The bank must decide objections under Section 13(3A) before proceeding under Section 13(4) of the SARFAESI Act, but valid service attempts and subsequent notice receipt validate proceedings.

JUDGMENT :

Yogendra Kumar Srivastava,J.

1. Counter affidavit and rejoinder affidavit to counter affidavit have been filed, which are taken on record.

2. Heard Ms. Prerna Surolia, learned counsel appearing on behalf of petitioners, Sri Vivek Kumar Singh, learned counsel appearing on behalf of respondent No.2 and Sri Kush Saxsena, learned counsel assisted by Sri Anuj Srivastava, learned counsel appearing on behalf of Bank of India and perused the record.

3. This is a writ petition under Article 226 of the Constitution of India wherein the writ petitioner has made the following prayer:-

i)- to issue writ, order or direction in the nature of mandamus commanding the respondent bank to decide the representation/objection dt. 05.10.2024 of the petitioner (Annexure 1 to the writ petition) by a reasoned order, in terms of Section 13(3A) of the Act, in view of the settled judicial precedent by the Hon'ble Apex court in the case of Madia Chemicals (supra)

ii)- to set aside proceedings initiated by the respondent bank under Section 13(4) of the Act in contravention to the non-compliance o the provisions of Section 13(3A) of the Act as well as in defiance of settled judicial precedent of the Hon'ble Apex Court in the case ofMadia Chemicals (supra)

iii)- to issue writ, order or direction in the nature of prohibition restraining the respondent bank from initiating further proceedings in terms of provisions of Section 13(4) of the Act in view of the settled judicial precedent of the Hon'ble Apex Court in the case of Madia Chemicals (supra)

4. The main contention of the petitioners, as argued by Ms. Prerna Surolia, counsel appearing on behalf of petitioners is that the representation/objection dated October 5, 2024 made by the petitioners under Section 13 (3A) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to 'the SARFAESI Act') was not decided by the bank before proceeding under Sections 13 (4) and 13(8) of the SARFAESI Act. The ancillary prayer is also with regard to setting aside the proceedings initiated by the respondent-bank under Section 13 (4) of the SARFAESI Act.

5. The facts that emerged from the perusal of the documents and after hearing learned counsel appearing on behalf of parties are as follows:-

a)- The representation/objection dated October 5, 2024 of the petitioners was decided by the bank authorities by an order dated October 17, 2024 and the said order was dispatched for delivery to the petitioner No.1 and to the other petitioners.

b)- Petitioners have submitted that this order was never received by any of the petitioners. Documents have been placed by both the parties to indicate that though service was attempted by the postal authorities, however, the attempt upon the petitioner nos. 2 and 3 was unsuccessful as the door of the residence of the petitioner nos. 2 and 3 were shut, and therefore, the said letter came back without service. With regard to the petitioner no.1, it appears that proper service may not have been made.

c)- Notice under Section 13(4) of the Act dated November 27, 2024 was issued upon the petitioners which was received by them.

d)- The petitioners approached the Debts Recovery Tribunal on December 13, 2024 and filed S.A. No.- 1087 of 2024.

e)- Subsequently, on January 02, 2025 the present writ petition was filed, and on January 08, 2025 the matter was taken up by this Court wherein a supplementary affidavit was filed by the petitioners in which for the first time the petitioners submitted that a S.A. application has been filed before the Debts Recovery Tribunal challenging the Section 13(4) notice. It is further noted that on that date a copy of the order dated October 17, 2024 passed under Section 13(3A) was handed over to counsel appearing on behalf of petitioners. Subsequent to January 08, 2025, the matter has been listed on seve