“14. Waiver is an intentional relinquishment of a known right. Waiver applies when a party knows the material facts and is cognizant of the legal rights in that matter, and yet for some consideration consciously abandons the existing legal right, advantage, benefit, claim or privilege. Waiver can be contractual or by express conduct in consideration of some compromise. However, a statutory right may also be waived by implied conduct, like, by wanting to take a chance of a favourable decision. The fact that the other side has acted on it, is sufficient consideration. It is correct that waiver being an intentional relinquishment is not to be inferred by the mere failure to take an action, but the present case is of repeated positive acts post the notices under sections 13(2) and (4) of the SARFAESI Act. Not only did the borrower not question or object to the action of the bank, but it by express and deliberate conduct had asked the bank to compromise its position and alter the contractual terms. The borrower wrote repeated request letters for restructuring of loan, which prayers were considered by the bank by giving indulgence, time and opportunities. The borrower, aware and conscious of its rights, chose to abandon the statutory claim and took its chance and even procured favourable decisions. Even if we are to assume that the borrower did not waive the remedy, its conduct had put the bank in a position where they have lost time, and suffered on account of delay and laches, which aspects are material. Action on the subject property was delayed by more than a year as at the behest of the borrower, the bank gave them a long rope to regularize the account. To ignore the conduct of the borrower would not be reasonable to the bank once third party rights have been created. In this back ground, the principle of equitable estoppel as a rule of evidence bars the borrower from complaining of violation.”
