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Judgment
P.K. Bhasin, J
The appellant along with her husband, son and daughter-in-law had taken housing loan of Rs. 14,50,000/- from the respondent company sometime in the year 2005 under 'Apna Ghar Yojna' and the same was re-payable in 20 years and the equal monthly instalments for the first eight years were to be of Rs. 15,343/- and Rs. 7,993/- for next 12 years. The loan was secured by way of creation of equitable mortgage of a plot of land in Karnal (Haryana) by the appellant. Loan was taken for construction over said plot. The appellant and her family members, however, defaulted after sometime in repayments of the instalments and that resulted in the declaration of her account as Non-Performing Asset (NPA) followed by issuance of a notice dated 10.12.2011 under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act' in short). Since the appellant and other borrowers did not make the payment of the outstanding dues of Rs. 11,00,357/- as demanded from her by the respondent in its notice under Section 13(2) within the given period of sixty days the respondent proceeded to enforce its right in the mortgaged/secured asset under Section 13(4) of SARFAESI Act by giving to the appellant a notice under Section 13(4) dated 13.2.2012 requiring her to deliver physical possession of the mortgaged property on 21.2.2012 failing which the Authorised Officer of the Company will take possession on or after 21.2.2012. The respondent had endorsed that letter to the police also for police help in getting physical possession of the mortgaged on 21.2.2012. Feeling aggrieved by the action of the respondent in threatening to take physical possession of her property which she had mortgaged with the respondent and apprehending her physical dispossession therefrom with police and the appellant approached Debts Recovery Tribunal ('DRT' in short), Chandigarh with an application under Section 17(1) of SARFAESI Act (being S.A. No. 33/2012) inter alia on the allegations that the respondent Bank had issued notice under Section 13(4) of SARFAESI Act before even the expiry of statutory period of sixty days from the date of receipt of respondent's notice under Section 13(2) by her, which she received on 17.12.2011 and before even taking of any decision on her representation submitted to the Bank against the notice under Section 13(2).
The respondent resisted the application (SA) under Section 17(1) filed by the appellant before the DRT by filing its reply contending inter alia that its action under Section 13(4) of SARFAESI Act was perfectly legal since the appellant had failed to file any objections against the notice dated 10.11.2011 under Section 13(2) received by her on 16.12.2011, within sixty days period from the date of issue of that notice and so rightly the respondent had issued possession notice under Section 14 on 13.2.2012. The appellant then only respondent to the notice under Section 13(2) by submitting meritless objections on 13.2.2012 through e-mail which objections were in any case rejected by the respondent vide its letter dated 22.2.2012.
The DRT finally rejected the appellant's S.A. vide order dated 25.1.2016 and it is that order which is now being challenged by the appeal by filing the present appeal under Section 18 of SARFAESI Act. The impugned order reads as under:
"1. The appellants have filed this application under Section 17 of the Securitization and Reconstruction of Financial assets and Enforcement of Security Interest Act, 2002 (the SARFAESI Act) being aggrieved from the measures taken by the respondent Bank under the SARFAESI Act.
The facts in brief relevant for disposal of the SA are that the applicant is owner of the property bearing No. House, No. 182, Sector 8, Urban Estate, Karnal, Haryana which was mortgaged against the housing loan obtained from the respondent Bank. It is pleaded in SA that a demand notice dated 10.12.2011 dispatched on 15.12.2011 was received by the applicant on 17.12.2011 (Annexure P.1). It was further pleaded that as per Section 13 of the SARFAESI Act, a clear 60 days is required informing the borrower about the default and their intention to enforce the securities which has not been done in the present case. It is stated that notice under Section 13(2) of the SARFAESI Act is dated 10.12.2011 which has been dispatched on 15.12.2011 vide speed post and as the applicant was not available on 16.12.2011, the same has been delivered to the applicant on 17.12.2011, hence notice is liable to be quashed. Thereafter the applicant filed objections under Section 13(3A) of the SARFAESI Act through speed post, courier as well as e-mail dated 13.2.2012 (Annexure P.3). Whereas the Bank acted arbitrarily by initiating action under Section 13(4) of the SARFAESI Act by issuing possession notice dated 13.2.2012 which came to the notice of the applicant on 14.2.2012 before expiry of 60 days of demand notice and fixed the date of taking possession of secured asset on 21.2.2012 and in the meanwhile objections of the applicant left undecided (Annexure P.5) and thus action taken by the Bank on the basis of such demand notice, is invalid and liable to be quashed.
