Andhra Pradesh High Court - Amravati
Jonnalagadda Siva Kumar, vs Andhra Bank on 17 September, 2019
Author: J. Uma Devi
Bench: J. Uma Devi
THE HONOURABLE SRI JUSTICE M. SEETHARAMA MURTI
AND
THE HONOURABLE MS. JUSTICE J.UMA DEVI
WRIT PETITION No.7713 of 2019
ORDER:(Per the Hon'ble Sri Justice M.Seetharama Murti) This writ petition is filed, under Article 226 of the Constitution of India, seeking verbatim the following relief:-
"....declaring the action of the 1st respondent in appointment of Advocate Commission order dated 03.06.2019 inCrl.M.P.No.109 of 2019 in C.F No.257 of 2019 on the file of the Chief Judicial Magistrate-cum-Principal Senior Civil Judge, Nellore under Section 4 of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to take physical possession of the schedule property through 5th respondent Advocate Commissioner, without verifying ownership of property, extent of property as being illegal, arbitrary and unjust and consequently direct the respondent/bank to peruse the right and title of schedule mentioned property grant some time enable the petitioner for clarification and to grant such other relief or reliefs.."
We have heard the submissions of the learned counsel for the petitioner and of learned standing counsel appearing for the 1st respondent/bank.
Having regard to the facts, as we are inclined to dispose of this writ petition, at the stage of admission, we are of the view that there is no need to await return of notices sent to the respondents 2 to 4. 2
We have perused the material record.
The case of the petitioner, as per pleadings and submissions, which is relevant for consideration, in brief, is this:-
Petitioner is a tenant of one of the shop rooms in an extent of 6¼ ankanams bearing Door No.15-384, Subedarpet, Opposite to Vijaya Dairy, Nellore city. One Vutukuru Ramesh Babu was the owner of the said shops. The other shop is in the occupation of the son of the said owner by name Vutukuru Preetham Babu/6th respondent. The 6th respondent was earlier doing mobile phones business in the said premises. As he was unable to carry on his business, in the year 2014, the petitioner has taken over the said business including the stock by purchasing the same. The petitioner is now running the said business under the name and style "Preetham Babu" by entering into an unregistered lease deed. Thus, the petitioner is a tenant of the shop rooms. The tenancy commenced in the year 2014. He is paying a monthly rent of Rs.2,000/- initially. The rent was later enhanced by 20%. He is presently paying monthly rent of Rs.3,400/-. While so, the first respondent/bank officials, without issuing any notice, came to the subject shops and warned the petitioner to vacate the shops/the business premises and further stated that otherwise, he would be evicted forcibly. The petitioner invested huge amount on his business and the business is the only sources of his livelihood. He had also filed O.S.No.382 of 2019, on the file of Principal Junior Civil Court, Nellore, against the bank and the landlord and the same is pending. On verification, the petitioner came to know that the bank issued notices under Section 13(2) and later Section 13(4) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security 3 Interest Act, 2002 ('SARFAESI Act' for short) and the Rules made thereunder and has taken symbolic possession. The 6th respondent issued a reply notice to the notices of the bank. There is no justification for the first respondent/bank in issuing the impugned notices and taking over symbolic possession and in obtaining order, dated 03.06.2019, for appointment of Commissioner to take physical possession of the subject property, which belongs to the landlord/6th respondent and in which the petitioner is a tenant. The petitioner cannot be evicted except by having recourse to the procedure established by law. Hence, the present writ petition is filed.
At the hearing learned counsel for the petitioner also submitted that since the petitioner is a tenant in the subject property, he is entitled to continue in possession of the property till he is vacated in accordance with the due procedure established by law and that his possession cannot be disturbed by the first respondent by invoking the provisions of the SARFAESI Act.
Learned standing counsel for the first respondent/bank would submit that the petitioner by claiming that he is a tenant in the schedule property raised certain issues of fact and that if that is so, the petitioner has to approach the Debts Recovery Tribunal in view of the provisions of Section 17(4A) of the Act. He, therefore, submits that the writ petition is not maintainable and is liable to be dismissed.
In reply, learned counsel for the petitioner would submit that in the event the writ petition is dismissed in the light of the contentions of the first respondent, liberty may be reserved to the petitioner to approach the Debts Recovery Tribunal and the possession of the petitioner may be 4 protected at least for a reasonable period of time to enable the petitioner to approach the Debts Recovery Tribunal and obtain appropriate orders.
Section 17(4A) vests with the Debts Recovery Tribunal, the authority, power and jurisdiction to examine and determine the claim of lease or tenancy. The said provision, which came to be inserted in the Act w.e.f., 01.09.2016, reads thus:
""(4A) Where- (i) any person, in an application under sub-
section (1), claims any tenancy or leasehold rights upon the secured asset, the Debt Recovery Tribunal, after examining the facts of the case and evidence produced by the parties in relation to such claims shall, for the purposes of enforcement of security interest, have the jurisdiction to examine whether lease or tenancy,-
(a) has expired or stood determined; or
(b) is contrary to section 65A of the Transfer of Property Act, 1882; or
(c) is contrary to terms of mortgage; or
(d) is created after the issuance of notice of default and demand by the Bank under subsection (2) of section 13 of the Act; and
(ii) the Debt Recovery Tribunal is satisfied that tenancy right or leasehold rights claimed in secured asset falls under the sub-clause (a) or sub-clause (b) or sub-clause (c) or sub- clause (d) of clause (i), then notwithstanding anything to the contrary contained in any other law for the time being in force, the Debt Recovery Tribunal may pass such order as it deems fit in accordance with the provisions of this Act.". As per said provision, the Debts Recovery Tribunal is having jurisdiction to examine claims of tenants and pass orders as it deems fit in accordance with the provisions of the SARFAESI Act, provided it is satisfied that the tenancy rights or leasehold rights claimed in secured assets fall under any one of the sub-clauses (a) to (d) under Section 17 (4A) (i) of the said Act. In that view of the matter, we are of the 5 considered view that the Writ Petition can be disposed reserving liberty sought for.
In the result, the writ petition is disposed of reserving liberty to the petitioner to approach the Debts Recovery Tribunal and initiate proceedings, which the law permits, within four weeks from the date of receipt of copy of this order and make a request to the Tribunal to grant appropriate interim orders and obtain interim orders, which the facts and the law permit. It is made clear that on failure of the petitioner to approach the Debts Recovery Tribunal and obtain orders, within the afore said time, the bank shall be at liberty to proceed further in the matter, however, in accordance with the procedure established by law. Till such time mentioned supra, the bank shall not take any coercive steps against the petitioner in respect of the subject property. No order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
_____________________________ M. SEETHARAMA MURTI, J _______________ J.UMA DEVI, J Date:17.09.2019.
Gk 6 THE HONOURABLE SRI JUSTICE M. SEETHARAMA MURTI AND THE HONOURABLE MS. JUSTICE J.UMA DEVI WRIT PETITION No.7713 of 2019 Date:17.09.2019 Gk