Mr Althaf Pasha vs Punjab National Bank
2022 Latest Caselaw 5931 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 1ST DAY OF APRIL, 2022

                        BEFORE

         THE HON'BLE MR.JUSTICE S.G.PANDIT

        WRIT PETITION NO.7140/2022 (GM-RES)

BETWEEN:

  1. MR. ALTHAF PASHA
     S/O ABDUL SAB
     AGED ABOUT 63 YEARS
     NO.51/6, 5TH CROSS
     PATEL MUNIYAPPA LAYOUT
     V NAGENAHALLI
     R.T.NAGAR POST
     BENGALURU-560032
     AADHAAR NO.883253804785.

  2. MR. AFTAB PASHA
     S/O ALTHAF PASHA
     AGED ABOUT 30 YEARS
     NO.51/6, 5TH CROSS
     PATEL MUNIYAPPA LAYOUT
     V NAGENAHALLI
     R.T.NAGAR POST
     BENGALURU-560032.
                                      ...PETITIONERS

(BY SMT. RADHIKA K, ADV. FOR
 SRI AKRAM PASHA D M, ADV.)


AND:

  1. PUNJAB NATIONAL BANK
     REP. IT AUTHORIZED OFFICER
                              2

     NO.100, MOSQUE ROAD
     FRAZER TOWN
     BENGALURU-560005.

  2. MR.ESHWAR S.H
     S/O LATE SANJEEVAPPA H
     AGED ABOUT 51 YEARS
     NO.42, KAVERI LAYOUT
     DASARAHALLI, BENGALURU
     BENGALURU-560 024.
                                            ...RESPONDENTS

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
POSSESSION NOTICE ISSUED BY THE RESPONDENT BANK NO.1
DATED 15.03.2022 UNDER ANNEXURE-D AS PER THE ORDER
CLR.MISC   NO.1549/2021      DATED   03.04.2021  UNDER
ANNEXURE-E AND ETC.

     THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:-


                         ORDER

The petitioners claiming to be tenants of second

respondent are before this Court under Article 226 of the

Constitution of India, praying to quash the possession notice

dated 15.03.2022 (Annexure-D) issued under Section 13 of

the Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (for short

"SARFAESI Act") as per the order dated 03.04.2021 passed in

Crl.Misc.No.1549/2021 on the file of the I Additional CMM,

Bengaluru.

2. Heard learned counsel Smt.Radhika K for Sri.Akram

Pasha, learned counsel for the petitioners. Perused the writ

petition papers.

3. Learned counsel for the petitioners would submit that

the petitioners are tenants under second respondent in

pursuance of lease agreement dated 20.01.2022. The second

respondent obtained loan from the first respondent-Bank by

mortgaging the property in question. As the second

respondent failed to re-pay the loan, the first respondent-

Bank initiated action under the provisions of the

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (for short

"SARFAESI Act"). Section 17(4A) of the Act provides alternate

remedy to the petitioners to approach the Debt Recovery

Tribunal.

4. The Division Bench of this Court in the case of ABDUL

KHADER v/s SADATH ALI SIDDIQUI reported in ILR 2022

KAR 13 at paragraphs 14, 15 and 16 has held as under:

"14. The Hon'ble Apex Court in the case of Hemraj Ratnakar Salian vs. HDFC Bank Ltd. and has declined to grant any relief even though a claim was made that he was a tenant and therefore, is entitled for protection under the Maharashtra Rent Control Act. Therefore, on perusal of the above said sub-section (4A) and the judgment of the Hon'ble Apex Court, we would sum up the issue by relegating the appellant to work out his remedies before the Debt Recovery Tribunal. The question as to whether a lawful lease was created before the borrower pledged his properties by depositing title deeds or whether the borrower had secured the consent of secured creditor while leasing the secured asset in favour of tenant are all questions to be examined by the competent Tribunal under Section 17(4A) of the SARFAESI Act.

15. The Hon'ble Apex Court in the case of United Bank of India vs. Satyawati Tondon and Others has come down heavily on the Courts including

High Courts entertaining writ petitions in respect of matters exclusively falling within the domain of SARFAESI Act. The Hon'ble Apex Court at paragraph 55 has expressed its serious concern that despite repeated pronouncement, High Courts have been entertaining writ petitions ignoring the availability of statutory remedies under the DRT Act and SARFEASI Act.

16. Therefore, the contention of the appellant that the orders under Section 13 of the SARFAESI Act are only amenable to the appellate jurisdiction under Section 17(1) of the SARFAESI Act is totally misconceived. The said issue is dealt by the Hon'ble Apex Court in the judgment cited supra and therefore, the contention urged by the appellant that since he has no remedy under the provisions of the SARFAESI Act, he can maintain a writ petition before this Court under Articles 226 and 227 of the Constitution of India cannot be acceded to. Accordingly, point No.1 formulated above is answered in the affirmative".

A reading of the above makes it clear that it is for the tenants

to approach the Debt Recovery Tribunal seeking appropriate

relief under Section 17(4A) of the SARFAESI Act. Hence, I

decline to entertain the writ petition.

5. Accordingly, the writ petition is disposed of, with liberty

to the petitioners to approach the Debt Recovery Tribunal.

Sd/-

JUDGE

mpk/-* CT:bms