Mrs. Usha N vs The Manager
2022 Latest Caselaw 6034 Kant

                             1


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF APRIL, 2022

                        BEFORE

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

         WRIT PETITION No.7243/2022 (GM-RES)

BETWEEN:

  1. MRS. USHA N
     W/O NEERESH KUMAR K
     AGED ABOUT 58 YEARS

  2. SHASHANK N.S.
     S/O USHA N
     AGED ABOUT 33 YEARS

       BOTH ARE R/AT NO.301
       3RD FLOOR, "BHOOMIKA BLUE BELLS"
       HONGASANDRA VILLAGE
       BEGUR HOBLI
       BENGALURU SOUTH TALUK
       BENGALURU -560068.
                                          ...PETITIONERS

(BY SRI RANJAN KUMAR K., ADV.)


AND:

  1. THE MANAGER
     PNB HOUSING FINANCE LTD.,
     REGISTERED UNDER THE COMPANIES ACT
     HAVING ITS BRANCH OFFICE AT
     NO.56, SAI ARCADE, 3RD FLOOR
     MARATHAHALLI RING ROAD
     DEVARABISANAHALLI, BELLANDUR
     BENGALURU EAST TALUK
     BENGALURU-560 103.

  2. MR SURENDRA SINGH SONI
     S/O KISHAN LAL SONI
     AGED ABOUT 41 YEARS
                               2



     3. MRS. CHETHANA SURENDRA SINGH
        W/O MR. SURENDRA SINGH SONI
        AGED ABOUT 39 YEARS

       BOTH ARE R/AT NO.751
       SHIVA APARTMENTS
       FLAT NO.102, 20TH MAIN
       NEAR HSR CLUB, SECTOR 2
       BENGALURU-560102.
                                            ...RESPONDENTS

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO DIRECT R1 TO NOT
TO DISPOSSESS THE PETITIONERS FROM THE PEACEFUL
OCCUPATION, POSSESSION, AND ENJOYMENT OF THE
SCHEDULE PROPERTY WITHOUT FOLLOWING THE DUE
PROCESS OF LAW ANNEXURE-F.

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

                        ORDER

The petitioners are before this Court under Article

226 of the Constitution of India praying for a writ of

mandamus directing the 1st respondent not to

dispossess the petitioners from peaceful occupation,

possession and enjoyment of the schedule property

without following the due process of law pursuant to

Annexure-F dated 24.03.2022.

2. Heard Sri Ranjan Kumar, learned counsel for the

petitioner. Perused the writ petition papers.

3. Learned counsel for the petitioners would submit

that petitioners are tenants under 2nd and 3rd

respondents, who had borrowed loan from the 1st

respondent-PNB Housing Finance Ltd (for short 'the

Financial Institution') by mortgaging the property in

question, wherein the petitioners are tenants. As the

2nd and 3rd respondents failed to repay the loan amount,

the 1st respondent-Financial Institution initiated

recovery proceedings vide possession notice (Annexure-

F) dated 24.03.2022 under the SARFAESI Act, 2002 (for

short 'the Act')

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

remedy. Any person, who claims as tenant or claims

lease hold rights upon the secured asset, such tenant

could seek appropriate relief before the Debt Recovery

Tribunal. A Division Bench of this Court in SRI ABDUL

KHADER Vs. SADATH ALI SIDDIQUI reported in ILR 2022

KAR 13 has held that it is for the tenant to approach

the Debt Recovery Tribunal seeking appropriate relief.

Relevant paragraphs 14, 15 and 16 reads as follows :-

14. The Hon'ble Apex court in the case of Hemraj Ratnakar Salian vs. HDFC Bank Ltd. And Others, 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 SARFAESI 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."

5. In view of the above, I decline to entertain the writ

petition. The writ petition stands disposed of with

liberty to the petitioners to approach the Debt Recovery

Tribunal.

Sd/-

JUDGE NG* CT:bms