O R D E R

08.11.2021 Sujoy Paul,J.

This petition is filed by the petitioners (borrower) questioning the judgment dated 14.09.2021 (Annexure P/21) passed by the Debt Recovery Appellate Tribunal (DRAT), whereby the order passed by the Debt Recovery Tribunal (DRT), Jabalpur is set aside.

2. Briefly stated, the case of the petitioners is that the petitioner no.1 is a company and the petitioner no.2 to 7 are Directors/Personal Guarantors for the petitioner no.1/Company, whereas petitioner nos.8 to 10 are Corporate Guarantors of petitioner no.1/company.

3. Indisputably, on different occasions, sanction letters were issued sanctioning credit limits i in favor of petitioner no.1. On 28.10.2015, authorised accounts of petitioner no.1 were declared as non- performing asset (NPA) and consequently on 29.08.2016 a demand notice under section 13(2) of The Securitisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 (SARFAESI Act) was issued by respondent no.1/bank as a leader of consortium of banks. Another demand notice under section 13(2) of SARFAESI Act was issued on 11.07.2016 by respondent no.2/bank which are filed as (Annexure P/3 and P/4) respectively.

4. The stand of the petitioner is that through its counsel on 24.10.2016 (Annexure P/5) and dated 06.09.2016 (Annexure P/6) the petitioner sent representation/objection to respondent nos.1 and 2/banks as per section 13(3-A) of the SARFAESI Act. On 09.11.2016 (Annexure P/7), the respondent/banks served a letter to the counsel for the petitioner no.1/company demanding a valid authorization proof authorizing him to represent the petitioners.

5. In turn, counsel for the respondent no.1 on 26.11.2016 sent a recall notice demanding payment of outstanding dues from the petitioners as on 25.11.2016. Counsel for the petitioner sent reply on

09.12.2016.

6. Respondent no.1/bank sent another letter dated 21.01.2017 to the counsel for the petitioner no.1/company that since no authorization has been provided, therefore, representation dated 24.10.2016 will be treated as unauthorized. In absence of authorization, the representation of counsel will be treated as 3rd party representation and the bank will proceed further under the SARFAESI Act assuming that no representation has been made.

7. Shri Amit S.Agrawal, learned senior counsel for the petitioner submitted that no action was taken by the banks in pursuance to aforesaid demand notices (Annexure P/3 and P/4). Indeed, on 02.08.2017 (Annexure P/9), the respondent no.1/bank in the capacity of lead bank of consortium issued a fresh 2nd demand notice under section 13(2) of the SARFAESI Act demanding the outstanding dues of Rs.2,19,06,84,216.87/- allegedly stood outstanding as on 30.06.2017. The petitioner's counsel on 28.09.2017 (Annexure P/10)

again preferred a representation as per section 13(3-A) of the SARFAESI Act. Once again, the respondent/bank issued a letter dated 21.10.2017 (Annexure P11) to the counsel for the petitioners' demanding authorization proof to represent the petitioners. Learned counsel for the petitioners submits that there is no bar against the borrower for being represented by a Lawyer under the SARFAESI Act much less under section 13 of the Act.

8. It is urged that the respondent no.1/Bank did not take action on the objection submitted by the counsel for the petitioners under section 13(3-A) of the SARFAESI Act and straight away proceeded to take action under section 13(4) of the SARFAESI Act read with Rule 8(1) of the Security Interest (Enforcement) Rules, 2002 and took symbolic possession of movable assets mortgaged by issuing possession notices dated 28.02.2018., 05.03.2018 and 09.03.2018. By placing reliance on the judgment of the Apex Court in ITC ltd. Vs. Blue Coast Hotel ltd. reported in AIR 2018 SCC 3063, it is contended that section 13(3-A) is a mandatory provision and it was incumbent upon the respondent/bank to decide the representation of the petitioners before taking steps under sec