- (1.) IN the instant petition, the petitioner who happens to be an Advocate by profession, has challenged the action of the respondent No. 1 Bank in issuing the public notice dated 25.11.2010, inviting tenders for the sale of the property being the House No. 1555, Choura Rasta, Chokdi Modi Khana, Jaipur, to be held on 28.11.11 under the provisions contained in the securitisation and Reconstruction of Financial Assets and Enforcement of Security INterest Act, 2002(hereinafter referred to as the said Act)and the Security INterest (Enforcement) Rules, 2002 (hereinafter referred to as 'the said Rules').
(2.) IT has been alleged in the petition that the petitioner was occupying part of the said premises as tenant since last many years, however, the officers of the respondent Bank had put lock on the said premises and now have invited tenders for the sale of said property through public auction. The petitioner has prayed for the following reliefs in the petition:- i) the impugned Public Auction scheduled to be conducted on 28th of December, 2010 through the public notice/proclamation(Annex-6) by the Respondent No. 1 may kindly be declared as arbitrary, illegal unconstitutional, and against the law and consequently, may kindly be quashed so far as it affects the rights and premises of the petitioner; and ii)respondents be directed to restore the possession of the petitioner on the disputed premises; and be also directed not to put up any hurdles in running the office in the premises in question either themselves or through their administrators, assigns, servants or authorized representatives in any manner; and iii)the Hon'ble Court may kindly pass such other order or a direction which it may deem fit, just and proper in the facts and circumstances of the present case, in favour of the petitioner. iv)The costs through out be also awarded in favour of the petitioner. It appears that when the matter was placed for admission hearing, the Court on 11.2.2011, had issued notice to the respondents and directed that in the meantime, petitioner shall not be dispossessed from the rented premises. It may be noted that when the petitioner had sought for the relief of restoration of possession of the disputed premises, as he was already dispossessed as per the allegations made by him in the petition, the ex-parte direction not to dispossess him appears to have been given inadvertently. As such it was the duty of the learned counsel for the petitioner to point out to the Court that the petitioner was already dispossessed from the disputed premises. On the notices having been served, the petition was opposed by the respondent No.1-Bank by filing reply raising preliminary objection as to the maintainability of the petition and also disputing the tenancy rights of the petitioner. It was also contended that the auction notice was published in the news paper on 25.11.2010 after taking all the steps to recover the secured debt as per the provisions contained in the said Act. It is pertinent to note that respondent No.3 Smt. Satyabhama Agarwal, the borrower and the mortgagor who had mortgaged the disputed premises with the respondent No.1 bank to secure the repayment of the loan taken by her from the bank, has chosen to remain absent though duly served with the notice in this petition. It has been sought to be submitted by learned counsel Mr. Jayant Sharma, for the petitioner that the petitioner being an advocate by profession was running his office in the disputed premises since 1982 and his tenancy rights were sought to be jeopardized when the respondent No. 1 locked the said premises, which was part and parcel of House No. 1555 Chaura Rasta Chowkari Modikhana, Jaipur. According to Mr. Sharma, the respondent No. 1 could not have dispossessed the petitioner without following the due process of law. Mr. Sharma has relied upon the judgment of Karnataka High Court in Hutchison Essar South Limited v. Union Bank of India and another reported in AIR 2008 Karnataka 14 and in case of M/s Nitco Roadways Private Ltd. & Ors. v. Punjab National Bank, reported in AIR 2011 KARNATAKA 27, to buttress his submission that the Creditor/Bank could take only symbolic possession from the tenants invoking the provisions of the said Act and that the tenant could not be thrown out by the Secured Creditor/Bank without following the due process of law.
(3.) ON the other hand, the learned counsel Ms. Anita Agrawal for the respondent No.1 Bank, has vehemently submitted that the petition contains highly disputed questions of facts in as much as there was no document produced by the petitioner to show that he was the tenant of the respondent No.3 borrower in the disputed premises, when the respondent no.3 had created the mortgage in favour of the respondent Bank in the year 1996. According to her, the respondent bank had already taken over the possession of the disputed premises after taking measures under Section 13(4) of the said Act and that if the petitioner was aggrieved by the said measures taken by the bank in respect of the said mortgaged premises, the petitioner could have filed appeal in view of Section 17 of the said Act. Thus, according to Ms. Agrawal, there being an alternative, efficacious remedy available to the petitioner, the petitioner was not entitled to any relief in the petition, invoking extra ordinary jurisdiction of this court. Pressing into service, provisions contained in Section 35 of the Said Act, Ms. Agrawal submitted that the provisions of the said Act had an over-riding effect over the other law for the time being in force and that the validity of the said Act having also been upheld by the Apex Court, the petitioner could not challenge the action of the respondent taken under the said Act. She also submitted that the bank had already taken over the possession of the disputed premises, as admitted by the petitioner himself in the petition and had sought restoration of possession, however the Court had passed the ex-parte interim order on 11.2.2011 to the effect that the petitioner shall not be dispossessed from the rented premises. According to her when the petitioner was already dispossessed as per his own averments in the petition, such an order not to dispossess the petitioner from the rented premises had no meaning. At the out set, it may be stated that though the petitioner had come with the allegations in the petition stating that he was dispossessed from the disputed premises by the respondent No.1 and his possession was required to be restored, the learned counsel for the petitioner could not have submitted and prayed before the Court, when the matter was placed for admission hearing on 11.2.2011, not to dispossess the petitioner. As rightly submitted by learned counsel Ms. Agrawal for the respondent bank, such an ex-parte interim order not to dispossess the petitioner would not have any meaning or effect when he was already dispossessed on the date of filing of the petition even as per his own averment. There is also much force in the argument of Ms. Agrawal for the respondent No.1 Bank that the petitioner though has claimed tenancy rights in respect of the disputed premises, he has not produced any document worth the name to show that the premises in question was already let out by the respondent No. 3 Smt. Satyabhama Agrawal to the petitioner when she had mortgaged the said property with the respondent No.1 bank towards the security of the loan taken by her. The petitioner has produced the copies of certain letters addressed by third party to him mentioning the address of the disputed premises, which are of the year from 1985 to 1992. Apart from the fact that such letters do not establish any right much less tenancy rights of the petitioner, they related to the year prior to the date of mortgage which had taken place in the year 1996. The copy of notice produced at Annexure 5, allegedly addressed by one advocate named Man Mohan Lal Sharma to the petitioner also does not appear to be genuine one. Even otherwise, such copies of some letters written by third parties would not establish the tenancy rights of the petitioner in the disputed premises. It is also pertinent to note that there is no document worth the name produced by the petitioner to show that he was in possession of the disputed premises at the time of and after the mortgage was created by the respondent No.3 in favour of the respondent No. 1 bank, either in the capacity of tenant or otherwise. As rightly submitted by learned counsel Ms. Agrawal for the respondent bank, since the petition involves highly disputed questions of facts as regards the tenancy rights of the petitioner with regard to disputed premises, the petition, invoking extra-ordinary jurisdiction under Art. 226, 227 of the Constitution of India, could not be entertained. ;