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2009 DIGILAW 350 (CAL)

Arun Kumar Sarswat v. STATE OF WEST BENGAL

2009-05-05

SANJIB BANERJEE

body2009
Judgment :- (1) The writ petitioner questions the propriety of the respondent bank in having caused the petitioner to be dispossessed from a property without following due process pf law. (2) The petitioner claims to have entered into an agreement with Super Tech Limited for being inducted as a monthly tenant at an apartment measuring about 365.72 sq.ft. on the sixth floor of premises No. 18A, Park Street. The agreement, a copy whereof is annexure P 2 to the petition, is dated December 4, 2002. The document, on a stamp paper of Rs.10/-, records that a security deposit of Rs.1 lakh had been paid by the petitioner which was refundable without interest at the time of the petitioner vacating the premises. The tenancy was to be for a period of 15 years and the petitioner was to use the flat either for residential or business purpose. (3) At the fifth paragraph of the petition it is averred that on November 16, 2005 some persons "claiming themselves to be officers of Allahabad Bank" called at the petitioners office at the said premises and represented that since the "petitioners landlord" had failed to repay a loan of Rs. 1,80,57,350/-, an officer of the bank authorised under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the said Act) was empowered to take possession of the premises which had been mortgaged to the bank. It is stated in the petition that the authorised officer of the bank took symbolic possession of the premises since the petitioner was in possession thereof. It is evident from paragraph 5 of the petition that the bank attempted to serve a notice on the petitioner but the "petitioner refused to accept the notice." (4) The narration in the petition quantum leaps to March, 2009. The petitioner says that he had "altogether forgotten about the incident when suddenly on 13.03.2009 the authorised officer of (the bank) along with a team of police personnel... and local musclemen forced into (the) petitioners office." The petitioner claims to have been dispossessed on such date and subsequent enquiry by the petitioner revealed that the bank had approached the Chief Metropolitan Magistrate for police protection to obtain possession of the premises. A copy of the Magistrates Order of September 9, 2008 has been appended to the petition. and local musclemen forced into (the) petitioners office." The petitioner claims to have been dispossessed on such date and subsequent enquiry by the petitioner revealed that the bank had approached the Chief Metropolitan Magistrate for police protection to obtain possession of the premises. A copy of the Magistrates Order of September 9, 2008 has been appended to the petition. It is the petitioners case that the bank suppressed the fact that the petitioner was in possession of the property at the time that it approached the Magistrate under Section 14 of the said Act. The petitioner insists that the bank could not have obtained possession of the property from the petitioner without the petitioner having due notice of any proceedings in such regard and without any adjudication being made in the petitioners presenca (5) The petitioner has relied on a judgment of this Court reported at AIR 2008 Calcutta 9 : (2008)1 WBLR (Cal) 106 (Manager, UCO Bank v. Samar Sarkar and Ors.). In that case an order of dismissal of a defendants application for rejection of a plaint was carried in revision under Article 227 of the Constitution. The plaintiff had sought a declaration of his tenancy rights under a constituent of a bank and a further declaration that the plaintiff could not be evicted without due process of law and ancillary reliefs. The defendant bank applied under Order VII Rule 11 of the Civil Procedure Code on the ground that the suit was barred under Sections 13, 17 and 34 of the said Act of 2002. The revisional application failed upon the following view taken at paragraph 10 of the report: "10. None of the provisions of the said Act authorises the bank to recover possession from a tenant under the borrower in a mortgaged property in the process of recovery of its dues from its borrower. The revisional application failed upon the following view taken at paragraph 10 of the report: "10. None of the provisions of the said Act authorises the bank to recover possession from a tenant under the borrower in a mortgaged property in the process of recovery of its dues from its borrower. If that be so, the bank cannot evict the tenant of a borrower from a mortgaged property by virtue of any of the provisions of the said Act and if any action of the bank which is not protected under the said Act, is challenged by such a tenant in a suit, such challenge cannot be held to be barred under the provision of Section 17 of the said Act." (6) The petitioner relies on a judgment reported at AIR 1968 SC 620 (Lallu Yashwant Singh v. Rao Jagdish Singh and Ors) to emphasise on the approval by the Supreme Court of the Privy Councils enunciation of the law in 1924, that in India persons are not permitted to take forcible possession, they must obtain such possession as they are entitled to through a Court. It is the petitioners contention that in the absence of any form of adjudication, even a rank trespasser cannot be removed from any property and the entire procedure adopted by the bank which is an authority answering to the description under Article 12 of the Constitution, smacks of vindictiveness and arbitrariness. (7) The bank has produced a copy of a document of September 