In written reply, the respondent Bank has pleaded that the applicant was sanctioned a housing loan of Rs. 14.50 lacs which repayable over 20 years. The present applicant stood as surety along with other borrowers the property in question. The amount of Rs. 11,00,357 mentioned in the demand as well as possession notice has been rightly calculated, therefore said notices are valid and legally enforceable. It is further pleaded that a demand notice under Section 13(2) of the SARFAESI Act calling upon the borrowers to pay the amount of notice within 60 days was issued on 10.12.2011 (Annexure R. 1) which the applicant failed to comply with. It is also pleaded that objections filed by the applicant under Section 13(3A) of the SARFAESI Act were duly replied vide letter dated 22.2.2012 through registered post (Annexure R. 2). Thereafter the respondent Bank resorted to the provisions of Section 13(4) of the SARFAESI Act and issued possession notice dated 13.2.2012 which also affixed on outer door of the house and photographs were taken. The ' Bank also sent the possession notice via registered post on 15.12.2012 and endorsement was duly received by the respondent Bank (Annexure P.3). It is also pleaded that the borrower defaulted in the repayment of the credit facility, thereafter account was rightly declared as NPA. Despite various reminders the applicants failed to regularise the account and irregularities in the account can be seen from the statement of account as per which total outstanding against the applicant and other borrowers is Rs. 12,15,250 as on 30.9.2013 (Annexure R. 4).
The Counsel for the applicant has argued that the Bank who has issued notice under Section 13(2) of the SARFAESI Act dated 10.12.2011 (Annexure P/1) and same was dispatched on 15.12.2011 and was received by the applicant on 17.12.2011, was against the provisions of the SARFAESI Act as the Bank has not followed the due procedure by giving clear 60 days time was given to the applicant. Even no reply to the objections has since filed, subsequent action of the respondent Bank is bad. The Counsel for the applicant further pointed out towards conduct of the respondent Bank that they did not choose to file reply when last opportunity was granted to file the same within 2 weeks vide order dated 14.8.2012 and ultimately their defence was struck of. But it was later on when 1A was filed by the Bank, reply was taken on record which shows that Bank is itself delaying the proceedings on its own just to cover up their lacunae. It is admitted fact that H. No. 182, Sector-8, Urban Estate, Karnal was mortgaged with the Bank but objections when filed by the applicant on 13.2.2012, the Bank did not choose to filed by the applicant on 13.2.2012, the Bank did not choose to file reply to these objections within statutory period of 7 days. The Counsel for the applicant has also took support from following citations:
Gannets India Exports & Anr. v. Dhanlakashmi Bank Ltd. & Anr., (BDRT/DRAT-CHN/2007/03/271) decided by DRAT, Chennai.
Tetulia Coke Plant Pvt. Ltd. v. Bank of India, I (2013) BC 493, Jharkhand High Court.
Jayant Agencies v. Canara Bank & Ors., III (2011) BC 297 Jharkhand High Court.
Malhotra Tractors & Anr. v. State Bank of India, I (2010) BC 176 (DB), Allahabad High Court.
Since this was the only issue which was hard pressed by the applicant, Counsel for the respondent Bank on the other hand side has rebutted the same by stating that admittedly the demand notice was issued on 10.12.2011 which was duly dispatched and even has been received by the applicant in time. As the applicants were approaching the Bank from time-to-time for settlement they very much aware about the initiation of proceedings. Counsel for the respondent Bank has placed on record postal receipts dated 15.12.2011 when notices were dispatched which were duly acknowledged by the applicant vide acknowledgement (Annexure R. 1). In fact Counsel for the respondent Bank has tried to prove that December month being of 31 days, there was a clear 60 days notice to the applicant to which the applicant choose to file objections after expiry of 60 days on 15.2.2012 when the respondent Bank approached the applicant for taking the physical possession on 15.2.2012. The Counsel for Bank also took support from postal receipts which were also duly acknowledged by the applicant. The contention of the respondent Bank was that applicant choose to file objections on very same day when respondent Bank issued notice on 13.2.2012. Even these objections were also replied within 7 days which he has placed on record as Annexure R. 3.
