Sri Dinesh Kumar vs The Bank Of Baroda
2022 Latest Caselaw 3859 Kant

                         1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 7TH DAY OF MARCH, 2022

                       BEFORE

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

      WRIT PETITION NO.4119 OF 2022 (GM-RES)

BETWEEN:

SRI DINESH KUMAR
S/O LATE N. SWAMIRAO HIRSKAR
AGED ABOUT 54 YEARS
RA/T NO.1, KASHINAGAR
AMRUTHAHALLI
SAHAKAR NAGAR POST
BENGALURU 560 092

PRESENTLY R/AT
FLAT NO.107,
1ST FLOOR, ATZ ROCK VIEW
RACHENAHALLI,
BEHIND MANYATHA TECH PARK
BENGALURU 90                    ... PETITIONER

(BY SRI.MAHESH KIRAN SHETTY, ADVOCATE)

AND:

1.     THE BANK OF BARODA
       (EARLIER VIJAYA BANK)
       MALLESHWARAM BRANCH
       NO.16, NANJUNDESHWARA COMPLEX
       10TH CROSS,SAMPIGE ROAD,
       MALLESHWARAM
       BENGALURU 560003

       REPRESENTED BY ITS AUTHORISED OFFICER
                              2



2.   SRI. GOPINATH MIRASKAR
     S/O CHINNOJI RAO MIRASKAR

3.   MRS. LAKSHMI G
     W/O GOPINATH
     MIRASKAR
     R/AT NO. 119, 3RD FLOOR
     PANDURANGA NIVAS, 17TH CROSS
     8TH MAIN, MALLESHWARAM
     BENGALURU 560 003           ... RESPONDENTS

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER PASSED BY THE VII ACMM
BANGALORE     IN    CRL.MISC.NO.4622/2020   DATED
04.12.2021 VIDE ANNEXURE-C AND ETC.,


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

                           ORDER

The petitioner claiming to be a lessee under

respondent Nos.2 and 3 is before this Court praying to

quash the impugned order dated 04.12.2021 in

Crl.Misc.No.4622/2020 filed under Section 14 of

SARFAESI Act (for short 'the Act').

2. Admittedly, the petitioner claims to be a

tenant under Annexure-A/lease agreement dated

01.03.2021. The first respondent-bank has initiated

action under provisions of the Act to recover the loan

amount due from the second respondent. Section 17 (4-

A) of the Act provides remedy to the lessee or tenant.

3. When the Act or Statute provides for

remedy, normally this Court would not entertain writ

petition under Article 226 of the Constitution of India.

4. The above view is supported by the decision

of the Division Bench of this Court in the case of Sri

Abdul Khader Vs. Sadath Ali Siddiqui and Another

reported in ILR 2022 KAR 13. The relevant portion of

the 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 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".

Accordingly, petition is disposed of with liberty to

the petitioner to approach the Debt Recovery Tribunal.

Sd/-

JUDGE

RKA