- (1.) The case pleaded in this writ petition dated June 3, 2014 is this. The property at 14, Elias Road, Agarpara, Khardah, 24 Parganas (North) (hereafter the said property) was mortgaged by the third respondent as security for obtaining loans from the first respondent (hereafter the bank) for the fourth respondent. Failure of the third and the fourth respondents to repay the dues of the bank having occasioned, it has proceeded against them in terms of the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereafter the Act). A notice dated May 9, 2014 inviting offers from interested purchasers has been issued by the bank in terms of Rule 8 of the Security Interest (Enforcement) Rules, (hereafter the Rules), whereby the said property has been put for sale on "as is where is" basis and such sale is fixed on June 23, 2014. The petitioner is a bona fide tenant under the third respondent, having been inducted in a portion of the said property in 2003 prior to creation of the mortgage in 2007. A suit instituted by the petitioner against the third respondent for declaration and permanent injunction is pending in the district court at Barasat, in connection whereof an interim order of injunction restraining the third respondent from evicting the petitioner is subsisting. Although the petitioner is in possession of the portion of the said property under tenancy and has a right to challenge the sale notice under Section 17 of the Act (since the encumbrance created by the tenancy is neither acknowledged in such notice nor does not make it clear that the said property is being sold subject to such tenancy), but it is unable to do so having regard to an order dated May 27, 2014 passed by the Kolkata Debts Recovery Tribunal No. II. While hearing S.A. No. 627 of 2014 (Sri Sanjoy Dutta v. UCO Bank), being an application filed under the Section 17 of the Act, it has been held therein that even though sale notice in respect of a secured asset might have been issued, an application thereunder would not be maintainable so long the secured creditor does not take physical possession of the secured asset. While holding so, the tribunal considered the judgment and order dated May 6, 2014 passed by me on W.P. No. 353 of 2014 (M/s. Mercury Exporters and Manufacturing Pvt. Ltd. & anr. v. Punjab National Bank and anr.), which has since been affirmed by an Hon'ble Division Bench by its judgment and order dated May 20, 2014 passed in APO No. 177 of 2014 (M/s. Mercury Exporters and Manufacturing Pvt. Ltd. & anr. v. Punjab National Bank and anr.). Approaching the tribunal having jurisdiction with a Section 17 application, in the circumstances, would be an idle formality.
(2.) Apprehending that the tribunal would decline to entertain its application under Section 17 of the Act, the petitioner has presented this writ petition seeking, inter alia, the following relief: "Your petitioners most humbly pray Your Lordships for (a) A writ of and/or in the nature of Certiorari do issue commanding the respondents their men, agents, servants and subordinates to transmit and certify the records of the instant case including the impugned Sale Advertisement dated 9.5.2014 being Annexure P-1 herein published by the respondent Nos. 1 and 2 in Times of India and in Bartaman for sale of the property situated at 14, Elias Road, Agarpara, Khardah, 24 Parganas, West Bengal in the name of Agarpara Company Limited, the respondent No. 3 herein so that on perusal of the same conscionable justice may be done by quashing or setting aside the said impugned sale advertisement; (b) A writ of or in the nature of Mandamus commanding the respondents and their men, agents, servants and subordinates not to give any effect or further effect to the impugned Sale Advertisement dated 9.5.2014 being Annexure P-1 herein published by the respondent Nos. 1 and 2 in Times of India and in Bartaman for sale of the property situated at 14, Elias Road, Agarpara, Khardah, 24 Parganas, West Bengal in the name of Agarpara Company Limited, the respondent No. 3 herein;"
(3.) According to Mr. Mitra, learned senior advocate for the petitioner, I had taken the view in Mercury [relying upon the decision of the Supreme Court in Standard Chartered Bank v. V. Noble Kumar, 2013 9 SCC 620], that the petitioner therein would be entitled to present an application under Section 17 of the Act before the relevant tribunal only after possession of the secured asset is handed over to the secured creditor. The writ appeal thereagainst has been dismissed upholding the said view, as a consequence whereof the tribunal has not been entertaining applications under Section 17 of the Act concerning cases where physical possession of the secured asset is still with the borrowers. An apprehension is expressed by him that if the petitioner waits for possession of the portion of the said property under its tenancy to be lost and thereafter approaches the tribunal for restoration of possession, the tribunal would have no authority to direct restoration of possession in view of the clear language of subsection (3) of Section 17 of the Act restricting relief that could be granted only to a borrower. An unreported decision of the Supreme Court of recent origin in Harshad Govardhan Sondagar v. International Assets Reconstruction Co. Ltd. & ors (Criminal Appeal No. 736 of 2014) has been cited for drawing support, where it has been observed as follows: "24. When we read sub-section (1) of Section 17 of the SARFAESI Act, we find that under the said sub-section 'any person (including borrower)', aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorised officer under the Chapter, may apply to the Debts Recovery Tribunal having jurisdiction in the matter within 45 days from the date on which such measures had been taken. We agree with the Mr. Vikas Singh that the words 'any person' are wide enough to include a lessee also. It is also possible to take a view that within 45 days from the date on which a possession notice is delivered or affixed or published under sub-rules (1) and (2) of Rule 8 of the Security Interest (Enforcement) Rules, 2002, a lessee may file an application before the Debts Recovery Tribunal having jurisdiction in the matter for restoration of possession in case he is dispossessed of the secured asset. But when we read sub-section (3) of Section 17 of the SARFAESI Act, we find that the Debts Recovery Tribunal has powers to restore possession of the secured asset to the borrower only and not to any person such as a lessee. Hence, even if the Debt Recovery Tribunal comes to the conclusion that any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor are not in accordance with the provisions of the Act, it cannot restore possession of the secured asset to the lessee. Where, therefore, the Debts Recovery Tribunal considers the application of the lessee and comes to the conclusion that the lease in favour of the lessee was made prior to the creation of mortgage or the lease though made after the creation of mortgage is in accordance with the requirements of Section 65A of the Transfer of Property Act and the lease was valid and binding on the mortgagee and the lease is yet to be determined, the Debts Recovery tribunal will not have the power to restore possession of the secured asset to the lessee. In our considered opinion, therefore, there is no remedy available under Section 17 of the SARFAESI Act to the lessee to protect his lawful possession under a valid lease.";