Smt. Hemalatha vs The Authorized Officer, Uco Bank
2022 Latest Caselaw 5191 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 22ND DAY OF MARCH, 2022

                       BEFORE

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

     WRIT PETITION NO.10303 OF 2021 (GM-RES)

BETWEEN:

SMT. HEMALATHA
W/O N.DEVENDRA
AGED ABOUT 62 YEARS
R/AT NO.40/13/3, 1ST FLOOR
9TH CROSS, GOVINDARAJANAGAR
VIJAYANAGAR POST
BENGALURU - 560 040.
                                      ... PETITIONER

(BY SRI.VASANTHAPPA, ADVOCATE)


AND:

1.     THE AUTHORIZED OFFICER
       UCO BANK, HSR LAY-OUT BRANCH
       NO.252, 14TH MAIN SECTOR-7
       HSR LAYOUT
       BENGALURU - 560 102.

2.     SRI.S.KIRAN KUMAR
       S/O LATE L.SRINIVASA MURTHY
       AGED ABOUT 39 YEARS
       R/AT NO.9, APARNAJI
       SRI. MUNISWAMY PRASANNA
       4TH CROSS, PRIYADARSHINI LAYOUT
                           2



     NAGARABHAVI MAIN ROAD
     VIJAYANAGAR
     BENGALURU - 560 072.

                                     ... RESPONDENTS

(BY SRI.PARASHURAM.K.R., ADVOCATE FOR C/R1;
     R2-SERVED)

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DIRECT THE R-1 NOT TO EVICT THE PETITIONER
POSSESSION OF THE SCHEDULE PROPERTY BY PASSING
AN ORDER OF RESTORATION AND ETC.,


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

                       ORDER

The petitioner is before this Court under Article

226 of the Constitution of India, praying for a writ of

mandamus directing first respondent not to evict the

petitioner from the schedule property by passing an

order of restoration and further direct the first

respondent to pay damages to the petitioner.

2. Heard Sri. Vasanthappa, learned counsel

for the petitioner and Sri. Parashuram K.R., learned

counsel for caveator/respondent No.1. Perused the

writ petition papers.

3. The petitioner claims that he is a tenant

under the second respondent under a Lease Deed

dated 13.03.2020. The second respondent had

obtained loan from the first respondent-Bank and as

the second respondent defaulted in repayment of

loan, the first respondent initiated action for recovery

of the dues under the provisions of the Securitization

and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 and Rules

(for short "SARFAESI Act").

4. From the writ petition papers it is seen that

the sale of the schedule property has already taken

place on 19.07.2021 and Sale Certificate was also

issued on 26.10.2021.

5. Prayer made by the petitioner cannot be

gone into by this Court under Article 226 of the

Constitution of India. Moreover, the Act provides

alternate remedy to approach the Debt Recovery

Tribunal under Section 17 of the SARFAESI Act. When

the Act or statute itself provides alternate remedy,

this Court normally would not entertain the writ

petition under Article 226 of the Constitution of India.

6. A lessee or a tenant is provided remedy

under sub-Section (4A) of Section 17 of the SARFAESI

Act and can seek appropriate relief before the Debt

Recovery Tribunal. 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 2002 SCC Online SC 44 and also by 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."

7. For the reasons stated above writ petition

is disposed of with liberty to the petitioner to approach

the Debt Recovery Tribunal under Section 17 of the

Act.

SD/-

JUDGE

RKA