ASHOK BHUSHAN,J. - (1.) THESE three writ petitions have been heard together and are being decided by this common judgment. In Writ Petition No.64630 of 2012 (Ratan Kumar and others vs. State Bank of India and others) pleadings are complete which is being treated as leading writ petition.
(2.) BRIEF facts giving rise to these three writ petitions are; M/s J.P. Telecom obtained a cash credit limit and term loan from State Bank of India. Smt. Jaggi Devi was one of the guarantors of the loan. House No.149, Bai Ka Bagh, Kydganj, Allahabad was mortgaged to the Bank by deposit of title deed. The guarantee agreement was executed on 25th June, 2007. The borrower failed to repay the loan. The State Bank of India initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the 2002 Act) by issuing notice under Section 13(2) dated 25th August, 2008 for recovery of its dues. A notice was also sent to Smt. Jaggi Devi wife of Raja Ram and Ajay Kumar son of Raja Ram, the guarantors. The details of House No.149 which was mortgaged, was mentioned in Part-II of the notice. The borrower failed to repay the amount within 60 days, hence Bank invoked its power under Section 13(4) of the 2002 Act. The possession notice dated 14th September, 2009 was issued. Before issuing the possession notice, the Bank has filed an application under Section 14 of the 2002 Act before the District Magistrate, Allahabad for taking possession of the house. The District Magistrate passed an order on 19th June, 2009 under Section 14 of the 2002 Act for taking possession of mortgaged assets including House No.149 area 25.09 square meters and 116.92 square meters. The Bank took symbolic possession of House No.149 on 14th September, 2009. A notice was also published in the newspapers on 15th September, 2009 informing the public in general that possession of the mortgaged assets have been taken and public in general has been cautioned that no transaction (sale/purchase) be made of the mortgaged assets. M/s J.P. Telecom was mentioned at Item No.10 of the notice. The Bank, after taking symbolic possession, proceeded to auction the House No.149. One Neeraj Kumar (respondent No.5) in Writ Petition No.64630 of 2012 purchased the house in auction on 27th May, 2011for an amount of Rs.35,51,000/-. The sale was confirmed on 11th June, 2001 on which date the sale certificate was issued to the auction purchaser. The Bank which had taken symbolic possession of the house earlier on 14th September, 2009 had written a letter dated 18th July, 2011 to the Additional City Magistrate-III, Allahabad forwarding the copy of the order of the District Magistrate passed under Section 14 of the 2002 Act dated 19th June, 2009 stating that possession of the mortgaged assets was taken on "symbolic possession basis' and no physical possession was taken. The Bank by the said letter requested for taking of possession. The Additional City Magistrate on 4th August, 2011 wrote to the Station House Officer, Police Station Kydganj to get the possession of the house transferred in favour of the Bank and police help be provided. Notice dated 28th July, 2012 was issued in the name of Smt. Jaggi Devi that possession of the house be transferred to the Bank by 7th August, 2012 failing which police force shall be used. The Bank has again written to the Additional City Magistrate on 4th December, 2012 for handing over the possession to the Bank. One Vinod Kumar Jaiswal, one of the sons of Smt. Jaggi Devi, had filed an appeal under Section 17 of the 2002 Act being Appeal No.122 of 2011 against the auction which appeal was dismissed on 28th February, 2012. Against the order of Debts Recovery Tribunal securitisation appeal being Appeal No.R-39 of 2012 was filed by Vinod Kumar Jaiswal which too was dismissed on 3rd December, 2012. One Ajai Kumar Jaiswal another son of Smt. Jaggi Devi has also filed an appeal under Section 17 of the 2002 Act which was dismissed on 5th December, 2012. The police officials, bank officials and certain persons reached the House No.149 on 4.12.2012 and sealed the shops existing in the ground floor of the house. Writ Petition No.64630 of 2012 was filed by four petitioners in this Court on 10th December, 2012 claiming to be tenants of the shop situate in House No.149. Petitioner No.1 claims to be tenant since 1988, petitioner No.2 since 1991 and petitioners No.3 and 4 since 2007. Petitioners' case in the writ petition is that on the ground floor there are 14-15 shops and the landlord lives on first floor. The petitioners' case further is that on 5th December, 2012 the shops were forcibly sealed. The petitioners in the writ petition claim for a direction for opening the seal and further direction that respondents may not interfere in the peaceful possession and working of the petitioners over the shops.
(3.) IN Writ Petition No.64630 of 2012 this Court passed an interim order on 21st December, 2012 to the following effect:- "Amendment application as prayed is allowed. Shri Neeraj Kumar is impleaded as respondent no.5, who is represented by Shri Sandeep Arora. Learned counsel for the petitioners may carry out the amendment during the course of the day. Petitioners' claim to be the tenants of premise No. 149, Bai Ka Bagh (Kydganj) Allahabad. The proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 were taken against the borrower and in pursuance of the said proceedings, the aforesaid premise has been sold in favour of the respondent no.5 by sale certificate dated 11/6/2011. On an application filed under Section 14 of the Act, 2002, the District Magistrate passed an order on 19/6/2009, for giving possession of the aforesaid premise. Petitioners' case is that in pursuance of the proceedings under the Act, 2002 on 04/12/2012, the shops of the petitioners who are tenant in the aforesaid premise have been sealed. Petitioners' case further is that the petitioners do not challenge the proceedings under the Act, 2002, nor the right of the respondent no.5, on the basis of the auction purchased, but their submission is that they cannot be evicted in the guise of taking possession under the Act, 2002 either by the Bank or by the auction purchaser. Submission needs scrutiny. Prima facie case has been made out for grant of interim relief. Let a counter affidavit be filed within ten days. Put up on 03/1/2013, as supplementary fresh. By that time rejoinder affidavit may be filed. We direct that the seal of the petitioners shops be opened within three days from the date of filing a certified copy of this order." ;