Sri Manjunath M R vs The Authorized Officer
2022 Latest Caselaw 10568 Kant

                             1


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 8TH DAY OF JULY, 2022

                        BEFORE

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

        WRIT PETITION No.11121/2022 (GM-RES)

BETWEEN:
SRI.MANJUNATH.M.R.,
S/O RAJASHETTY
AGED ABOUT 39 YEARS
R/AT No.2383, 1ST FLOOR
1ST CROSS, 1ST A MAIN ROAD
RPC LAYOUT, VIJAYANAGAR
BENGALURU-560040.                             ...PETITIONER

              (BY SRI.C.VIJAYA KUMAR, ADV.)


AND:
1.   THE AUTHORIZED OFFICER
     THE HANUMANTHANAGAR
     CO-OPERATIVE BANK LIMITED
     REGISTERED UNDER CO-OPERATIVE
     SOCIETIES ACT, 1959
     No.7/29, 3RD MAIN ROAD
     1ST CROSS, HANUMANTHANAGAR
     BENGALURU-560019.

2.   SRI.D.DARSHAN
     S/O DHARMARAJ.M.,
     AGED ABOUT 31 YEARS
     R/AT No.265, BASHYAM ROAD
     COTTONPET MAIN ROAD
     OPP. SANMAN HOTEL
     BANGALORE SOUTH
     BENGALURU-560053.
                              2


3.   SMT.D.DIVYA
     D/O DHYARMARAJ.M.
     AGED ABOUT 29 YEARS
     R/AT No.265, BASHYAM ROAD
     COTTONPET MAIN ROAD
     OPP. SANMAN HOTEL
     BANGALORE SOUTH
     BENGALURU-560053.
                                         ...RESPONDENTS


      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHING
THE POSSESSION NOTICE DATED 27.04.2022 POSSESSION
NOTICE DATD 03.05.2022 PUBLISHED IN INDIAN EXPRESS
DAILY NEWSPAPER IS HEREWITH PRODUCED AND MARKED AS
ANNEXURE-E AND F IN REF HCB 13/2022-3 ISSUED BY THE
FIRST RESPONDENT A COPY POF WHICH IS PRODUCED AT
ANNEXURE-E AND F TO MEET THE ENDS OF JUSTICE.

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

                         ORDER

Petitioner, lessee under respondent Nos.2 and 3 is

before this Court challenging Annexures-E and F

notices issued under Rule 8[1] of Security Interest

[Enforcement] Rules, 2002 [for short 2002 Rules].

2. Heard the learned counsel Sri.C.Vijaya

Kumar for petitioner and perused the writ petition

papers.

3. Learned counsel for the petitioner would

submit that petitioner is a lessee under respondent

Nos.2 and 3 who had obtained financial assistance from

the first respondent-bank. As the respondent Nos.2 and

3 failed to repay the loan taken, first respondent-bank

initiated recovery proceedings under 2002 Rules.

Petitioner is a lessee under the lease agreement dated

19.02.2022 and has paid Rs.20,00,000/- to respondent

Nos.2 and 3. It is the grievance of the petitioner that no

notice was issued to the petitioner before taking action

to issue possession notice under Annexure-E.

4. Having heard the learned counsel for the

petitioner and on perusal of the writ petition papers, I

am of the view that writ petition would not be

maintainable in view of the alternate remedy available to

the petitioner under Section 17[4A] of the Securitization

and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 [for short

2002 Act].

5. Section 17[4A] of 2002 Act provides alternate

remedy to a tenant or lessee to approach the Debts

Recovery Tribunal for appropriate relief. When the

Statute or Act provides alternate remedy, normally, this

Court would not entertain the writ petition under Article

226 of the Constitution of India. The above view is

supported by the decision of the Hon'ble Apex Court in

the case of PHOENIX ARC PRIVATE LIMITED v/s

VISHWA BHARATI VIDYA MANDIR AND OTHERS

reported in 2022 SCC OnLine SC 44 wherein the

Hon'ble Apex Court considering Section 17 of the 2002

Act at paragraphs 33, 34 and 35 has held as follows:

"33. In the case of City and Industrial Development Corpn. Vs. Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168, it was observed by this Court in paragraph 30 that the Court while exercising its jurisdiction under Article 226 is duty bound to consider whether

................... (c) the petitioner has any alternative or effective remedy for the resolution of the dispute."

34. In the case of Kanaiyalal Lalchand Sachdev and Ors. (supra) after referring to the earlier decisions of this Court in the cases of Sadhana Lodh Vs. National insurance Co.

Ltd. and Anr., (2003) 3 SCC 524; Surya Dev Rai Vs. Ram Chander Rai and Ors., (2003) 6 SCC 675 and State Bank of India Vs. Allied Chemical Laboratories and Anr., (2006) 9 SCC 252 while upholding the order passed by the High Court dismissing the writ petition on the ground that an efficacious remedy is available under Section 17 of the SARFAESI Act, it was observed that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person.

35. Similar view has been expressed by this Court in subsequent decisions in the case of General Manager, Sri Siddeshwara Co- operative Bank Limited & Anr. (supra) as well as in the case of Agarwal Tracom Private Limited (supra)."

6. Moreover, the Division Bench of this Court

in the case of ABDUL KHADER v/s SADATH ALI

SIDDIQUI [ILR 2022 KAR 13] considering Section

17[4A] of the 2002 Act has held that no writ would be

maintainable by a tenant or lessee challenging the

recovery action under 2002 Act and the remedy would

be to approach the Debts Recovery Tribunal. At

paragraphs 14, 15 and 16 of the said decision is quoted

hereunder for ready reference:

"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".

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

petition.

Accordingly, writ petition is disposed of with

liberty to the petitioner to approach Debts Recovery

Tribunal under Section 17(4A) of the 2002 Act for

appropriate relief.

Sd/-

JUDGE

NC.