I have heard learned Counsel for the parties at length and perused the record.
Before proceeded further I have myself perused the documents on record. The applicant has put her all energy to established that the Bank has not given clear 60 days demand notice and issued possession notice on 13.2.2012 for mortgaged residential house and further threatened to take physical possession of the said house based on postal receipts which the applicant claimed to dispatched on 15.12.2011. Before the prayer of the applicant could be considered, I have also perused the proceeding sheets whereby the applicant has approached, this Court has passed an order on the inclination of the applicant to repay the dues and to facilitate the recovery of the Bank and was directed to deposit Rs. 1.00 lac which the applicant has claimed to have deposited as per directions given by this Court. But whether these relaxations which were given to the applicant to facilitate the recovery of the Bank, could be considered as endless and forever granted relaxations in their hands? Certainly, applicant who chose to raise an issue for the irregularity on the part of the respondent Bank, even failed to prove his bona fide that why she has not paid a single penny to the respondent Bank after deposit of initial amount to facilitate the recovery of the respondent Bank once relaxations were showered upon the applicant. Apart from it while going through the documents, I am satisfied that respondent Bank has issued notice under Section 13(2) of the SARFAESI Act on 10.12.2011 which was dispatched on 15.12.2011 and on the other side possession notice which was issued to the applicant but despite that she chose not to file objections within time and the objections which the applicant has claimed to have filed on 13.2.2012 even same have been replied by the Bank vide letter dated 22.2.2012 which is also as per provisions and rules prescribed under the Act (Annexure R. 2). Moreover the applicant who choose this platform to stall the recovery action cannot be given free endless time to ride rough after the relaxations. The applicant never displayed any sincerity and seriousness to repay the dues and made every attempt to deliberately and unjustly prolonging the litigation. Rather it is a well settled position that "Rules or procedure are mere maids of justice. Courts of law are required to do justice between the parties and not resort to some technicalities to thwart ends of justice."
Here the applicant after taking relaxations which were given to facilitate recovery of the Bank, failed to prove their bona fide and also the conduct of the applicant too is not appreciable and delinquent litigant who has not come to the Court with clean hands cannot be allowed to ride rough with the procedural law so as to make it subservient oblique motives.
Thus, on the basis of foregoing discussion, material and evidence available on record and considering the submissions made by the both the Counsel, finding no merit in the SA, the same stands dismissed. According SA stands disposed of along with all pending IAs if any.
Copy of this order be given to the parties as per rules and record be consigned.
Dated: 25.1.2016
Sd/-
Presiding Officer,
DRT-I, Chandigarh
Order dictated, corrected, signed and pronounced by me in the open Court.
Dated 25.1.2016"
The main argument of the learned Counsel for the appellant before this Tribunal was that the notice dated 10.11.2011 under Section 13(2) of SARFAESI Act was admittedly dispatched by post by the respondent on 15.12.2011 and the same was received by the appellant on 17.12.2011 and she had submitted her objections against that notice to the respondent through e-mail as well as by post on 13.2.2012 but the respondent without taking any decision on those objections had proceeded to have recourse to Section 13(4) of SARFAESI Act by issuing possession notice dated 13.2.2012 and it was only after issuance of that notice that the respondent took a decision for the rejection of her objections and served upon the appellant its decision dated 22.2.2012. Thus, according to the appellant's Counsel, not only the respondent's action under Section 13(4) of SARFAESI Act but even the declaration of appellant's account as NPA and notice under Section 13(2) are liable to be declared illegal and unenforceable.
On the other hand, learned Counsel for the respondent submitted that the period of sixty days within which a defaulting borrower is required to file objections against the notice under Section 13(2) commences from the date of the notice which in the present case was 10.11.2011 and the appellant having not filed any objections within sixty days from that date the Bank was justified in issuing possession notice under Section 13(4) of SARFAESI Act on 13.2.2012 which date was after the expiry of sixty days and so no fault can be found with that action of the Bank and, therefore, the DRT had rightly dismissed the S.A. and there is no scope for any interference in the matter by this tribunal in this meritless appeal.
