Dimple vs Bank Of India & Ors
2021 Latest Caselaw 1400 HP

          IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

                                                  CWP No. 570 of 2021




                                                                                    .
                                                  Decided on: 26.02.2021





    Dimple                                                                   ...Petitioner
                                         Versus





    Bank of India & Ors.                                                     ...Respondents
    __________________________________________________________________________
    Coram:
    Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.





    Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
                                                 No.
    Whether approved for reporting? 1

    For the Petitioner :                 Mr. Tara Singh Chauhan, Advocate.

    For the Respondents : Mr. Ranvir Chauhan, Advocate, for

                          respondents No. 1 and 2.

                                         Mr. Ashok Sharma, A.G. with Mr. Vinod
                                         Thakur, Mr. Vikas Rathore, Mr. Shiv Pal
                                         Manhans, Addl. A.Gs., Mr. Bhupinder


                                         Thakur and Mr. Yudhvir Singh Thakur, Dy.
                                         A.Gs., for respondent No. 3.




    Tarlok Singh Chauhan, Judge (Oral)

Proceedings under SARFAESI stand initiated against

the principal borrower Mr. Munish Kapoor. The petitioner claims

to be the tenant in the premises and has filed the instant

petition for the grant of following substantive relief:-

(I) That the respondents may be directed not to take the possession of the school building known as Mandi Public Senior Secondary School, Mandi, in pursuance to Annexures P-4 and P-5.

Whether reporters of the local papers may be allowed to see the judgment? yes

2. Section 17 of the SARFAESI Act has been amended

vide S.O. 2831(E), dated Ist September, 2016 whereby Section

.

17(4A) has been introduced, which reads as under:-

17(4A) Where-

(i) any person, in an application under sub-section (1),

claims any tenancy or leasehold rights upon the secured asset, the Debt Recovery tribunal, after examining the facts of the case and evidence produced by the parties in

relation to such claims shall, for the purposes of enforcement of security interest, have the jurisdiction to examine whether lease or tenancy,-

(a) has expired or stood determined; or

(b) is contrary to section 65A of the Transfer of

Property Act, 1882 (4 of 1882); or

(c) is contrary to terms of mortgage; or

(d) is created after the issuance of notice of default

and demand by the Bank under sub-section (2) of section 13 of the Act; and

(ii) the Debt Recovery Tribunal is satisfied that tenancy

right or leasehold rights claimed in secured asset falls under the sub-clause (a) or sub-clause (b) or sub-

clause(c) or sub-clause (d) of clause (I), then notwithstanding anything to the contrary contained in

any other law for the time being in force, the Debt Recovery Tribunal may pass such order as it deems fit in accordance with the provisions of this Act.

3. A bare perusal of the aforesaid section reveals that

all the claims of the so-called "tenant" or "leasehold rights" are

to be adjudicated only by the Debt Recovery Tribunal, where the

proceedings otherwise are stated to be pending.

4. In this view of the matter, the instant petition is

clearly not maintainable, as this Court does not have the

.

jurisdiction to entertain such petition.

5. Consequently, the instant petition is disposed of as

such. However, liberty reserved to the petitioner to avail such

remedy(ies) as may be available to her in accordance with law.

Pending application(s), if any, also stands disposed of.

                            r       to         (Tarlok Singh Chauhan)
                                                          Judge

                                                   (Jyotsna Rewal Dua)
          26 February, 2021
             th
                                                           Judge
                  (sanjeev)