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section (13) of Section 13 of the SARFAESI Act, however, shows that no borrower shall, after receipt of notice under sub- section (2) of section 13, transfer by way of sale, lease or otherwise any of his secured assets referred to in the notice, without the prior written consent of the secured creditor. He submitted that this provision in the SARFAESI Act is a clear indication that a lease of a secured asset by the borrower before receipt of a notice by him under sub- section (2) of Section 13 of the SARFAESI Act was not prohibited under the said Act. He submitted that in the absence of any express language in the SARFAESI Act affecting a lease of a secured asset made by the borrower in favour of a lessee, the lease continues to be a valid lease even after the secured creditor initiates action under Section 13 of the SARFAESI Act.

10. Mr. Shrish Kumar Mishra, learned counsel appearing for the Oriental Bank of Commerce in Civil Appeal arising out of S.L.P. (C) No.6639 of 2012, however, made a departure from the submissions made by Mr. Vikas Singh. He submitted that under sub- section (4) of Section 13 of the SARFAESI Act, the secured creditor has a right to take over the possession of the secured assets and since Section 35 of the SARFAESI Act provides that the provisions of the SARFAESI Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force, sub- section (4) of Section 13 of the SARFAESI Act will override the rights of the lessee to remain in possession of the secured assets. He relied on a decision of this Court in Raghunath Rai Bareja and Another v. Punjab National Bank and Others. [(2007) 2 SCC 230] for the proposition that the court must in accordance with the mischief rule of interpretation give a purposive interpretation to the provisions of the statute. He argued that if this mischief rule of interpretation is adopted by this Court, then the correct interpretation of sub- section (4) of Section 13 read with Section 35 of the SARFAESI Act would be that a lease will stand terminated on the secured creditor deciding to take the measures contemplated under sub- section (4) of Section 13 of the SARFAESI Act.

(13) No borrower shall, after receipt of notice referred to in sub- section (2), transfer by way of sale, lease or otherwise (other than in the ordinary course of his business) any of his secured assets referred to in the notice, without prior written consent of the secured creditor."

15. When we read the different provisions of Section 13 of the SARFAESI Act extracted above, we find that sub- section (4) of Section 13 provides that in case the borrower fails to discharge his liability in full within sixty days from the date of notice provided in sub- section (2) of Section 13 of the SARFAESI Act, the secured creditor may take recourse to one or more of the measures mentioned therein to recover his secured debt. One of the measures mentioned in clause (a) in sub- section (4) of Section 13 of the SARFAESI Act is to take possession of the secured assets of the borrower including the right to transfer by way of lease. Where, however, the lawful possession of the secured asset is not with the borrower, but with the lessee under a valid lease, the secured creditor cannot take over possession of the secured asset until the lawful possession of the lessee gets determined. There is, however, no mention in sub- section (4) of Section 13 of the SARFAESI Act that a lease made by the borrower in favour of a lessee will stand determined on the secured creditor deciding to take any of the measures mentioned in Section 13 of the said Act. Sub- section (13) of Section 13 of the SARFAESI Act, however, provides that after receipt of notice referred to in sub- section (2) of Section 13 of the SARFAESI Act, no borrower shall lease any of his secured assets referred to in the notice, without the prior written consent of the secured creditor. This provision in sub- section (13) of Section 13 of the SARFAESI Act and the provisions of the Transfer of Property Act enabling the borrower or the mortgagor to make a lease are inconsistent with each other. Hence, sub- section (13) of Section 13 of the SARFAESI Act will override the provisions of Section 65A of the Transfer of Property Act by virtue of Section 35 of the SARFAESI Act, and a lease of a secured asset made by the borrower after he receives the notice under sub- section (2) of Section 13 from the secured creditor intending to enforce that secured asset will not be a valid lease.

25. The High Court, however, has relied on Transcore v. Union of India & Anr. [(2008) 1 SCC 125] for holding that the SARFAESI Act provides for recovery of possession by non- adjudicatory process and it removes all fetters on the right of the secured creditor and that the secured creditor is entitled to take recourse to any one or more of the measures specified in Section 13(4) of the SARFAESI Act to recover a secured debt, notwithstanding anything contained in any other law for the time being in force. The High Court has also relied on the aforesaid decision of this Court in the case of Transcore (supra) to record a finding that the scheme of Section 13(4) read with Section 17(3) of the SARFAESI Act shows that if the borrower is dispossessed not in accordance with the provisions of the SARFAESI Act, the Debts Recovery Tribunal is entitled to restore status quo ante . The High Court has also relied on the observations of this Court in Transcore (supra) that the disputes which are sought to be avoided by Rule 8 read with Rule 9 of the Security Interest (Enforcement) Rules, 2002 are those where third party interest is created overnight and third party takes up the defence of being a bona fide purchaser for value without notice. We have perused the aforesaid decision of this Court in Transcore (supra) and we find that in that case, the question whether the secured creditor, in exercise of its rights under Section 13 of the SARFAESI Act, can take over possession of the secured asset in possession of a lessee under a valid lease was not considered nor was the question whether there is anything in the SARFAESI Act inconsistent with the right of a lessee to remain in possession of the secured asset under the Transfer of Property Act considered. In our view, therefore, the High Court has not properly appreciated the judgment of this Court in Transcore (supra) and has lost sight of the opening words of sub- section (1) of Section 13 of the SARFAESI Act which state that notwithstanding anything contained in section 69 or section 69A of the Transfer of Property Act, 1882, any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of the Act. The High Court has failed to appreciate that the provisions of Section 13 of the SARFAESI Act thus override the provisions of Section 69 or section 69A of the Transfer of Property Act, but does not override the provisions of the Transfer of Property Act relating to the rights of a lessee under a lease created before receipt of a notice under sub- section (2) of Section 13 of the SARFAESI Act by a borrower. Hence, the view taken by the Bombay High Court in the impugned judgment as well as in M/s Trade Well (supra) so far as the rights of the lessee in possession of the secured asset under a valid lease made by the mortgagor prior to the creation of mortgage or after the creation of mortgage in accordance with Section 65A of the Transfer of Property Act is not correct and the impugned judgment of the High Court insofar it takes this view is set aside.