Smt Geetha vs State Bank Of India
2022 Latest Caselaw 7673 Kant

                              1


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 30TH DAY OF MAY, 2022

                         BEFORE

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

        WRIT PETITION No.10500/2022 (GM-RES)

BETWEEN:
SMT GEETHA
W/O SRI NAGENDRA RAO.R
AGE 54 YEARS,
R/AT NO.18, 9TH MAIN ROAD,
BYRAVESHWARANAGARA
BENGALURU-560072.                              ...PETITIONER

              (BY SRI.RAVINDRA PRASAD, ADV.)

AND:
1.     STATE BANK OF INDIA
       RACPC-1, BASAVANAGUDI
       BENGALURU
       REPRESENTED BY ITS AUTHORIZED MANAGER

2.     SMT MANJULA
       W/O SRI VENKATESH
       R/AT MP/18, 9TH MAIN,
       KANVA NILAYA, NAGARABHAVI MAIN ROAD,
       BYRAVESHWARANAGARA
       BENGALURU-560072

3.     SRI ALEX R
       S/O LATE RAJU
       R/AT MP/18, 9TH MAIN
       KANVA NILAYA,
       NAGARABHAVI MAIN ROAD,
       BYRAVESHWARANAGARA
       BENGALURU-560072.                  ...RESPONDENTS

               (BY SRI.FRANCIS XAVIER, ADV.)
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     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO STAYING THE
OPERATION OF THE ORDER PASSED BY THE 8TH ACMM,
BENGALURU IN C.MISC.NO.2715/2021 DATED 08.04.2022 SO
FAR CONCERN TO THE SCHEDULE B PROPERTY VIDE
ANNEXURE-E AND ETC.,

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

                            ORDER

The petitioner claiming to be the tenant under the

respondent No.2 is before this Court challenging the

order dated 08.04.2022 in C.M isc.No.2715/2021 under

Section 14 of the Securitization and Reconstruction of

Financial Assets and Enforcement of Security Interest

Act, 2002 ['SARFAESI Act' for short].

2. Heard the learned counsel Sri.Ravindra

Prasad for the petitioner and learned counsel

Sri.Francis Xavier for the respondent No.1-bank.

3. Learned counsel for the petitioner submits

that the petitioner is a tenant under the second

respondent under lease deed dated 20.06.2020. The

petitioner was in possession from the date of entring

into lease and the bank ought to have issued notice to

the petitioner before taking any action to take

possession of the schedule property. Since it is the

contention of the petitioner that no notice was issued to

the petitioner and at this stage, learned counsel for the

petitioner would submit that the petitioner be refunded

the lease amount after adjusting the sale amount by the

first respondent-bank. Learned counsel for the

respondent No.1 submits that the bank has already

taken possession of the secured asset and he submits

that the remedy for the petitioner is to approach the

Debt Recovery Tribunal under Section 17 of the

SARFAESI Act.

4. The petitioner contends that he is a tenant

under Annexure-A dated 29.06.2020. The lease deed on

which the petitioner relies upon is not a registered sale

deed. Admittedly, the loan was sanctioned to the second

respondent in the year 2017 and security was granted

in the same year whereas the petitioner claims that she

is a lessee from the year 2020. Therefore, it is for the

petitioner to prove that she is the recognized tenant by

approaching the Debt Recovery Tribunal under Section

17[4A] of the SARFAESI Act for appropriate relief. This

Court in the case of ABDUL KHADER v/s SADATH ALI

SIDDIQUI reported in ILR 2022 KAR 13 was

considering a case of the tenant under the SARFAESI

Act. At paragraphs 14, 15 and 16 of the said decision is

quoted hereunder for ready reference:

"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".

5. A reading of the above makes it clear that it

is for the tenant to approach the Debt Recovery

Tribunal seeking appropriate relief under Section 17(4A)

of the SARFAESI Act. Hence, I decline to entertain the

writ petition.

Accordingly, the writ petition is disposed of.

It is open for the petitioner to approach the Debt

Recovery Tribunal as stated above.

Sd/-

JUDGE

NC.