Karnataka High Court
M/S. Indostar Capital Finance Limited vs R.Nanjappa on 25 February, 2020
Author: S.Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
CIVIL REVISION PETITION No.453/2019
Between:
M/s. Indostar Capital Finance Limited,
Having Office at No.13,
CNR Chambers, 4th Floor,
Kasturba Road,
Bangalore - 560 001,
Represented by its
Authorised Officer,
Mr. Shabir Khan. ... Petitioner
(By Smt. Shreedevi K.B., Advocate for
Sri Jai M. Patil, Advocate)
And:
1. R. Nanjappa,
S/o Late Ramashetty,
Aged about 61 years,
Flat No.102, Balaji Enclave - 3,
No.34/1, Ground Floor,
MLA Layout, RMV 2nd Stage,
Sanjayanagara, 4th Block,
Bengalore - 560 094.
2. Smt. R. Bhuvaneshwari,
W/o K. Jai Shankar,
Aged about 45 years,
Residing at No.139, 6th Cross,
1st Main Road,
2
MSR Nagara,
Bangalore - 560 054. ... Respondents
(By Sri Keshav R. Agnihatri, Advocate for C/R1;
V/o dated 04.12.2019, service of
notice to R2 is held sufficient)
This Civil Revision Petition is filed under Section 115
of CPC, against the order dated 22.08.2019 passed on I.A.
No.3 in O.S. No.3679/2019 on the file of the XIX Additional
City Civil and Sessions Judge, Bangalore rejecting the IA
No.3 filed under Order 7 Rule 11(d) r/w Section 151 of CPC
and Section 34 of the Securitisation and Reconstruction of
Financial Asset and Enforcement of Security Interest Act,
2002 dated 11.06.2019.
This Civil Revision Petition coming on for admission,
this day, the Court made the following:
ORDER
The petitioner who is defendant No.2 before the trial Court, has challenged the order of the trial Court whereby the application filed under Order VII Rule 11(d) of C.P.C. has been dismissed. The application was filed by defendant No.2 before the trial Court seeking for rejection of the plaint on the ground that the suit was not maintainable, as the plaintiff who is seeking to enforce rights as a lessee under the defendant No.1 is to seek appropriate remedy in terms of Section 17(4A) of 3 the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act' for brevity).
2. It is the contention of defendant No.2 that suit for injunction is not maintainable and relief sought for is to restrain the defendants from dispossessing the plaintiff of the suit schedule property and such relief is based on the legal relationship of lessor and lessee between the plaintiff and defendant No.1.
3. Accordingly, it is submitted that Section 17(4A) of the SARFAESI Act provides for a remedy and the present suit is with respect to matters as specified under Section 17(4A) of the SARFAESI Act and could not have been entertained.
4. Learned counsel appearing for respondents however contends that the suit for injunction is outside the purview of Section 17(4A) of SARFAESI Act and the 4 civil remedy for protection of possession can still be considered by the trial Court.
5. It is further contended that the plaintiff has charge over the property insofar as the property belongs to defendant No.1 and the enforcement of liability of defendant No.1 as regards the security deposit of Rs.25.00 lakhs is as against the property.
6. Heard both the sides and perused the impugned order of the trial Court.
7. It is to be noted that the trial Court has no doubt referred to the judgment of the Apex Court in the case of Vishal N. Kalsaria v. Bank of India reported in (2016) 3 SCC 762, but however, it is to be noted that amendment to Section 17(4A) of SARFAESI Act was subsequent to the judgment. Despite the petitioner having been taken up a specific contention, the trial 5 Court has not dealt with the said contention while passing the impugned order.
8. It is clear that Section 17(4A) of the SARFAESI Act provides that where any person claims tenancy or leasehold rights upon secured assets, it is the Debt Recovery Tribunal after examination of facts and evidence to decide after examination whether the lease of tenancy has expired or determined, or is contrary to Section 65A of the Transfer of Property Act, 1882 or is contrary to the terms of mortgage or is created after issuance of notice of default and demand by the Bank under sub-section (2) of Section 13(2) of the SARFAESI Act and further, powers are conferred on the Debt Recovery Tribunal to pass such orders as it deems fit in accordance with the provisions of the SARFAESI Act.
9. It is clear that the relief of injunction that is sought for rests on the claim arising out of the tenancy 6 relationship between the plaintiff and defendant No.1. If that were to be so, all incidental questions including the protection of possession is a matter to be decided before the Debt Recovery Tribunal under Section 17(4A) of the SARFAESI Act.
10. Accordingly, the impugned order of the trial Court is set aside and the plaint stands rejected. However, taking note of the peculiar facts of the case, it would be appropriate to further direct that after taking note of submission of learned counsel for the petitioner that no coercive steps would be taken for a period of three months from today within which time learned counsel for the respondent submits that necessary proceedings in accordance with law would be initiated to secure the interest of petitioner as regards protection of his possession as well as seeking for appropriate charge over the property of defendant No.1 insofar the 7 security deposit of Rs.25.00 lakhs stated to have been paid. Contentions of the parties are kept open.
Petition is accordingly disposed off.
Sd/-
JUDGE VGR ct:mhp