Karnataka High Court
Smt Geetha vs State Bank Of India on 30 May, 2022
Author: S.G. Pandit
Bench: S.G. Pandit
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.)
2
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 3 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 4 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.5
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 6 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.