17, 1999 evidencing mortgage of the same property by Super Tech Alloy Foundry Private Limited in favour of the bank. The bank refers to clause 3 of the document : "3. (7) The bank has produced a copy of a document of September 17, 1999 evidencing mortgage of the same property by Super Tech Alloy Foundry Private Limited in favour of the bank. The bank refers to clause 3 of the document : "3. The Borrower(s) further undertake(s) to the Bank that during the continuance of the said Mortgage to be created by Deposit of Title Deeds the Borrower(s) will not without the written consent of the Bank first hand and obtained, grant any lease of or create any further charge on the mortgage property or any part thereof in favour of any person or persons, firm or Company or any other body corporate and that any lease or charge if granted or created without the aforesaid consent of the Bank shall not and will not be binding on the Bank and will be treated by the Bank as void and inoperative." (8) The bank says that the view expressed in Samar Sarkar is an aberration and refers to judgments reported at AIR 2007 Madras 148 (Sree Lakshmi Products Rep. by its Partners. State Bank of India), AIR 2007 Gujarat 172 (Oriental Bank of Commerce v. Naresh Khushaldas Gangtani), AIR 2007 Kerala 114 (Business India Builders and Developers Ltd. v. Union Bank of India and Ors.), AIR 2008 Kerala 179 (Kottakkal Co-operative Urban Bank v. T. Balakrishnan and Anr.), AIR 2008 PandH 107 (M/s. Delhi Punjab Goods Carrier Pvt. Ltd. v. Bank of Baroda), AIR 2008 Gujarat 110 (Dena Bank v. Shri Sihor Nagarik Sahakari Bank Ltd. and ors) and AIR 2009 Madras 10 (Indian Overseas Bank v. M/s. Sree Aravindh Steels Ltd. and Ors) for such purpose. (9) In Sree Lakshmi Products the petitioner invoked Article 226 of the Constitution to resist the bank from removing the petitioner from a property on the ground that a lease obtained by the petitioner therein from the principal debtor was protected under the Rent Control Act. The Division Bench noticed the purpose of the said Act of 2002 and the Supreme Court pronouncement on the scheme of the said Act expressed in Transcore v. Union of India reported at AIR 2007 SC 712 . The Division Bench noticed the purpose of the said Act of 2002 and the Supreme Court pronouncement on the scheme of the said Act expressed in Transcore v. Union of India reported at AIR 2007 SC 712 . The Madras High Court read the Supreme Court dictum in Transcore to imply that a bank or financial institution was entitled to take actual possession of the secured assets from the borrower or from any other person in terms of Section 13(4) of the said Act. The view expressed is that a party aggrieved by such dispossession would have to take recourse under Section 17 of the Act and the deserving applicant was entitled to have the clock put back and status quo ante restored. (10) In Naresh Khushaldas Gangtani a Single Judge was of the opinion that in view of the provisions of the said Act of 2002 the jurisdiction of the Civil Court to entertain a suit had been taken away and the Civil Court would inherently lack jurisdiction to receive a claim by a person dispossessed or facing a threat of dispossession by a bank or financial institution exercising its rights under the said Act. (11) A Division Bench of the Kerala High Court observed in Business India Builders that if a borrower let out a property in violation of the terms of a declaration furnished to the bank, the tenant in occupation of the secured asset could be evicted by the bank under the said Act of 2002 as it had overriding effect over the Rent Act in Kerala. A Single Judge of the same Court recognised in Kottakkal Co-operative Urban Bank that a transferee of a property sold by a secured creditor on the strength of de jure possession had the right to demand actual physical possession from the secured creditor. (12) A Division Bench of the Punjab and Haryana High Court held in M/s. Delhi Punjab Goods Carrier Pvt. Ltd. that if a tenancy was granted by a borrower after creating a security in respect of the same property in favour of the creditor, the tenant was not entitled to any protection under law as the tenant was subject to the mercy to the secured creditor. Paragraph 2 of the short judgment is apposite: "2. Paragraph 2 of the short judgment is apposite: "2. From the above principles of law it is evident that tenancy has to be proved by a document or otherwise prior to the date of creation of charge of equitable mortgage. It is well settled that a mortgagee or mortgagor cannot induct a. tenant without mutual agreement and confer upon a tenant any right to the prejudice of either of the parties. In the instant case, the relationship of the petitioner as a tenant with the borrower as a landlord admittedly came into existence after the creation of charge by the borrower on the property which is under the tenancy of the petitioner and, therefore, no protection in law would be available to such a tenant and above principles laid down by Honble the Supreme Court would fully apply to the facts of the instant case and it has to be held that the petitioner in his capacity as tenant does not enjoy any right qua the charge holder-respondent Bank. The writ petition is wholly misconceived and is thus liable to be dismissed." (13) A Single Judge of the Gujarat High Court dealt with a tenancy in Shri Sihor Nagarik Sahakari Bank Ltd. that had been created prior to the borrower-landlord mortgaging the property to secure a debt. It was in such context that it was observed that a secured creditor would not have the authority under the said