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Arce Polymers Private Limited v. M/s Alphine Pharmaceuticals Private Limited & Ors.

Civil Appeal · 2021 INSC 820Decided 3 Dec 2021
Civil Appeal No. 7372 of 2021
Justice L. Nageswara Rao · Justice Sanjiv Khanna · Justice B.R. Gavai

Background

A borrower company defaulted on a loan secured against its factory property, and after the loan was declared a non-performing asset, the bank issued a demand notice under the SARFAESI Act. Over roughly two years, the borrower repeatedly wrote seeking more time and restructuring, causing the bank to repeatedly delay enforcement action, but ultimately failed to make good on its promises or submit required paperwork. The bank then auctioned the property, which was purchased by a third party who later resold it to the appellant company. The borrower challenged the entire enforcement process before the High Court, which quashed the sale on the ground that the bank had not responded in writing to the borrower's representations as required by Section 13(3A) of the SARFAESI Act.

Decision Breakdown

The Supreme Court held that even though the bank technically had not issued a formal written reply to the borrower's representations, the bank had in substance considered and acted on them: repeatedly giving the borrower extra time and opportunities to regularize the loan before finally proceeding to auction. The Court applied the legal principles of waiver and estoppel, holding that the borrower's own conduct, including years of unfulfilled promises and never challenging the bank's actions until after the property had changed hands to third parties, barred it from now complaining about the lack of a formal reply. The Court also rejected the High Court's view that machinery on the property needed to be separately valued and auctioned, since the valuation report had assessed it item by item and the final auction price exceeded fair market value. The Supreme Court set aside the High Court's order and upheld the bank's auction sale.

Lesson Learnt

A borrower who repeatedly seeks extensions and restructuring from a lender, and allows years to pass and third-party rights to be created before objecting to a technical procedural lapse, can lose the right to raise that objection later: courts call this "waiver by conduct."

Official source (sci.gov.in)View Judgment (PDF)

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