TMI Blog2020 (10) TMI 1058X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents was trivial and technical in nature and the appellant (secured creditor) has complied with the procedure prescribed under the SARFAESI Act. At the same time, the objection raised by the respondents in the first instance, at the stage of filing of a Securitisation Application before DRT under the SARFAESI Act is a feeble attempt which has persuaded the Tribunal and the High Court to negate the proceedings initiated by the appellant under the SARFAESI Act, is unsustainable more so, when the respondents are unable to justify the error in the procedure being followed by the appellant (secured creditor) to be complied with in initiating proceedings under the SARFAESI Act. Appeal allowed. - CIVIL APPEAL NO(s). 3413 OF 2020 (Arising out of SLP(C) No(s). 18360 of 2019) - - - Dated:- 27-10-2020 - JUSTICE L. NAGESWARA RAO, JUSTICE HEMANT GUPTA And JUSTICE AJAY RASTOGI For the Appellant : Mr. Shashikiran Shetty Sr. Adv. Mr. Mahesh Thakur, AORMs. Anupama Bordoloi, Adv. Ms. Prangna Baruah,Adv. For the Respondent : Mr. Varun Singh, AdvMs. Nishtha Kumar, AORMs. Deepti Arya, AdvMr. Akshay Dev, AdvMr. Rishabh Rana, Advocate JUDGMENT Rastogi, J. 1. The inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due repayment of any financial assistance. . 4. The first respondent is a partnership firm registered under the Partnership Act, 1932 and is dealing in the real estate construction business as alleged and the second respondent is the partner of first respondent firm. The first respondent and its partners in carrying out its business obligations approached the appellant for seeking financial assistance and submitted a request to the appellant vide application dated 15th May, 2015 for term loan of ₹ 20 crores for completion of its project ( Mittal Palms, PhaseI ). 5. The appellant taking note of the request made by the respondents sanctioned Term Loan Facility to the tune of ₹ 20 crores towards completion of the project vide sanction letter dated 07th August, 2015 on such terms and conditions as set out in the sanction letter and for availing the above credit facility, the respondents executed Facility Agreement dated 11th August, 2015 along with security documents by mortgaging the various immovable properties as a security for creating security interest in favour of the appellant. It may be relevant to note that the sanction letter dated 07th August, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant and the respondents herein. It may be relevant to note that the demand notice dated 14th June, 2017 under Section 13(2) of the SARFAESI Act was issued on the same letterhead of the appellant duly signed by its self same authorised signatory, who had initially signed at the time when the proposal of term loan was sanctioned vide sanction letter dated 07th August, 2015 and no objection was raised by the respondents in its reply dated 08th August, 2017 of misconception or confusion if any, in reference to the secured creditor (appellant) on whose behest the demand notice was served under Section 13(2) of the SARFAESI Act. 8. Since the respondents failed to discharge their liability towards the appellant in terms of the demand notice, the appellant took further action in due compliance under Section 13(4) read with Section 14 of the SARFAESI Act and filed application before the competent authority for taking possession of the mortgaged properties and the collateral security of the respondents. 9. At this stage, the respondents proceeded in filing a Securitisation Application No.76/2018 before the Debt Recovery Tribunal under Section 17 of the SARFAESI Act assailing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) in carrying out its obligations and protecting their security interest as contemplated under the provisions of the SARFAESI Act. 11. Learned counsel for the appellant further submits that the proceedings initiated under the SARFAESI Act would not nullify on the mere technicality as being pointed out and the High Court without appreciating the material on record has reversed the finding returned by the DRAT in its extraordinary jurisdiction under Article 226 227 of the Constitution and if two views are possible, unless found to be perverse it was not justified for the High Court to reverse the finding of fact supported by the material on record and that needs interference of this Court. 12. Per contra, learned counsel for the respondents while buttressing the judgment impugned of the High Court submits that when the salient defect has been noticed by the DRT and confirmed by the High Court at the very inception of the proceedings being initiated under the SARFAESI Act, all the consequential proceedings initiated in furtherance thereof in the instant case cannot be said to be in due compliance of the SARFAESI Act and once a procedure has been prescribed by law as mandated u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for M/s. Trishul Developers and by its guarantors. 16. It manifests from the record that the respondents from the initial stage are aware of the procedure which is being followed by the appellant in its correspondence while dealing with its customers and that is the same practice being followed by the appellant when demand notice dated 16th December, 2016 was served at a later stage. The demand notice in explicit terms clearly indicates the execution of the Facility Agreement dated 11th August, 2015 between the appellant (L T Housing Finance Ltd.) and the respondents (M/s. Trishul Developers through its partners) and of the default being committed by the respondents (borrower/guarantor) in furtherance thereof, a notice under Section 13(2) of the SARFAESI Act was served on the same pattern of the letterhead which is being ordinarily used by the appellant in its correspondence with its customers and the demand notice dated 14th June, 2017 without leaving any iota of doubt is in reference to the nonfulfillment of the terms and conditions of the Facility Agreement dated 11th August, 2015 executed between the parties and even the schedule of security profile which has been annexed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s trivial and technical in nature and the appellant (secured creditor) has complied with the procedure prescribed under the SARFAESI Act. At the same time, the objection raised by the respondents in the first instance, at the stage of filing of a Securitisation Application before DRT under the SARFAESI Act is a feeble attempt which has persuaded the Tribunal and the High Court to negate the proceedings initiated by the appellant under the SARFAESI Act, is unsustainable more so, when the respondents are unable to justify the error in the procedure being followed by the appellant (secured creditor) to be complied with in initiating proceedings under the SARFAESI Act. 21. The submission made by the respondent s counsel that the notice under Section 13(2) of the Act was served by the authorised signatory of L T Finance Ltd. and that was not the secured creditor in the facts of the case, in our considered view, is wholly without substance for the reason that L T Finance Ltd. and L T Housing Finance Ltd. are the companies who in their correspondence with all its customers use a common letterhead having their selfsame authorised signatory, as being manifest from the record and it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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