JUDGMENT 1. Heard learned advocates appearing for the parties. Both these petitions invoke almost identical facts and question of law and, therefore, heard and decided accordingly. 2. Both these petitions are filed under Article 226 of the Constitution of India challenging action of respondent-Bank from taking possession of the secured assets namely Flat Nos.602 and 901 of Ekta Tower, Triputinagar, Nirmala Road, B/h. Cancer Hospital, Rajkot, on the ground that both the petitioners are tenant and have been residing with their families and summary eviction cannot be effected by the respondent-Bank in exercise of powers under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest, 2002 (in short “SARFAESI Act, 2002”). 3. So far as Special Civil Application No.13887 of 2008 is concerned by way of memorandum of entry, on 20.9.2004 by depositing title deeds, original borrower namely Nilesh M. Savaliya borrowed Rs.15 lacs from respondent-Bank on certain terms and conditions. The above property was purchased by said Shri Nilesh M.Savaliya-original borrower from one Shri Pravinbhai Bhanubhai Dave by way of sale deed dated 8.9.2004 with consideration of Rs.16.50 lacs and the above Flat No.602 of Ekta Tower admeasured 1600 sq.feet of super built up area. The sale deed is dated 8.9.2004 in which clause 2, it is stated that having accepted full consideration of Rs.16.50 lacs vacant/peaceful and dispute free possession is handed over by the seller to purchaser. 3.1. It is the case of the petitioner that the said Flat No.602 of Ekta Tower is given on rent for Rs. 2500/-by said Shri Nilesh M.Savaliya and receipts of payment are annexed with the petition. 4. So far as Special Civil Application No.14379 of 2008 is concerned, term loan amount of Rs.22 lacs was obtained by original borrower namely Nankubhai Hamirbhai Basiya from respondent-Bank by depositing title deeds as produced by way of memorandum of deposit of title deed dated 23rd August, 2004. The above flat No.901 of Ekta Tower was purchased by said Shri Nankubhai Hamirbhai Basiya from Pravinkumar B.Dave by way of sale deed dated 19.8.2004 with super built up area of. 2650 sq.ft. It is also stated that the petitioner of Special Civil Application NO.14379 of 2008 claims lawful tenancy on the ground that the above Flat No.901 given on rent to the petitioner and he used to pay Rs. 2500/- p.m. to power of attorney holder of original borrower. 5. 2650 sq.ft. It is also stated that the petitioner of Special Civil Application NO.14379 of 2008 claims lawful tenancy on the ground that the above Flat No.901 given on rent to the petitioner and he used to pay Rs. 2500/- p.m. to power of attorney holder of original borrower. 5. Thus, in both the above petitions the main ground of challenge is to a measure taken under SARFEASI Act, 2002 by respondent-Bank is contrary to Bombay Rents, Hotel and Lodging House Rates Control Act, 1949 in view of pre-existing tenancy of both the petitioners prior to deed of mortgage entered into between original borrowers namely Nilesh M.Savaliya on 20.9.2004 and Nankubhai Hamirbhai Basiya on 23rd August, 2004 for Flat Nos.602 and 901 of Ekta Tower respectively. In support of pre-existing tenancy three receipts dated 1.5.2004, 1.10.2008 and 1.4.2004 and for other month one telephone bill issued by BSNL in the name of Smt. Archanaben Kiranbhai Katira, is produced on record. 6. While issuing notice on 28.11.2008, learned Single Judge placed reliance on a copy of the ration card and ad-interim relief was granted directing respondent not to dispossess petitioner from the flat in question. So far as second petition is concerned i.e. SCA No.14379 of 2008, notice was made returnable by order dated 8.12.2008 with similar direction and it was ordered to be heard with SCA No.13887 of 2008. 6.1. Upon willingness shown by the learned advocate appearing for the petitioners to purchase the flats and to place on record proposal in writing, the Court adjourned the matter at the request of learned advocate for the Bank to take instructions so that auction may not be finalised. The above order was passed on 30th March, 2009 and the petitioners on the very date submitted a written offer to the respondent-Bank that they were interested to purchase above mentioned flats in question at the current market price with insertion “as per Jantri” by hand written words and also thereafter issued public notices through learned advocate in a local vernacular daily “Akila” that notice of public auction issued by the Bank is illegal and contrary to the order granted by the Court. 