- (1.) THESE three petitions were connected with the S.B.C.W.P. 999/2011, as per the orders passed by the co-ordinate bench and therefore were heard together. However, during the course of arguments, it had transpired that the parties and proceedings of Petition No. 999/2003 were different from the present ones and, therefore, the said petition is being disposed of by separate order. In the present three petitions, the petitioners are different, however, the respondent bank in the capacity of a mortgagee, is the same, and the other respondents are the mortgagors/guarantors who had mortgaged the properties in question by way of security in respect of the credit facilities availed of by one M/S Vipul Gems. Hence, they are disposed of by this common order.
(2.) AT the out-set, it may be stated that though the subject matter and the parties in S.B.C.W.P. 999/2011 were different, the S.B.C.W.P. 1928/2011 was directed to be connected with the Petition No. 999/2011 at the request of learned counsel for the petitioner, and an ex-parte order, restraining the respondents not to dispossess the petitioner from the rented premises was passed on 14.2.2011, on the lines of the ex-parte order passed in petition no. 999/2011. Similarly as per the request made by the learned counsel for the petitioner, the Petition No. 2234/2011 was also connected with the other two petitions being Nos. 999/2011 and 1928/2011 and similar ex-parte order not to dispossess the petitioners from the rented premises was passed by the Court on 21.2.2011. The Petition No. 2225/2011 was directed to be connected with the Petition No.2234/2011, on the submissions made by the learned counsel for the petitioner that the said petition was identical as the Petition No.2234/2011. When all the Petitions were listed before this Court, a query was put by the Court as to how the matters were connected with each other, and it was submitted by the learned counsel for the petitioner that the issue involved in all the petitions as to whether right of the tenant could be extinguished by mere issuance of notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the said Act), being the same, request for connecting these petitions with each other was made. Be that as it may, all these petitions were heard together at the admission stage in view of the said orders passed by the co-ordinate bench and are being disposed of by this common order. The facts and proceedings out of which the present petitions have arisen being different, it would be relevant and necessary to narrate the factual position of each of the three petitions separately. The present petition has been filed by the petitioner M/s. Vikas Book Ltd., a registered company through its Director Shri Ravi Jain against the respondent No. 1 Bank of Baroda and respondent No. 2 Shri Umraomal Chordia, seeking issuance of writ, order or direction against the respondent No. 1 Bank, to the effect that the Bank may proceed under the said Act without disturbing the tenancy rights of the petitioner and that the petitioner should not be evicted from the property in question without following the due process of law. It has been averred inter-alia in the petition that the petitioner was in occupation as tenant of the residential premises- 13, Thakteshahi Road, Jawahar Lal Nehru Marg, Jaipur , by virtue of the rent note dated 10.5.2006 executed by the landlord i.e. respondent no.2 in favour of the petitioner. According to the petitioner, on 7.2.2011, the officers of the respondent no. 1 along with some police personnel came to the said premises and asked the petitioner to vacate the premises. At that time, the petitioner came to know about the order dated 2.2.2011, passed by the District Collector, Jaipur, under Section 14 of the said Act, in which the bank was ordered to take physical possession of the said premises. It is further averred in the petition that the petitioner thereafter came to know from the office of the respondent bank that the respondent no.2 had stood as guarantor towards the security of loan taken by M/S Vipul Gems Pvt. Ltd. and the said property was mortgaged with the respondent no. 1 bank by the respondent no. 2. Since M/S vipul Gems Pvt. Ltd. had not maintained the financial discipline, its account was declared as Non-Performing Asset (NPA) and therefore, the bank had taken the recourse to the measures under Section 13(4) of the said Act. It has been alleged in the petition that the petitioner being the tenant of the respondent No. 2, the respondent no. 1 Bank could not evict the petitioner from the disputed premises without following the due process of law. The said petition has been resisted by the respondent No. 1 Bank by filing the reply denying the allegations and averments made in the petition and further raising preliminary objections as regards the maintainability of the petition under Art. 226 of the constitution of India and in view of the alternative efficacious remedy being available to the petitioner under the said Act. The respondent No. 1 has also disputed the status of the petitioner being that of the tenant and contended that the petition involving disputed questions of facts, should not be entertained by the High Court in exercise of the extra-ordinary writ jurisdiction under Art. 226 and 227 of the Constitution of India. It has been further contended that the property in question was mortgaged by the respondent no.2 towards the security for the repayment of loan advanced to the borrower M/S Vipul Gems along with other properties. Since the said M/S Vipul Gems did not pay the dues of the bank, actions were initiated against borrower/mortgagor under Section 13(4) of the said Act and police assistance was also sought from the District Magistrate, Jaipur, who had passed the order dated 2.2.2011, under Section 14 of the said Act. It has also been contended in the said reply that the petition was filed by the petitioner in collusion with the respondent no. 2 so as to create obstructions in the way of the respondent bank from