Smt Kalpana M vs Mrs Savitha R
2022 Latest Caselaw 4906 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 16TH DAY OF MARCH, 2022

                        BEFORE

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

      WRIT PETITION NO.5694 OF 2022 (GM-RES)

BETWEEN:

SMT. KALPANA M,
AGED 48 YEARS,
W/O LATE V. MURTHY,
RESIDING AT FLAT NO.A/G,
MUTUAL APARTMENT, GROUND FLOOR,
CHINNAPPA LANE, ITC ROAD,
JEEVANAHALLI, BENGALURU - 560 005.
                                      ... PETITIONER

(BY SRI. RANGARAMU.V, ADVOCATE)


AND:

1.     MRS. SAVITHA .R,
       AGED ABOUT 38 YEARS,
       W/O YUVARAJENDRAN,

2.     MR. YUVARAJENDRAN,
       AGED ABOUT 40 YEARS,
       S/O RAVINDRAN,
       BOTH ARE RESIDING AT NO.84,
       RAMAIAH ROAD, M.S. NAGAR POST,
       R.S. PALYA, BENGALURU - 560 034.

3.     HDFC
       HOUSING DEVELOPMENT FINANCE CORPORATION
       LIMITED
       REP. BY ITS MANAGER / AUTHORIZED OFFICER
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      HDFC HOUSE, NO.51
      KASTURBA ROAD,
      BENGALURU - 560 001.
                                           ... RESPONDENTS

(BY SRI.)

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH OR SET ASIDE THE IMPUGNED POSSESSION
NOTICE DTD. 19.01.2022 ISSUED BY THE R-3 / BANK
UNDER SECTION 13 (4) OF THE SECURITIZATION AND
RECONSTRUCTION     OF   FINANCIAL   ASSETS    AND
ENFORCEMENT OF SECURITY INTEREST ACT READ WITH
RULE 8 OF THE SECURITY INTEREST (ENFORCEMENT)
RULES, TO THE EXTENT OF PETITIONER AND HER FAMILY
MEMBERS ONLY A COPY AT ANNX-A; AND ETC.,


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

                             ORDER

The petitioner claiming to be a tenant of suit

schedule property bearing No.A-G, present

corporation sub No.13/2, having PID No:86-77-13/2,

in the Ground floor of the apartment building

constructed on the land bearing No.13/2, situated at

Chinnappa lane, Jeevanahalli, is before this Court

challenging the possession notice dated 19-01-2022,

issued by respondent No.3-Bank under Section 13(4)

of the SARFAESI Act, 2002 read with Rule 8 of the

Security Interest (Enforcement) Rules.

2. Heard Sri. Rangaramu .V, learned counsel

for the petitioner and perused the writ petition

papers.

3. Learned counsel for the petitioner submits

that the petitioner was inducted as tenant under lease

agreement dated 26.12.2020 as per Annexure-B.

Respondent Nos.1 & 2 raised loans from respondent -

Bank. As respondent Nos.1 & 2 failed to repay the

loan taken from the respondent-Bank, the

respondent-Bank initiated action for recovery of the

loan under the provisions of the Act.

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

alternate remedy of approaching the Debt Recovery

Tribunal to establish the tenancy and for protection.

5. This Court in the decision of the Division

Bench, in the case of Sri Abdul Khader Vs. Sadath

Ali Siddiqui and Another reported in ILR 2022 KAR

13 at paragraphs 14, 15 and 16 held 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".

6. In view of the above, I decline to entertain

the writ petition. It is open to the petitioner to

approach the Debt Recovery Tribunal under Section

17 of the Act.

With the above, writ petition stands rejected.

Sd/-

JUDGE RKA