not lapsed.

So, debtor will proceed in furtherance of 13(4).

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1[(3-A) 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 17-A.]

The Supreme Court Bench in the case has held that the language of sub-section (3A) is clearly impulsive. It states that the secured creditor “shall consider such representation or objection and further, if such representation or objection is not acceptable or tenable, he shall communicate the reasons for non-acceptance” thereof.

That the word ‘shall’ invariably raises a presumption that the particular provision is imperative. That further there is nothing in the legislative scheme of Section 13(3A) of SARFAESI Act which requires the Court to consider whether or not, the word ‘shall’ is to be treated as directory in the provision.

That as the Section stood originally, there was no provision for the above mentioned requirement of a debtor to make a representation or raise any objection to the notice issued by the creditor under Section 13(2).

That it could not be the intention of the Parliament for the provision to be futile and for the discretion to ignore the objection/representation and proceed to take measures, be left with the creditor. That a provision which requires reasons to be furnished must be considered as mandatory. Such a provision is an integral part of the duty to act fairly and reasonably and not fancifully.

That the provision under Section 13(3A) of SARFAESI Act must nonetheless be treated as ‘mandatory’.

The objection can be raised when the notice under 13 (2) is given if the representation is filed the bank ought to consider same.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Hi, it is advisable to file a petition in DRT ( debt recovery tribunal ) for seeking relief ..

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

The blue coast case is different to the question what you have raised.

In the impugned judgment the SVC has held that

"However, in the present case, the Court held that the creditor, IFCI was induced by Blue Coast not to take action against them through assurances and promises:

In these circumstances, we have no doubt that the failure to furnish a reply to the representation is not of much significance since we are satisfied that the creditor has undoubtedly considered the representation and the proposal for repayment made therein and has in fact granted sufficient opportunity and time to the debtor to repay the debt without any avail. Therefore, in the fact and circumstances of this case, we are of the view that the debtor is not entitled to the discretionary relief under Article 226 of the Constitution which is indeed an equitable relief."

No doubt the judgment states that

"We find the language of sub-section (3A) to be clearly impulsive. It states that the secured creditor “shall consider such representation or objection and further, if such representation or objection is not acceptable or tenable, he shall communicate the reasons for non-acceptance” thereof. We see no reason to marginalize or dilute the impact of the use of the imperative ‘shall’ by reading it as ‘may’. The word ‘shall’ invariably raises a presumption that the particular provision is imperative.",

whereas it cannot be entitle the debtor for quash on this grounds alone, it will depend on the discretion of the DRT also.

T Kalaiselvan
Advocate, Vellore
78097 Answers
1543 Consultations

5.0 on 5.0

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