ORDER :

Ujjal Bhuyan, J.

Heard Mr. Salvaji Raja Shekar Rao, learned counsel for the petitioner and Mr. Namavarapu Rajeshwara Rao, learned Assistant Solicitor General of India for respondent No.1.

2. Having regard to the subject matter of the Writ Petition and the order, which we propose to pass, issuance of formal notice to respondents No.2 and 3 is considered not necessary.

3. According to the petitioner, it is a Micro, Small and Medium Enterprise (MSME) engaged in the business of manufacturing import substitute defence related security equipments. Petitioner had availed loan from respondent No.3/Bank to the tune of Rs.1,52,00,000.00. However, the entire loan amount was not released to the petitioner. In the meanwhile, petitioner’s business suffered because of the lock down imposed on account of COVID-19 pandemic. Notwithstanding the same, respondent No.3/Bank classified the loan account of the petitioner as a Non Performing Asset (NPA) and initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the SARFAESI Act’). In this connection, notice under Section 13(2) of the SARFAESI Act was issued to the petitioner by respondent No.3 on 12.08.2021. It is stated that petitioner had submitted representation. It is apprehended that, without considering the representation of the petitioner, respondent No.3/Bank may proceed further under the SARFAESI Act to the prejudice of the petitioner. Hence, the writ petition.

4. Section 13 of the SARFAESI Act deals with enforcement of security interest. As per sub-section (1), notwithstanding anything contained in Section 69 or 69A of the Transfer of Property Act, 1882, any security interest created in favour of any secured creditor may be enforced by the secured creditor in accordance with the provisions of the SARFAESI Act, without the intervention of the Court, or the Tribunal. Sub-section (2) provides that in the event of default by the borrower, the secured creditor may require the borrower, by notice in writing, to discharge his liabilities in full to the secured creditor within sixty days from the date of the notice. Sub-section (3) mentions that the notice under sub-section (2) should provide the details of the liabilities 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.

5. Sub-section (3A) is relevant. It says that if, on receipt of any 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, the reasons for nonacceptance of the representation or objection. However, as per the proviso, the reasons so communicated or the likely action of the secured creditor, shall not confer any right upon the borrower to prefer an application to the Debts Recovery Tribunal under Section 17 or to the Court of District Judge under Section 17A of the Act.

6. This provision was examined by us in detail in W.P.No.25503 of 2021. The relevant portion of order dated 26.10.2021, passed therein, is extracted hereunder :

“5. A careful analysis of sub-section (3-A) of Section 13 of the SARFAESI Act would go to show that upon receipt of notice issued by the secured creditor under sub-section (2), the borrower has a right to make a representation, or raise any objection, as to the notice so issued. If the borrower exercises that right, then, it is incumbent upon the secured creditor to consider such representation or objection. The use of the word ‘shall’ in sub-section (3-A) is indicative of the legislative intent of considering such representation or objection, by the secured creditor mandatory. If the secured creditor is not satisfied with the representation o