taking possession of the disputed property and to frustrate the dues of the bank. The present petition has been filed by the petitioners M/S Arham Jewellers, a registered partnership firm through its partner Arpit Sancheti against the respondent bank of Baroda and Shri Umraomal Chordia, seeking issuance of writ, order or direction for quashing and setting aside the impugned order dated 4.9.2009 , passed by Addl. Civil Judge(Jr. Div.), Jaipur City, Jaipur, and the order dated 1.10.2009 passed by the Additional District Judge No.9, Jaipur City, Jaipur, and further for restraining the respondents from taking the possession of the suit property i.e. 1632 Sonthaliwalon Ka Rasta, Chaura Rasta, Jaipur, from the petitioners without adopting the due process of law. It has been averred in the petition inter-alia that the petitioner had taken on lease the said premises from the owner Shri Umrao Mal Chordia in the year 1996 and since then he is in lawful possession thereof as the tenant. Since the petitioner came to know that the respondent Bank of Baroda was intending to take coercive action in the form of forcible possession and compulsory sale of the said premises, the petitioner filed the civil suit in the court of Addl. Civil Judge (Jr. Div.), Jaipur City, Jaipur. The petitioner also filed an application seeking temporary injunction under Or. XXXIX Rule 1 and 2 read with Section 151 of C.P.C. The trial court vide its order dated 4.9.2009 rejected the said application holding that once proceedings were initiated under Section 13 of the said Act, the Civil Court would not have the jurisdiction to entertain the suit and that the only remedy available to the aggrieved person like petitioner was to file an application under Section 17 of the said Act. Being aggrieved by the said order of trial court, the petitioner had preferred an appeal before the Appellate Court, which vide the impugned order dated 1.10.2009 dismissed the said appeal. The petitioner thereafter filed the present petition. On the notices having been served, the respondent bank has filed the reply in the present petition raising similar contentions as raised in the reply filed in petition being No. 1928/2011. In both the petitions i.e. No. 22234 and 1928/2011, the respondent bank has produced number of documents in support of its contentions raised in the reply. In both the petitions the respondent Umraomal Chordia , the owner of the disputed premises has chosen to remain absent, though duly served. The present petition has been filed by M/s Chordia Safe Deposit and Vaults Pvt. Ltd., a registered company through its Director Ravi Jain against the respondent bank of Baroda and Shri Shanti Kumar Vipul Kumar Chordia, seeking issuance of writ, order or direction, quashing and setting aside the impugned order dated 4.9.2009 passed by the Additional Civil Judge (Jr. Div.), Jaipur City, Jaipur, and the impugned order dated 1.10.2009 passed by the A.D.J.No.9, Jaipur City, Jaipur and further restraining the respondents from taking possession of the suit property being 1633, Sonthaliwalon Ka Rasta, Chaura Rasta, Jaipur, from the petitioner without adopting due process of law. It has been averred in the petition inter-alia that the petitioner had taken on rent the said premises from its owner Shanti Kumar Vipul Kumar Chordia (HUF), in the year 1996 and since then is in lawful possession as the tenant. The petitioner has made similar allegations and averments in this petition as are made in the petition no. 2234/2011. In this petition, notices have not been issued to the respondents, and only the order to connect this petition with the petition No. 2234/2011 was passed. The bone of contention raised by the learned counsel Mr. Nitin Jain for the petitioners in all the petitions is that the respondent-bank could not take the possession of the disputed premises from the petitioners who are the tenants without following the due process of law. According to him the tenancy is a creation of contractual relationship between the landlord and tenant and therefore, would be governed by the provisions contained in the Rajasthan Land Control Act. Relying upon the judgments of various High Courts, he submitted that the secured creditor i.e. the respondent-Bank had no powers to evict the tenants from the mortgaged property, and that the validity of such action taken by the respondent-Bank cannot be decided by the Debts Recovery Tribunal under Section 17 of the said Act. In this regard Mr. Jain has relied upon the judgment of Gujarat High Court in case of Dena Bank Vs. Shri Sihor Nagarik Sahakari Bank Ltd. & Ors. AIR 2008 Gujarat 110, of Karnataka High Court in case of Nitco Roadways Pvt. Ltd. & Ors. Vs. Punjab National Bank AIR 2011 Kant 27, and in case of Hutchison Essar South Ltd. Vs. Union Bank of India & Anr. AIR 2008 Karnataka 14 and of Delhi High Court in case of Vicky Kumar Rana Vs. Kamal Kumar Nangia & Ors. AIR 2010 Delhi 210. Mr. Jain has also relied upon the decision of the Apex Court in case of Vimlaben Ajitbhai Patel Vs. Vatslaben Ashokbhai Patel & Ors. (2008) 4 SCC 649 in support of the submission that possession of any person cannot be disturbed without following due process of law. As regards the jurisdiction of civil court, learned counsel Mr. Jain has submitted that despite specific bar against the jurisdiction of civil court specified in various acts, the other High Courts have held that the civil court alone could decide and determine the rights of the parties which are of civil nature. In this regard Mr. Jain has relied upon the judgment of Madras High Court in case of Arasa Kumar & Anr. Vs. Nallammal & Ors. II (2005) BC 127, of Gujarat High Court in case of Naliniben Rajnikant Patel & Ors. Vs. Rashmikant Manubhai Amin & Ors. I (2011) BC 99 (DB), of Karnataka High Court in case of Krishna Vs. Kedarnath & Ors. III (2006) BC 9 (DB), and of Andhra Pradesh High Court in case of Branch Manager, State Bank of India, Commercial Branch, Ongole Vs. Chinigepalli Lathangi & Ors. III (2007) BC 