Act of 2002 to extinguish the rights of a tenant who had entered into a possession prior to the security being created by the landlord. Implicit in the judgment is the recognition that if the tenancy was created subsequent to the mortgage, the secured creditor would be entitled to dispossess the tenant by enforcing its rights under the said Act of 2002. (14) In Sree Aravindh Steels Ltd. the bank had applied before a Chief Judicial Magistrate for taking possession of the asset under Section 14 of the said Act. The application was dismissed and the petitioner carried the order to the High Court. The Court held that no notice was necessary to be issued to borrowers in proceedings under Section 14 of the said Act. (15) The bank has relied on a Division Bench judgment of the Bombay High Court reported at 2007 Cr LJ 2544 (Trade Well v. Indian Bank and Anr.). The Court held that no notice was necessary to be issued to borrowers in proceedings under Section 14 of the said Act. (15) The bank has relied on a Division Bench judgment of the Bombay High Court reported at 2007 Cr LJ 2544 (Trade Well v. Indian Bank and Anr.). The question posed in that case was whether in proceedings under Section 14 of the said Act the Chief Judicial Magistrate or the District Magistrate was required to give notice to the borrower or any person who may be in possession of the secured asset and give such person a hearing. The answer is found from the following passages at paragraphs 67-68 and 77 of the report; "67. When the bank takes any measures under Section 13(4), on account of failure of the borrower to repay the liability is already crystallized. Similarly when the secured creditor approaches the CMM/DM for assistance to take possession of the secured asset, the liability having been crystallized, there can be no adjudication about it at that stage. Possession has to be taken by non-adjudicatory process. There is no question of pointing out to the CMM/DM at that stage that the person who is to be dispossessed is a tenant, or that he has a prior registered sale deed or that in case of simple mortgage, ownership rights are not transferred; that the mortgagee is only entitled to an obligation to pay and, hence, possession cannot be taken or that such a course will improve or change the contract etc. Grievance that reasons for not accepting the objections were not communicated can also not be raised at that stage because consideration of reply is in the realm of adjudication which cannot be done under Section 14. Besides as per proviso to Section 13(3-A) and explanation to Section 17, non-communication of reasons to the borrower does not confer on the borrower or any person right to prefer an application under Section 17 at the stage of communication. This is the scheme of the NPA Act. It is so framed to achieve its object. At first blush this may appear harsh. But it is not so. The borrower and the third party is not remedy-less. Remedy is provided in Section 17 where appropriate relief can be given to them. This is the scheme of the NPA Act. It is so framed to achieve its object. At first blush this may appear harsh. But it is not so. The borrower and the third party is not remedy-less. Remedy is provided in Section 17 where appropriate relief can be given to them. It is after measures under Section 13(4) are taken that an application under Section 17 can be filed by a borrower or any person and in that application, all grievances including the grievance that reasons were not communicated can be voiced. Prior to that, at no point of time any grievances can be raised. Section 17 offers an adequate remedy. We shall advert to Section 17 a little later." "68. In any case, it is also held by the Supreme Court in Transcores case (supra), that if the measures undertaken by the secured creditor come in conflict with any other law the provisions of Section 13(4) override these provisions and that Section 35 gives an overriding effect to the NPA Act." "77. In our opinion, to secure its object the NPA Act has by necessary implication ruled out giving hearing either to the borrower or third parties till the application is filed under Section 17. As observed by the Supreme Court in Transcores case (supra) Section 6 of the NPA Act inter alia states that the bank or financial institution may, if it considers appropriate give a notice of acquisition of financial assets by any securitisation company or reconstruction company to the borrower and to any other concerned ; son but they may or may not give notice to the borrower regarding acquisition of financial assets the reason being that assets are transferable overnight. Section 13(2) contemplates a notice to the borrower calling upon him to discharge his liabilities. Section 13(3A) requires the secured creditor to communicate to the borrower reasons for not accepting his representation or objection and proviso thereto states that such communication shall not confer right on the borrower to make an application under Section 17 at that stage. Section 14 with which we are concerned here does not contemplate any notice to the borrower or a third party. It is only Section 17 which states that any person including borrower can make an application to DRT being aggrieved by any measure taken under Section 13(4). Section 14 with which we are concerned here does not contemplate any notice to the borrower or a third party. It is only Section 17 which states that any person including borrower can make an application to DRT being aggrieved by any measure taken under Section 13(4). Explanation to Section 17 clarifies that reasons communicated to a