The controversy between the parties centres around the interpretation of relevant provisions of Section 13 of SARFAESI Act and the same are therefore, reproduced below:
"13. Enforcement of security interest:
(1) Notwithstanding anything contained in Section 69 or Section 69-A of the Transfer of Property Act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of Court or Tribunal, by such creditor in accordance with the provisions of this Act.
(2) Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor, as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under Sub-section (4).
(3) The notice referred to in Sub-section (2) shall give details of the amount payable by the borrower and the secured assets intended to be enforced by the secured creditor in the event of non-payment of secured debts by the borrower.
(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 17-A.
(4) In case the borrower fails to discharge his liability in full within the period specified.
In Sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:
(a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset;
(b) take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset:
Provided that the right to transfer by way of lease, assignment or sale shall be exercised only where the substantial part of the business of the borrowers is held as security for the debt:
Provided further that where the management of whole of the business or part of the business is severable, the secured creditor shall take over the management of such business of the borrower which is relatable to the security for the debt.
(c) appoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor;
(d) require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt.
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
xxx xxx xx"
A bare reading of these parts of Section 13, in my view, are sufficient to allow this appeal and to quash the notice dated 13.2.2012 under Section 13(4) issued by the respondent and consequently the respondent cannot be allowed to proceed on the basis of that notice dated 13.2.2012 only on the short ground that notice was issued before the expiry of sixty days period from the date of receipt of notice dated 10.12.2011 under Section 13(2) by the appellant. Admittedly, the notice under Section 13(2) was not tendered personally to the appellant but was sent to her by post on 15.12.2011 and as per the case of the appellant, and which was not disputed on behalf of the respondent by its Counsel, the same was received by her on 17.12.2011. Therefore, the appellant could make the payment of the amount demanded within sixty days from 17.12.2011 and the respondent could not have proceeded further either under Section 13(4) or Section 14 of SARFAESI Act before the expiry of that period of sixty days for taking possession of the mortgaged property of the appellant. The period of sixty days even from 17.12.2011, when the notice dated 10.12.2011 was actually received by the appellant, was to expire on 14.2.2012 and, therefore, the respondent could not have the notice under Section 13(4) on 13.2.2012.
The submission of the learned Counsel for the respondent, however, was that Section 13(2) itself provides that the borrower has to make payment within sixty days from the date of notice under Section 13(2) irrespective of the date of its actual receipt by the defaulting borrower and going strictly by the language of Section 13(2) the action of the respondent in issuing notice under Section 13(4) on 13.2.2012 was perfectly legal since by that time the statutory period of sixty days had expired and the appellant had neither made any payment nor had she made any representation to the respondent against the notice under Section 13(2) within sixty days period from 10.12.2011 which was the date of the notice under Section 13(2). Alternatively, it was also submitted that since the notice under Section 13(2) was dispatched by post on 15.12.2011 and the notice under Section 13(4) was dispatched by post on 15.2.2012, as has been accepted by the DRT also in the impugned order it cannot be said that notice under Section 13(4) was issued before the expiry of sixty days period.
However, this argument advanced by the learned Counsel for the respondent has no force and is liable to be rejected and if such an interpretation of Section 13(2) is accepted it will lead to be absurd results. How can the period of sixty days for making the payment by any defaulting borrower commence unless the demand notice is actually received by the borrower. Suppose, after signing of notice under Section 13(2) by the authorised officer on behalf of the Bank or some financial institution like the respondent herein, is kept in the table drawer of the signing authority and is neither sent for personal delivery to the addressee nor is dispatched by post for some days, may be inadvertently and not intentionally, can it be said that the period during which the notice remained in the custody of the issuing authority will also be counted to the detriment of the borrower and that period will get reduced from the sixty days time to be given to the borrower for clearing the Bank's dues and in case of default the Bank or the financial institution will get the right to take possession on the expiry of period of sixty days from the date of the notice under Section 13(2) or its despatch by post. The answer has to be an emphatic 'No'. Neither the date of issuance of the notice nor of its despatch can be accepted to be the starting points as both the dates can be pressed into service by the Banks or financial institutions to deny the borrower opportunity of filing objections against the notice under Section 13(2) and then suddenly the possession of borrower's properties can be taken.
