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Non-compliance of Section 13(3A) of SARFAESI Act vitiates the proceedings as there was a delay in sending a reply by the Bank to the objections given by the Petitioner for notice under Section 13(2).

When the proceedings was taken under the Recovery of Debts due to Banks and Financial Institutions Act , (in short, "DRT Act") and an award was also passed in the Lok Adalat, the provisions of SARFAESI Act cannot be resorted to six years thereafter.

Claim of the Bank is barred by limitation.

7. Learned counsel for the Respondent Mr.Jayesh B.Dolia submitted that as per the decision of TRANSCORE VS. UNION OF INDIAK AND ANOTHER, (2008) 1 SCC 125, Bank is at liberty to proceed either under DRT Act or SARFAESI Act or under both. Drawing our attention to the various proceedings, learned counsel for the Respondent Bank submitted that the Petitioner has filed number of applications and also earlier writ petition and having failed in the earlier attempts, he has filed this writ petition. Drawing our attention to the reply of Respondent Bank dated 1.2.2010, learned counsel for the Respondent Bank has submitted that Section 13(3A) has been complied with. Drawing our attention to UNITED BANK OF INDIA VS. SATYAWATI TONDON AND OTHERS, (2010) BC 495 (SC), learned counsel for the Respondent Bank submitted that when a statutory forum is created by law for redressal of grievance the writ petition should not be entertained ignoring the statutory dispensation.

16. 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.

17. There is no force in the contention of the learned counsel for the Petitioner that Section 13(3A) has not been complied with. As pointed out earlier, Section 13(2) notice was issued on 19.11.2009, which was received by the borrower on 24.11.2009. Nearly two months after receipt of the notice, the borrower/writ Petitioner sent the reply on 20.1.2010. Even though notice by R.P.A.D. was sent on 20.1.2010, it is not known when it was received by the Bank. The Bank has sent its reply on 1.2.2010. In between, there were two week end holidays and also a public holiday i.e., on 26.1.2010. Therefore, it cannot be contended that the reply sent on 1.2.2010 is beyond statutory time of one week and that there was non-compliance of Section 13(3A).

18. In Mardia Chemicals vs. Union of India (2004) 3 SCC 311, the Apex Court stated that the reasons for not accepting the objections of borrower must be communicated to the borrower and the reasons so communicated shall only be for the purpose of the information/knowledge of the borrower without giving rise to any right to approach the Debts Recovery Tribunal under section 17 of the Act, at this stage. The Hon'ble Supreme Court explained that communication of reasons not to accept the objections of the borrower is for the purpose of knowledge which would be a step 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. Thus, the basic object of Section 13(3A) is to ensure the element of transparency and fair play in the implementation of the provisions of SARFAESI Act. In our considered view, there is no violation of the mandatory provision of Section 13(3A).