borrower at the stage of communication will not confer on the person including borrower any right to make an application to DRT under Section 17(1). Section 18 again confers right on any person aggrieved by an order of DRT under Section 17 to file an appeal before the Appellate Tribunal against the said order. Therefore, third party was in the mind of the legislature when it enacted the NPA Act. Wherever necessary reference is made to third party. Nothing prevented the legislature from specifically making a provision in Section 14 for notice to the borrower or third party. It purposely did not make provision for notice or hearing being given to the borrower or third party at the stage of Section 14. Looking to the scheme of the NPA Act, we are of the opinion that notice or hearing to the borrower or third party is excluded at the stage of Section 14 by necessary implication." (16) The bank says that there is no further scope of argument if the drift of an unreported Division Bench judgment of this Court rendered in MAT No. 2763 of 2007, CAN No. 9182 of 2007 (Deepak Gupta v. Union of India and Ors) delivered on December 20, 2007 is appreciated: "Mr. Roy, the learned Advocate appearing on behalf of the appellant tried to convince us that his client being a tenant under the debtor, the bank could not proceed against the asset of his client and his tenancy will continue even if the property is sold to an outsider. Mr. Pal Chowdhury, the learned Advocate appearing on behalf of the Bank, however, points out that even on the basis of the document relied upon by the appellant, his tenancy was created in the year 2006 after the mortgage was created by the landlord, and, therefore, in view of Section 65A of the Transfer of Property Act, the tenancy is subject to the mortgage in favour of the bank. After going through the aforesaid document, we find substance in the contention of Mr. Pal Chowdhury. After going through the aforesaid document, we find substance in the contention of Mr. Pal Chowdhury. We, therefore, find that all that the appellant can be permitted is to remove the goods within 72 hours from today. The respondent-bank is permitted to take possession of the tenanted portion of the appellant after expiry of 72 hours from today." (17) The purpose and scheme of the said Act have been conclusively commented upon by the Supreme Court in Mardia Chemicals, (2004)4 SCC 311 : (2004)2 WBLR (SC) 311 and Transcore. Up to the stage of Section 13(2) of the said Act, no grievance can be entertained as to the conduct of the bank. An objection may be raised by a notice following the receipt of a notice under Section 13(2) of the said Act which the bank or financial institution must consider under sub-section (3-A) of Section 13 which has been introduced into the said Act. Subsequent steps taken by a bank may be questioned by a person aggrieved in accordance with the provisions of the said Act. It does not imply that a writ Court is denuded of all authority to receive a petition under Article 226 of the Constitution if a petition is brought against an authority within the meaning of Article 12 of the Constitution seeking to enforce its rights as a secured creditor. An element of self-restraint, upon appreciating the availability of an efficacious alternative remedy, would prompt the writ Court to not receive a challenge unless the secured creditors conduct appeared to be without jurisdiction or patently perverse or in complete derogation of the principles of natural justice. (18) The adjudication that a person may invite as to the conduct of the secured creditor is primarily embodied in Section 17 of the Act. Section 14 is a recognised avenue for the ultimate enforcement of the secured creditors right and is, in a sense, the culmination of all that is specially carved out for a secured creditor entitled to invoke the provisions of the said Act. (19) That an application of the ultimate enforcement of the right may be made to a District Magistrate, as recognised in Section 14, leads to the inescapable conclusion that the function of the authority approached under Section 14 would be, if not ministerial, more administrative than judicial. (19) That an application of the ultimate enforcement of the right may be made to a District Magistrate, as recognised in Section 14, leads to the inescapable conclusion that the function of the authority approached under Section 14 would be, if not ministerial, more administrative than judicial. Section 14 of the Act is incidental to, and for the purpose of facilitating the exercise of the rights under, Section 13(4) of the Act. (20) It is necessary, in this context, to notice sub-sections (1) and (4) of Section 13, Section 14 and Section 17 of the Act: "13. Enforcement of security interest.-(1) Notwithstanding anything contained in Section 69 or Section 69A of the Transfer of Property Act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of the Court or Tribunal, by such creditor in accordance with the provisions of this Act. Enforcement of security interest.-(1) Notwithstanding anything contained in Section 69 or Section 69A of the Transfer of Property Act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of the Court or Tribunal, by such creditor in accordance with the provisions of this Act. (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; (b) take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset: Provided that the right to transfer by way of lease, assignment or sale shall be exercised only where the substantial part of the business of the borrower is held as security for the debt: Provided further that where the management of whole of the business or part of the business is severable, the secured creditor shall take over the management of such business of the borrower which is relatable to the security for the debt; (c) appoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor ; (d) require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt." "14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset.-(1) Where the possession of any secured assets is required to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured assets, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him- (a) take possession of such asset and documents relating thereto; and (b) forward such asset and documents to the secured creditor. (2) For the purpose of securing compliance with the provisions of sub-section (1), the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary. (3) No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any Court or before any authority." "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: Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower. Explanation.-For the removal of doubts it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the Debts Recovery Tribunal under sub-section (1) of Section 17. (2) The Debts Recovery Tribunal shall consider whether any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder. (3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, 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 this Act and the rules made thereunder, and require restoration of the management of the secured assets to the borrower or restoration of possession of the secured assets to the borrower, it may by order, declare the recourse to any one or more measures referred to in sub-section (4) of Section 13 taken by the secured assets as invalid and restore the possession of the secured assets to the borrower or restore the management of the secured assets to the borrower, as the case may be, and pass such order as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under sub-section (4) of Section 13. (4) If, the Debts Recovery Tribunal declares the recourse taken by a secured creditor under sub-section (4) of Section 13, is in accordance with the provisions of this Act and the rules made thereunder, then, notwithstanding anything contained in any other law for the time being in force, the secured creditor shall be entitled to take recourse to one or more of the measures specified under sub-section (4) of Section 13 to recover his secured debt. (5) Any application made under sub-section (1) shall be dealt with by the Debts Recovery Tribunal as expeditiously as possible and disposed of within sixty days from the date of such application : Provided that the Debts Recovery Tribunal may, from time to time, extend the said period.for reasons to be recorded in writing, so, however, that the total period of pendency of the application with the Debts Recovery Tribunal, shall not exceed four months from the date of making of such application made under subsection (1). (6) If the application is not disposed of by the Debts Recovery Tribunal within the period of four months as specified in sub-section (5), any party to the application may make an application, in such form as may be prescribed, to trje Appellate Tribunal for directing the Debts Recovery Tribunal for expeditious disposal of the application pending before the Debts Recovery Tribunal and the Appellate Tribunal may, on such application, make an order for expeditious disposal of the pending application by the Debts Recovery Tribunal. (7) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and the rules made there under," (21) Sections 69 and 69A of the Transfer of Property Act, 1882 confer certain rights on a mortgagee subject to the restrictions contained therein. The non-obstante clause found in Section 13(1) of the said Act of 2002 empowers a secured creditor covered by such Act to enforce any security interest created in its favour, without the intervention of any Court or Tribunal, in accordance with the provisions of the said Act. Section 13(4) sets out the measures that a secured creditor covered by the said Act may take recourse to for the purpose of recovering the secured debt. The Supreme Court has recognised in Transcore that the Act of 2002 provides for recovery of possession by non-adjudicatory process. The Act of 2002 is an exception to the general principle. The scheme of the Act of 2002 envisages possession being obtained and a subsequent adjudication as to whether the possession was obtained in accordance with the provisions of the said Act. The concept of obtaining possession by due process of law, thus, stands modified in the context of the right of a secured creditor covered by the Act of 2002 to enforce its security interest. (22) In the unreported judgment of Deepak Gupta, the mandamus appeal was carried to the Division Bench by a writ petitioner upon the writ petition not being entertained and the writ petitioner only being given liberty to approach the Debts Recovery Tribunal in terms of Section 17 of the Act of 2002. (22) In the unreported judgment of Deepak Gupta, the mandamus appeal was carried to the Division Bench by a writ petitioner upon the writ petition not being entertained and the writ petitioner only being given liberty to approach the Debts Recovery Tribunal in terms of Section 17 of the Act of 2002. The Division Bench noticed the writ petitioners contention that since the writ petitioner was a tenant under the borrower the secured creditor could not proceed against the tenanted property and repelled such argument. This