Karnataka High Court
Sri K S Narayanan vs The Authorised Officer on 3 November, 2015
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 03RD DAY OF NOVEMBER, 2015
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No.46345 OF 2015 (GM-RES)
BETWEEN:
Sri. K.S.Narayanan,
Son of A.K.Sadagopachri,
Aged about 68 years,
Residing at Apartment No.GB,
Apartment Building known as
"Bloomingdale", situated at
15th, 17th Cross,
Padmanabhanagar,
Bangalore 560 070.
...PETITIONER
(By Shri Ananda, Advocate)
AND:
1. The Authorised Officer and
Chief Manager,
Bank of Maharashtra,
Indiranagar Branch, No.6,
1st Main, Domlur 2nd Stage,
Indiranagar,
Bangalore 560 071.
2
2. M/s. Millenium Synergy Private
Limited, No.16, 3rd Main,
Sakamma Garden,
Basavanagudi,
Bangalore 560 004.
3. Sri. M.S.Satheesh,
Son of Sri. B.Siddarama Setty,
Aged about 54 years,
Residing at No.172,
7th Cross, 7th Main,
3rd Block, Jayanagar,
Bangalore 560 001.
4. Smt. N.A.Mrudula,
Wife of Sri. M.S.Satheesh,
Aged about 47 years,
Residing at No.172, 7th Cross,
7th Main, 3rd Block, Jayanagar,
Bangalore 560 001.
...RESPONDENTS
*****
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to quash/set aside the
possession notice dated 15.10.2015 published in New Indian
Express English News Paper dated 17.10.2015 issued by the
first respondent against third respondent vide Annexure-C
produced by the petitioner.
This Writ Petition is coming on for Preliminary Hearing
this day, the court made the following:
3
ORDER
Heard the learned counsel for the petitioner.
2. The petitioner it is stated is in possession of premises belonging to Respondent No.3 under an agreement of lease dated 19.05.2005 in respect of the schedule property. It transpires that Respondent No.3 had mortgaged the leased premises in favour of Respondent No.1 and since he had defaulted in payment of the loan, the said Respondent No.1 - Bank had initiated proceedings under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the SARFAESI Act', for brevity). It is in that background since the petitioner faces the prospect of dispossession that the petitioner is before this Court.
3. As laid down by the Supreme Court in the case of Harshad Govardhan Sondagar vs. International Assets Reconstruction Company Limited and Others (2014) 6 SCC 1 wherein it is held by the Supreme Court that the provisions of 4 the SARFAESI Act would affect the right of the lessee to remain in possession of the secured asset during the period of lease and therefore could be considered as a person aggrieved who would also be entitled to invoke the power of the Tribunal to address his case. It is held as follows:
"32. When we read sub-section (1) of Section 17 of the SARFAESI Act, we find that under the said sub-section, "any person (including borrower)", aggrieved by any of the measures referred to in sub- section (4) of Section 13 taken by the secured creditor or his authorized officer under the chapter, may apply to the Debts Recovery Tribunal having jurisdiction in the matter within 45 days from the date on which such measures had been taken. We agree with Mr. Vikas Singh that the words "any person" are wide enough to indicate a lessee also. It is also possible to take a view that within 45 days from the date on which a possession notice is delivered or affixed or published under sub-rules (1) and (2) of Rule 8 of the Security Interest (Enforcement) Rules, 2002, a lessee may file an application before the Debts Recovery Tribunal having jurisdiction in the matter for restoration of possession in case he is dispossessed of the secured 5 asset. But when we read sub-section (3) of Section 17 of the SARFAESI Act, we find that the Debts Recovery Tribunal having jurisdiction in the matter for restoration of possession in case he is dispossessed of the secured asset. But when we read sub-section (3) of Section 17 of the SARFAESI Act, we find that the Debts Recovery Tribunal has powers to restore possession of the secured asset to the borrower only and not to any person such as a lessee. Hence, even if the Debts Recovery Tribunal comes to the conclusion that any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor are not in accordance with the provisions of the Act, it cannot restore possession of the secured asset to the lessee. Where, therefore, the Debts Recovery Tribunal considers the application of the lessee and comes to the conclusion that the lease in favour of the lessee was made prior to the creation of mortgage or the lease though made after the creation of mortgage is in accordance with the requirements of Section 65-A of the Transfer of Property Act and the lease was valid and binding on the mortgagee and the lease is yet to be determined, the Debts Recovery Tribunal will not have the power to restore possession of the secured asset to the lessee. In our considered opinion, therefore, there is no remedy available under Section 17 of the 6 SARFAESI Act to the lessee to protect his lawful possession under a valid lease."
Therefore, the petitioner is well advised to approach the Debts Recovery Tribunal and to protect his possession.
The petition is disposed of accordingly.
Sd/-
JUDGE KS