It is now well settled by a number of judgments of the Hon'ble Supreme Court that if any interpretation of statutory provision going by its language as it stands leads to absurdity or makes the provision ineffective and does not serve the object for which it was introduced in the statute book then that interpretation has to be avoided.
In Sirajul Haq Khan & Ors. v. The Sunni Central Board of Waqf, AIR 1959 SC 198 : 1958 (SLT Soft) 113, the Hon'ble Supreme Court had observed that:
"......Where the literal meaning of the words used in a statutory provision would manifestly defeat its object by making a part of it meaningless and ineffective, it is legitimate and even necessary to adopt the rule of liberal construction so as to give meaning to all parts of the provision and to make the whole of it effective and operative."
In a later judgment in the case of Reserve Bank of India v. Peerless General Finance & Anr., AIR 1987 SC 1023 : 1987 (SLT Soft) 166, it was again observed by the Apex Court that:
"......Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place....."
Prior to 2004 there was no provision in the SARFAESI Act giving a chance to defaulting borrowers to make representations and requiring the Banks/financial institutions to consider the representations made by borrowers on receipt of notice under Section 13(2). However, in the year 2004 Section 13(3A) of SARFAESI Act was added in this Act after the Hon'ble Supreme Court had in the case of Mardia Chemicals Ltd. Etc. v. Union of India & Ors. Etc. Etc., 110 (2004) DLT 665 (SC) : II (2004) BC 397 (SC) : II (2004) SLT 991, made the following observations in its judgment while examining the challenge to the very validity of SARFAESI Act:
"45. In the background we have indicated above, we may consider as to what Forums or remedies are available to the borrower to ventilate his grievance. The purpose of serving a notice upon the borrower under Sub-section (2) of Section 13 of the Act is, that a reply may be submitted by the borrower explaining the reasons as to why measures may or may not be taken under Sub-section (4) of Section 13 in case of non-compliance of notice within 60 days. The creditor must apply its mind to the objections raised in reply to such notice and an internal mechanism must be particularly evolved to consider such objections raised in the reply to the notice. There may be some meaningful consideration of the objections raised rather than to ritually reject them and proceed to take drastic measures under Sub-section (4) of Section 13 of the Act. Once such a duty is envisaged on the part of the creditor it would only be conducive to the principles of fairness on the part of the Banks and financial institutions in dealing with their borrowers to apprise them of the reason for not accepting the objections or points raised in reply to the notice served upon them before proceeding to take measures under Sub-section (4) of Section 13. Such reasons, overruling the objections of the borrowers, must also be communicated to the borrower by the secured creditor. It will only be in fulfillment of a requirement of reasonableness and fairness in the dealings of institutional financing which is so important from the point of view of the economy of the country and would serve the purpose in the growth of a healthy economy. It would certainly provide guidance to the secured debtors in general in conducting the affairs in a manner that they may not be found defaulting and being made liable for the unsavoury steps contained under Sub-section (4) of Section 13. At the same time, more importantly we must make it clear unequivocally that communication of the reasons not accepting the objections taken by the secured borrower may not be taken to give an occasion to resort to such proceedings which are not permissible under the provisions of the Act. But communication of reasons not to accept the objections of the borrower, would certainly be 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 viz. secured assets without intervention of the Court. Such a person in respect of whom steps under Section 13(4) of the Act are likely to be taken cannot be denied the right to know the reason of non-acceptance and of his objections. It is true, as per the provisions under the Act, he may not be entitled to challenge the reasons communicated or the likely action of the secured creditor at that point of time unless his right to approach the Debt Recovery Tribunal as provided under Section 17 of the Act matures on any measure having been taken under Sub-section (4) of Section 13 of the Act.
We are holding that it is necessary to communicate the reasons for not accepting the objections raised by the borrower in reply to notice under Section 13(2) of the Act more particularly for the reason that normally in the event of non-compliance with notice, the party giving notice approaches the Court to seek redressal but in the present case, in view of Section 13(1) of the Act the creditor is empowered to enforce the security himself without intervention of the Court. Therefore, it goes with logic and reason that he may be checked to communicate the reason for not accepting the objections, if raised and before he takes the measures like taking over possession of the secured assets etc.