6.2. Subsequently, reliance was placed on the decision of this Court in the case of Dena Bank vs. Shri Sihor Nagarik Sahakari Bank Ltd., and Ors. 6.2. Subsequently, reliance was placed on the decision of this Court in the case of Dena Bank vs. Shri Sihor Nagarik Sahakari Bank Ltd., and Ors. [ 2008 (2) GLH 218 ] and it was submitted that when tenancy is in pre-existence, bank or financial institution have no right to proceed under SARFAESI, 2002 and, therefore, the matter came to be admitted and relief granted earlier continued till returnable date of rule i.e. 21.8.2009. 7. Accordingly, the matter is listed before this Court and finally heard today. 8. Mr. A.S.Asthavadi, learned advocate for the petitioners raised a legal ground based on the decision of this Court Dena Bank vs. Shri Sihor Nagarik Sahakari Bank Ltd., and Ors. (supra) and submitted that the respondent-Bank cannot evict the petitioners who are lawful tenant, when learned Single Judge of this Court has decided the issue in favour of the tenant after considering various provisions of SARFAESI Act, 2002 and rules made thereunder. It is submitted that there is nothing inconsistent in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1949 (in short “the Bombay Rent Act”) with provisions of SARFAESI Act, 2002 and, therefore, later Act cannot have overriding effect. In view of the documents submitted along with this petition by the petitioners about receipts of payment of rent to the landlords, it is established that the petitioners are tenant and measure taken by respondent-Bank is absolutely illegal and contrary to the provisions of Bombay Rent Act and the decision as above. 9. Alternatively, it is submitted that in view of Section 106 of Transfer of Property Act, 1882, even in absence of lease deed or contract, the petitioners cannot be evicted by the respondent without following due procedure of law and no such notice is issued for evicting the petitioners and, therefore, even if the petitioners want to challenge such action it is not possible at this stage. 10. Thirdly, reliance is placed on oral judgment dated 25.9.2008 of learned Single Judge whereby respondent-Bank was restricted from taking measure under SARFAESI Act, 2002 by directing the Bank not to dispossess pre-existent tenants and submissions are also made to the extent that petitioners being citizen of India are entitled to protection under Article 21 of the Constitution of India, cannot be evicted without following due procedure of law. 11. Mr. 11. Mr. Udyay Bhatt, learned advocate for the respondent-Bank at the outset submitted that considering the conduct of the petitioners about abuse of process of law and taking this Court exercising powers under Article 226 of the Constitution of India for a ride by the petitioners, these petitions are to be rejected. 11.1. Inter alia, it is submitted that reliance placed on pre-existing lawful tenancy by the petitioners has no basis at all in view of Gujarat Second Amendment brought by Gujarat Act 27 of 2001 as published under the Government Gazatte an amendment is carried out in sub-section (1) of Section 4 of the Act and for a period of 10 years from the date of commencement of the amending Act, the Act was not to apply in premises constructed on or after the commencement of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Gujarat Second Amendment) Act, 2001 and also to any existing premises which is self-occupied by the owner or vacant on or after commencement of the amending Act and is let after such commencement. Therefore, in view of the above amendment there was no lawful or legal tenancy before the mortgage in question and even certain receipts of payment of so called rent paid by the petitioners is not admitted by the Bank. So far as telephone bill produced on the record bears name of Smt. Archanaben Kiranbhai Kataria and not the name of petitioners. Thus, it is submitted that reliance placed on Dena Bank v. Shri Sihor Nagarik Sahakari Bank Ltd., and Ors. (supra) by the petitioners is misconceived . There was no occasion for the learned Single Judge to consider the above amending Act and it was decided in peculiar facts of that case where Exh.5 application filed in Regular Civil Suit No.91 of 2007 before the learned Civil Judge was challenged along with order dated 8th October, 2007 passed by the District Magistrate in exercise of powers under Section 14 of SARFAESI Act, 2002 and particularly, there was no dispute about pre-existing tenancy in that case. 11.2. Mr. 11.2. Mr. U.R.Bhatt, learned advocate, further submitted that even no documentary evidence is produced