- (1.) Petitioner claims to be tenant of premises no. 27/10, Shiv Shakti Nagar, Brahmpuri, Meerut under an agreement between him and one Manish Kumar, the owner of the said premises through a notary affidavit dated 06.01.2012 for a period of nine years on monthly rent of Rs. 2500/-. Admittedly, Manish Kumar (hereinafter referred to as borrower) took a loan of Rs. 25.00 lacs on 04.04.2014 from respondent no. 3-Bank. The premises in question was pledged as security to the loan. Borrower defaulted in repayment of instalments and proceedings under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as SARFAESI Act) was initiated against the borrower. On failure on the part of borrower to make repayment of the outstanding debt in response to notice under Section 13 (2) of the SARFAESI Act, Bank exercised its right under section 13 (4) to take possession of the secured assets of the borrower. However, since secured asset, namely, premises in dispute was under possession of the petitioner, respondent-Bank made an application under Section 14 (1) of SARFAESI Act before the District Magistrate seeking assistance in taking possession of the secured assets. Additional District Magistrate (Finance & Revenue) vide order dated 17.02.2016 allowed the application and it appears that in pursuance thereof after dispossessing the petitioner, possession has been taken over by the respondent-Bank. In the back ground of the aforesaid facts, petitioner has approached this Court seeking following reliefs : (i) A writ, order or direction in the nature of certiorari quash the impugned order dated 17.02.2016 passed by respondent no. 2 in Application no. 35 of 2016 (Oriental Bank of Commerce v. M/s Ishar Enterprises) under Section 14 (1) SARFAESI Act, 2002. (ii) A writ, order or direction in the nature of mandamus commanding the respondent no. 3 to open the lock/seize of the petitioner's premises (ground floor).
(2.) It is submitted by the learned counsel for the petitioner that in his capacity as tenant, the petitioner is a lessee and has right to be in possession of the property during the period of lease and his right cannot be taken away save by authority of law. It is further submitted that provisions of SARFAESI Act do not provide that right of a lessee to remain in possession of the secured assets during the period of subsistence of lease automatically stands extinguished when secured creditor initiates any action under section 13 of the SARFAESI Act. Referring to language used in sub-section (13) of Section 13 of the SARFAESI Act, it is submitted that no borrower can proceed by way of sale, lease or otherwise any of the secured assets after receipt of notice under Section 13 (2) without consent of the secured creditor and there is no restriction on creation of lease of secured assets by the borrower before the receipt of notice by him under sub-section (2) of Section 13. It is also submitted that in the absence of any express language in the Act affecting a lease of a secured asset made by borrower in favour of lessee, the lease continues to be a valid lease even after the secured creditor initiates action under Section 13 of the SARFAESI Act. Relying upon the averments made in the writ petition, it is contended that agreement was entered into between the borrower and petitioner through notary affidavit on 06.01.2012 creating a tenancy/lease which is valid up to 05.01.2021 and admittedly, loan was taken by borrower from respondent no. 3 on 04.04.2014 and thus lease in his favour is a valid lease and he cannot be evicted except in accordance with law.
(3.) Sri Tarun Varma, learned counsel appearing for the Bank, in reply, submitted that in view of the provisions of Section 13 (4) of the SARFAESI Act, Bank as a secured creditor has a right to take over possession of the secured assets and since Section 35 gives over-riding effect to the provisions of the Act notwithstanding anything inconsistent therewith contained in any other law, sub-section 13 (4) will override the rights of lessee, if any, to remain in possession of the secured assets.;