Mrs Hoor Banu vs Mrs Meera Lewis
2022 Latest Caselaw 10799 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 14TH DAY OF JULY, 2022

                          BEFORE

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

         WRIT PETITION NO.13816/2022 (GM-RES)

BETWEEN:

MRS. HOOR BANU
W/O MR. RASHID
AGED ABOUT 64 YEARS
DOOR No.3, W3-339/2
FIRST FLOOR
ASTRA APARTMENT, BEJAI CHURCH
CIRCUIT HOUSE ROAD
MANGALURU - 575 004.
                                             ...PETITIONER

(BY SRI K. SHASHIKANTH PRASAD, ADVOCATE)

AND:

1 . MRS. MEERA LEWIS
    W/O MR. DONALD LEWIS
    AGED ABOUT 57 YEARS
    707, 7TH FLOOR, FELICITY
    BEJAI NEW ROAD, BEJAI
    MANGALURU - 575 004.

2 . THE TAHASILDAR
    MANGALURU TALUK KACHERI
    MANGALURU
    DAKSHINA KANNADA DISTRICT - 575 002.
                                 2




3 . THE AUTHORISED OFFICER/MANAGER
    DIWAN FINANCE CORPORATION
    KODIYAL BAIL
    MANGALURU - 575 003
    REGISTERED UNDER NON BANKING
    FINANCIAL COMPANY RULES
    FRAMED UNDER RBI ACT.
                                              ....RESPONDENTS

(BY SRI M. VINOD KUMAR, AGA FOR R1 & R2)


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENT NO.1 ON THE BASIS OF NOTICE DATED
22.06.2022 IN NO.TAX CR. 115/2021-22 NOT TO EVICT THE
PETITIONER OR CEASE THE SCHEDULE PREMISES WITHOUT
DUE PROCESS OF LAW ANNEXURE-D & ETC.


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


                              ORDER

The petitioner, claims to be a tenant under respondent

No.1, is before this Court challenging the notice issued by

respondent No.2-Tahsildar in pursuance to the order passed

under Section 14 of the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security Interest Act, 2002

(for short 'SARFAESI Act').

2. Heard learned counsel Sri.K.Shashikanth Prasad for

the petitioner and learned Additional Government Advocate for

respondent Nos.1 and 2.

3. Learned counsel for the petitioner would submit that

the petitioner is a tenant under respondent No.1. Respondent

No.1 had availed financial assistance from respondent No.3-

Financial Institution and on his failure to repay the financial

assistance, respondent No.3-Financial Institution initiated

recovery proceedings under the SARFAESI Act. In pursuance to

the said order, the notice at Annexure-D has been issued by

respondent No.2-Tahsildar to vacate and handover the vacant

possession of the premises in question, which is secured by

respondent No.3. It is submitted that no notice was issued to the

petitioner-tenant and he is not a party to the proceedings

initiated by respondent No.3-Financial Institution. Thus, he prays

for setting aside the notice dated 22.06.2022 at Annexure-D.

4. Learned Additional Government Advocate would

submit that the petitioner-tenant has no right to challenge the

notice dated 22.06.2022 at Annexure-D and further he submits

that the petitioner-tenant is provided alternate remedy of

approaching the Debt Recovery Tribunal under Section 17 (4A)

of the SARFAESI Act.

5. Admittedly, the petitioner is a tenant under

respondent No.1 in the property, which is secured by respondent

No.3 under the SARFAESI Act. The tenant or lessee is provided

alternate remedy of approaching the Debt Recovery Tribunal

under Section 17 (4A) of the SARFAESI Act seeking appropriate

relief.

6. The Division Bench of this Court in a case reported in

ILR 2022 KAR 13 at paragraph No.14, 15 and 16 has held as

follows, on consideration of Section 17(4A) of SARFAESI Act as

well as previous decision of the Hon'ble Apex Court.

"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."

7. By following the principles laid down in the above

decision, I decline to entertain the writ petition with liberty to

the petitioner to approach the Debt Recovery Tribunal.

8. The writ petition is, accordingly, disposed of.

Sd/-

JUDGE

VM