Division Bench judgment was not noticed in the Samar Sarkar matter. It would appear that the observation in Samar Sarkar that the provisions of the Act of 2002 did not authorise a bank to recover possession of a mortgaged property from a tenant, is at variance with the Deepak Gupta judgment of the Division Bench. (23) In any event, the question in the Samar Sarkar case was as to whether a suit brought by a tenant apprehending dispossession by the secured creditor would be maintainable. Though the contemporary view, as would appear from the other authorities cited here, indicates that such a suit may not be maintainable, such question does not arise in the present case. The issue here is as to whether a tenant coming into possession of a property after the creation of a mortgage in respect thereof is entitled to any notice or a process of judicial adjudication before being dispossessed by the secured creditor. (24) Again, the issue is covered by the Division Bench judgment in Deepak Gupta. The writ petitioner here claims to have entered into the agreement at a time subsequent to the execution of the undertaking by trie borrower-landlord in favour of the bank. Section 65A of the Transfer of Property Act recognises a mortgagors right to lease out the mortgaged property, subject to the conditions therein. Sub-section (3) says that the mortgagor would have a right to create a lease of the mortgaged property only if and as far as a contrary intention is not expressed in the mortgage deed. Section 65-A of the Act of 1882 may be seen : "65-A. Mortgagors power to lease.- (1) Subject to the provisions of sub-section (2), a mortgagor, while lawfully in possession of the mortgaged property, shall have power to make leases thereof which shall be binding on the mortgagee. Section 65-A of the Act of 1882 may be seen : "65-A. Mortgagors power to lease.- (1) Subject to the provisions of sub-section (2), a mortgagor, while lawfully in possession of the mortgaged property, shall have power to make leases thereof which shall be binding on the mortgagee. (2) (a) Every such lease shall be such as would be made in the ordinary course of management of the property concerned, and in accordance with any local law, custom or-usage. (b) Every such lease shall reserve the best rent that can reasonably be obtained, and no premium shall be paid or promised and no rent shall be payable in advance. (c) No such lease shall contain a covenant for renewal. (d) Every such lease shall take effect from a date not later than six months from the date on which it is made. (e) In the case of a lease of buildings, whether leased with or without the land on which they stand, the duration of the lease shall in no case exceed three years, and the lease shall contain a covenant for payment of the rent and condition of re-entry on the rent not being paid within a time therein specified. (3) The provisions of sub-section (1) apply only if and as far as a contrary intention is not expressed in the mortgage-deed; and the provisions of sub-section (2) may be varied or extended by the mortgage-deed and, as so varied and extended, shall, as far as may be, operate in like manner and with all like incidents, effects and consequences, as if such variations or extensions were contained in that sub-section." (25) The agreement of September 17, 1999 between the borrower and the secured creditor records the express undertaking that the borrower would not, without the written consent of the bank first obtained, grant any lease of or create any further charge on the mortgaged property or any part thereof. It is not the writ petitioners case here that any previous consent in writing of the bank had been obtained by the borrower in creating the tenancy in favour of the petitioner. Even if the petitioner had urged that the bank had given previous consent, the petitioners only remedy was under Section 17 of the Act of 2002. It is not the writ petitioners case here that any previous consent in writing of the bank had been obtained by the borrower in creating the tenancy in favour of the petitioner. Even if the petitioner had urged that the bank had given previous consent, the petitioners only remedy was under Section 17 of the Act of 2002. (26) The principal ground urged by the petitioner in invoking the extraordinary jurisdiction is that the rules of natural justice had been violated by a Nationalised Bank. Not every feature of the rules of natural justice needs to be rigidly complied with in every instance, nor will the writ Court make such an exacting demand. What is imperative is that unless the rules of procedure permit a summary process, there has to be substantial compliance with the rules of fair play that any form of justice would demand. In every case where the Court has condoned a procedure at variance with the accepted norms when the rules of natural justice have been breached without any provision in that regard, the Court has been satisfied that even if the principles of natural justice were complied with the result would have been the same. The procedure recognised by the said Act permits possession before adjudication. Further, the petitioner had notice of the banks right in the year 2005 and it is the petitioners assertion that the petitioner refused to accept the notice that the bank had attempted to serve on him then. (27) There is no merit in the petitioners grievance. WP No. 247 of 2009 is dismissed with costs assessed at 300 GMs to be paid to the bank. The petitioner may still try the petitioners luck in other proceedings that may be available to the petitioner under the said Act of 2002.