This will also be in keeping with the concept of right to know and lender's liability of fairness to keep the borrower informed particularly the developments immediately before taking measures under Sub-section (4) of Section 13 of the Act. It will also cater the cause of transparency and not secrecy and shall be conducive in building an atmosphere of confidence and healthy commercial practice. Such a duty, in the circumstances of the case and the provisions is inherent under Section 13(2) of the Act."
These judgments of the Hon'ble Supreme Court on the interpretation of statutes and the importance of the rights of the borrowers under SARFAESI Act it goes without saying that the right of the borrowers to make a representation against notice under Section 13(2) cannot be rendered nugatory and remedies illusory by the Banks/financial institutions by serving notice under Section 13(2) on the borrowers just before the expiry of period of sixty days from the date of the notice. So, if the interpretation of this provision as sought to be put forth by the Counsel for the respondent in the present case to the effect that sixty days period contemplated under Section 13(2) would start to run against the borrower is accepted it will definitely make the provision of Section 13(3A), which is for the benefit of borrowers who may have genuine grievances against the declaration of their accounts as NPS and who want to justifiably contest the threatened action under Section 13(4) which can lead to their dispossession from the mortgaged properties, absolutely meaningless and so such an interpretation of Section 13(2) cannot be accepted at all.
The Tribunal below failed to appreciate the matter from this angle and appears to have gone against the appellant since she did not make any payment to the respondent as she had assured to the Tribunal while seeking interim relief. Now if the appellant had failed to comply with any condition imposed on her by the DRT while staying her dispossession the respondent was always at liberty to have that stay vacated which it does not appear to have done till the end. But the challenge of the appellant to the issuance of notice under Section 13(4) on the ground that it was issued before the expiry of sixty days from the date its receipt by her could not be rejected by the DRT by keeping the failure of the appellant to make any payment in mind. The appellant had a right to make entire payment or make any representation to the respondent against the demand raised till the last day of making payment and only thereafter the respondent could have recourse to Section 13(4) but that, that too only if the appellant had not made any representation and if any representation had been made the same had to be decided within a week by passing a reasoned order and communicating the same to the appellant and then action for taking possession of the secured asset could be taken.
The learned Presiding Officer of the DRT has also proceeded on the premise that since the notice under Section 13(2) was posted on 15.12.2012 by the respondent and the notice under Section 13(4) was dispatched by post on 15.2.2012, even though it had been issued on 13.2.2012, it could not be said that the respondent had initiated action under Section 13(4) before the expiry of sixty days period as contemplated under Section 13(2). This view of the DRT also cannot be endorsed as I have already held that the only interpretation of Section 13(2) which one can accept is that sixty days period would commence from the date when the notice is actually received by the borrower.
No other point was pressed by the learned Counsel for the appellant before this Tribunal.
Though the learned Counsel for the respondent had acted one judgment of the Hon'ble Supreme Court Standard Chartered Bank v. V. Noble Kumar, (2013) 9 SCC 620 : III (2016) DLT (Cri) 148 (SC) : IV (2016) SLT 531 : III (2016) BC 405 (SC) : III (2016) CCR 64 (SC), during the course of arguments but I need not go into that decision in view of the conclusion already arrived at by me regarding the illegality in the notice dated 13.2.2012 issued under Section 13(4) by the respondent. As a result of the foregoing conclusions, the impugned order of the DRT and the notice dated 13.2.2012 under Section 13(4) of SARFAESI Act have to be quashed and are hereby quashed. However, that will not preclude the respondent from having fresh recourse to its remedies under SARFAESI Act for taking possession of its secured asset albeit in accordance with the law in that regard. Similarly, if the appellant decides to challenge the fresh steps to be taken by the respondent for taking possession she will be at liberty to attack the respondent's letter of rejection of her representation to the notice under Section 13(2) of SARFAESI Act which she had not done in the present proceedings since before the respondent wrote to her on 22.2.2012 regarding rejection of her representation dated 13.2.2012 she had already approached the DRT by filing an S.A. in which order of status quo was passed by DRT on 16.2.2012.