Karnataka High Court
Ramnath Agencies vs Fullerton India on 15 March, 2022
Bench: S.G.Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.17684 OF 2021 (GM-RES)
BETWEEN:
1. RAMNATH AGENCIES,
27/11, II MAIN, APMC YARD,
YESHWANTHPUR,
BANGALORE - 560 022.
REPRESENTED BY ITS PARTNER
SRI. K. SHIVALINGAIAH.
2. SURESH TRADING COMPANY,
27/, II MAIN, APMC YARD,
YESHWANTHPURA,
BANGALORE - 560 022.
REPRESENTED BY ITS PROPRIETOR
SRI. N. RAJU.
3. M/S. MALAGANGA TRADING CO.,
27/3, II MAIN, APMC YARD,
YESHWANTHPUR,
BANGALORE - 560 022.
REPRESENTED BY ITS PARTNER
SRI. V. C. SETTU.
... PETITIONERS
(BY SRI.D.R.RAVISHANKAR, SENIOR COUNSEL A/W
SRI.S.SARAVANA, ADVOCATE)
AND:
1. FULLERTON INDIA
CREDIT COMPANY PVT. LTD.,
2
NO.37, BRAHMANANDA COURT,
2ND FLOOR, LALBAUGH ROAD,
BANGALORE - 560 027.
REPRESENTED BY ITS MANAGER.
2. D. S. OMPRAKASH,
S/O D. V. SEETHARAMAIAH,
AGED ABOUT 56 YEARS,
R/A NO. 26, SURAIAH NILAYA,
30TH MAIN, 5TH CROSS,
NEAL BALAJIKALYAN MANTAPA,
COLLEGE TEACHERS LAYOUT,
BSK 2ND STAGE, NEAR KIMS COLLEGE,
BENGALURU - 560 085.
3. R. SIDDESH,
S/O B. R. RENUKA,
AGED ABOUT 61 YEARS,
R/AT NO 127, 2ND MAIN,
CHAMARAJPET,
BANGALORE - 560 018.
4. APMC YARD,
NO.27, NEW NO.11,
SITUATED 2ND MAIN ROAD,
A.P.M.C. YARD,
YESHWANTHPUR,
BENGALURU - 560 022.
REPRESENTED BY ITS MANAGER.
... RESPONDENTS
(BY SRI.M.S.VENUGOPAL, ADVOCATE FOR R1;
R2 - SERVED;
SRI.VASANTH, ADVOCATE FOR R3;
R4 IS ORDERED TO BE DELETED VIDE ORDER DATED
02.12.2021)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
ANNEXURE - K THE ORDERS PASSED BY THE LEARNED IX
ADDL. CHIEF METROPOLITAN MAGISTRATE AT
BENGALURU IN CRL.MIS.NO.2141/2021 DATED
20.04.2021 AND ETC.,
THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
C CORDER
The petitioners claim to be the traders at APMC
yard, Yeshwanthpur are before this Court under 226
of the Constitution of India questioning the
correctness and legality of the order dated 20.04.2021
in Crl.Misc. No.2141/2021 passed under Section 14 of
the SARFAESI Act, 2002 for short 'the Act').
2. Heard Sri.D.R.Ravishankar, learned senior
counsel for the petitioner and Sri.M.S.Venugopal,
learned counsel for respondent No.1. Perused the writ
petition papers.
3. The petitioner claiming to be lessees of the
premises in question are before this Court challenging
the order passed under Section 14 of the Act. Learned
Senior Counsel would submit that in view of the
decision of the Hon'ble Apex Court in the case of
Harshad Govardhan Sondagar Vs. International
Assets Reconstruction Company Ltd reported in
(2014) 6 SCC 1 the petitioners are entitled for
protection of their possession. He further submits that
the petitioners were lessees prior to mortgaging of the
property to the bank. Thus, he prays for allowing the
writ petition.
4. Sri.Venugopal, learned counsel for the
petitioner submits that the petitioners have alternate
remedy to approach Debt Recovery Tribunal under
Section 17 of the Act and also relies upon the decision
of the Hon'ble Apex Court in the case of Phoenix Arc
Private Limited vs Vishwa Bharati Vidya Mandir
and others reported in 2022 SCC Online SC 44 and
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
petitioners claim that lease is created prior to
mortgaging of the property to the Bank. Section
17(4A) of the Act provides remedy to the
lessees/tenants. The petitioners have to establish their
tenancy. The above two decisions i.e., Phoenix Arc
and Sri. Abdul Khader (Supra), have made it clear
that when alternate remedy is provided under the Act,
such remedy shall be availed. Paragraphs 14, 15, 16
of the Sri. Abdul Khader (Supra) 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
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 am of the view that
the petitioner would have to approach Debt Recovery
Tribunal under Section 17 of the Act.
Accordingly, writ petition is disposed of with
liberty to the petitioner to approach the Debt
Recovery Tribunal. Interim order granted by this Court
on 22.09.2021 is extended by another four weeks
from today.
Sd/-
JUDGE
RKA
