The High Court · 2023

Mr. N. A. Kuchai, Adv. Vs. J&K Bank Ltd th. its Chairman & Anr. ...Respondent(s) Through: Mr. A. Hanan, Adv. vice Mr. Z. A. Shah, Sr. Adv. CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE

O R D E R 17.05.2023

Heard learned counsel for the parties. The present petition has been filed challenging the Possession Notice dated 11th April 2023 issued under Section 13(4) of the SARFAESI Act, 2002 read with Rule 8(1) of the Security (Enforcement) Interest Rules, 2002 on the ground that the Bank has not considered the representation submitted by the petitioner pursuant to the notice issued under Section 13(2). It has been submitted that without considering the representation, the Bank could not have straight away proceeded to issue the possession notice.

Learned counsel appearing for the Bank fairly submits that the said representation submitted by the petitioner was not disposed of before the said possession notice issued under Section 13(2) of the SARFAESI Act.

Sub-Section 3(A) of Section 13 makes it very clear that 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 fifteen days of receipt of such representation or objection the reasons for non- acceptance of the representation or objection to the borrower.

Thus, what is required under law is that, first of all, the representation must be considered and secondly reasons must be assigned for rejecting if not acceptable and communicate the same to the borrower within a period of 15 days.

Since, it has been submitted by learned counsel appearing for the Bank that procedure has not been followed, we have no other option but to set-aside the possession notice issued under Section 13(4) of the SARFAESI Act.