35. Mr. Jain has also relied upon the decision of the Supreme Court in case of Nahar Industrial Enterprises Ltd. Vs. Hong Kong and Shanghai Banking Corporation (2009) 8 SCC 646 in support of his submission that all courts are tribunals but all tribunals are not courts and, therefore, civil court would have jurisdiction to try all types of suits unless the jurisdiction of civil court is expressly ousted under a particular Statute. Relying upon various provisions of the Rajasthan Rent Control Act and the said Act Mr. Jain has submitted that the secured creditor i.e. the respondent-Bank had to file suit for eviction before the Rent Tribunal for claiming the actual possession of the disputed premises from the petitioners. He also argued that the respondent-Bank while taking the measures under Section 13(4) of the said Act against defaulter, could take only symbolic possession of the premises if it was in occupation of the tenant. Mr. Jain therefore, submitted that the order dated 2.2.11 passed by the District Collector Jaipur, challenged in the SBCWP No. 1928/11 and the orders passed by the courts below challenged in the SBCWP No. 2234/11 and 2225/11 deserve to be set aside. Repelling the submissions made by the learned counsel Mr. Nitin Jain for the appellant, Mr. R.K. Salecha, learned counsel for the respondent-Bank, has vehemently submitted that these are the frivolous litigations filed by the petitioners at the instance of the respondents-mortgagors who had mortgaged the premises in question by way of security given towards the credit facilities availed of by the borrower M/s. Vipul Gems Pvt. Ltd. According to him, the borrowers-guarantors having failed to succeed in stalling the recovery proceedings initiated by the respondent-Bank under the provisions contained in the said Act, the proxy litigations by means of present petitions have been filed at their instance by the petitioners. Mr. Salecha vehemently submitted that the concerned mortgagors while mortgaging the said properties with the respondents-Bank had not disclosed that the said properties were tenanted properties occupied by the petitioners and, therefore, the status of the petitioners as that of tenants in all the petitions is highly disputed question of fact which could not be decided by the High Court in exercise of the extraordinary jurisdiction under Article 226 & 227 of the Constitution of India. Pressing into service Section 17 read with Section 34 of the said Act Mr. Salecha submitted that the aggrieved petitioners could approach the Debts Recovery Tribunal under Section 17 of the said Act and that the jurisdiction of the civil court, to entertain any suit or proceeding in respect of which Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under the said Act, is barred under Section 34 of the said Act. He therefore, submitted that both the courts below have rightly dismissed the applications of the petitioners seeking temporary injunction in the suits filed by them, on the ground of having no jurisdiction. Hence, the orders passed by the two courts below which are under challenge before this court in the two petitions being No. 2234/11 and 2225/11deserve to be confirmed. Mr. Salecha has also relied upon the judgments of Apex Court in case of Mardia Chemicals Ltd. Vs. Union of India & Ors. AIR 2004 SC 2371 and in case of Nahar Industrial Enterprises (supra) in support of his submissions. Lastly, relying upon the judgment of Division Bench of Madras High Court in case of Sree Laxmi Products REP Vs. State Bank of India AIR 2007 Madras 148 Mr. Salecha has submitted that the tenant can be dispossessed in pursuance of the recovery proceedings against the borrower and that in view of Section 35 of the said Act, the provisions of the said Act have effect notwithstanding anything inconsistent therewith contained in the State Rent Control Act or any other Law for the time being in force. In order to appreciate the rival contentions raised by the learned counsel for the parties, it would be necessary to refer to and reproduce the relevant provisions of the said Act. Section 13 of the said Act deals with the enforcement of the security interest and sub-section 4 thereof empowers the secured creditor to take recourse to any of the measures mentioned therein to recover the secured debt, in case the borrower fails to discharge his liability in full within the prescribed time limit. One of such measures mentioned in Section 13(4) is to take possession of the secured assets of the borrower including the right to transfer by way of lease assignment or sale for realising the secured assets. The relevant part of Section 13(4)(a) reads as under :- 13(4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:-- (a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset.
(3.) THE word borrower is defined under Section 2(f) of the said Act, which reads as under :- borrower means any person who has been granted financial assistance by any bank or financial institution or who has given any guarantee or created any mortgage or pledge as security for the financial assistance granted by any bank or financial institution and includes a person who becomes borrower of a securitisation company or reconstruction company consequent upon acquisition by it of any rights or interest of any bank or financial institution in relation to such financial assistance. Section 17 of the said Act confers right upon the person including the borrower aggrieved by any of the measures taken under Section 13(4),to make application to the Debts Recovery Tribunal. Relevant part of Section 17(1) reads as under :- 17. Right to appeal.--(1) 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 this Chapter, may make an application along with such fee, as may be prescribed to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken. As regards the jurisdiction of civil court, Section 34 of the Act is relevant, which reads as under :- 34. Civil court not to have jurisdiction.-- No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993). ;