- (1.) Instant petition has been filed by M/s BD & P Hotels (India) (P) Ltd who was in possession of Hotel Mukandgarh Resorts since 04/08/2009 on having purchased lease hold rights through Respondent-6 (secured creditor) under Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 ("SARFAESI Act"), but has been dispossessed on 09/03/2010 pursuant to warrant of possession issued by the Executing Court, Jhunjhunu on 05/03/2010 in Execution Appl. No. 35/2009) at the behest of decree holder in execution of Arbitral Award dt. 15/02/2009 passed for recovery of possession and arrears along with interest against its lessee (Respondent-5), possession whereof was taken over by secured creditor (TFCI-Respondent-6) with whom lease hold rights were mortgaged creating security interest by Respondent-5 with the consent of lessor (Respondent-2 to 4) on 22/08/2008.
(2.) Question arising for consideration in instant case is as to whether Petitioner in whose favour lease hold rights over Mukandgarh property was transferred as an assignee of secured creditor (TFCI) under SARFAESI Act and after the possession was transferred, in absence of any conditions of lease being violated after having come into possession, could be dispossessed by Executing Court by issuance of warrant of possession impugned dt. 05/03/2010 in execution of Arbitral Award/ decree dt.15/02/2009 passed in arbitration proceedings between lessor (Respondents-2 to 4) & original lessee (Respondent-5), wherein indisputably neither secured creditor (TFCI) nor its assignee (Petitioner) at any point of time were heard, while the lessee (Respondent-5) was not holding possession of the property on the date of Arbitral Award/decree (supra) on account of being dispossessed by secured creditors under SARFAESI Act, in such situation, whether remedy lies to approach civil court for being dispossessed, by filing application Under Section 47 Code of Civil Procedure read with Order 21, Rule 97 & 99, Code of Civil Procedure or writ petition U/Article 226 & 227 of the Constitution is maintainable against warrant of possession impugned (supra).
(3.) Facts relevant for examining the controversy set forth are that Hotel Mukandgarh Resorts situated at Mukandgarh ("Mukandgarh property") was initially leased out by its owner (Respondents-3 & 4) vide registered lease deed dt.25/09/1992 in favour of M/s Mukundgarh Resorts with a right to sub-lease - pursuant to which, original lessee (M/s Mukundgarh Resorts) sub-leased Mukangarh Property in favour of M/s Cross Country Hotels (P) Ltd (Respondent-5) for a period of 30 years w.e.f. 14/07/1992 on the terms & conditions vide registered lease deed dt. 13/10/1992. Under Clause 5 of lease deed, the lessee has an option to create encumbrances on lease hold rights possessed by them in favour of financial institution for loan/finances for development of the Fort; and under the authority of Clause 5 whereof besides consent (Ann.R.6/1 & Rule 6/2) given by Respondents-2 to 4 in 1993, mortgaged lease hold rights of Mukandgarh property with Respondent-6 (TFCI) by creating security interest over the property.;