on record which can otherwise even prima facie establish any title, right, interest etc., in the subject property of the petitioners and without admitting anything and without prejudice to the rights and contentions of the Bank against such existing right, remedy is available in accordance with law. 11.3. Mr.Bhatt, learned advocate for the respondent-Bank heavily placed reliance on denial and refusal on the part of the deponent on certain incorrect factual assertions by the petitioners and submitted that attempts made by the petitioners are nothing but to thwart lawful proceedings of the recovery and having obtained the order from this Court on the assertion that petitioners would like to purchase flats in question, public advertisement was issued in the daily newspaper of Rajkot on 11.5.2009 with oblique motive so that proceedings of public auction remain stayed and bank may not get genuine bidders/buyers. Even offer was also conditional to purchase flats on current market price prevailing as per 'Jantri' and not as per real market valuation. Thus, it is clear that petitioners have not only misguided this Court but misled also. Considering the prices as approved by Government approved valuer and fixed as reserved price in a public notice of Rs.24,65,000/- for flat No.602 and Rs.41,98,000 for Flat No.901 of Ekta Tower is reasonable and based on correct assessment of market price prevailing in the city of Rajkot and if the petitioners have genuine consideration for purchasing the flats they can participate in public auction pursuant to the above notice and subject to their offering highest price amongst the bidders appropriate action can be taken by the bank. 11.4. Mr. Bhatt, learned advocate for the respondent further submitted that measure of respondent-Bank under SARFAESI Act, 2002 is absolute and since original borrowers have failed to pay outstanding dues inspite of demand notice under Section 13 (2) of SARFAESI Act, 2002 a measure undertaken by the Bank under 13(4) of the Act will always prevail and any aggrieved persons has remedy in accordance with law in view of provisions of Section 17 of the Act which empowers concerned Tribunal to look into breach of regulations, rules or provisions of the Act and also to restore the possession to the borrower in case if any measure of the secured creditor is contrary to such provisions. Even, further remedy by way of appeal before the DRAT under Section 18 is also provided by the statute in case if any adverse order is passed by DRT under Section 17 of the Act and thus, the petitioners do not deserve any relief by this Court in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India. 11.5. Mr. Bhatt, learned advocate has placed reliance on the decision of Division Bench of Madras High Court in the case of Sree Lakshmi Products v. State Bank of India [AIR 2007 MADRAS 148] and submitted that right to take possession of secured assets from borrower or third party is not truncated in any manner by provisions of Section 65 A of TP Act. It is submitted that this petition be rejected with exemplary costs. 12. In a rejoinder Mr.Asthavadi, learned advocate for the petitioners, submitted that even after amendment to the Section 4 of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, right of the petitioners continued as an occupier and without being process of law the petitioners cannot be evicted. 13. Considering submissions of learned advocates appearing for the parties in both the petitions, perusal of the record and pleadings, I am of the opinion that both these petitions filed under Article 226 of the Constitution of India invoking extraordinary jurisdiction of this Court deserve to be rejected, on the ground that there is no basis for premises canvassed by learned advocate for the petitioners that the petitioners are tenant. 13.1. In fact by way of insertion of sub-section (1)A by an amendment of Gujarat Act 27 of 2001, by which, Section 4 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 came to be amended reads as under: 4. (1) This Act shall not apply to any premises belonging to the Government or a local authority or apply as against the Government to any tenancy or other like relationship created by grant from the Government in respect of premises taken on lease or requisitioned by the Government; but it shall apply in respect of premises let to the Government or a local authority. [(1A) This Act shall not apply to- (a) any premises constructed on or after the commencement of the Bombay Rents, Hotel and Lodging House rates Control (Gujarat Second Amendment) Act, 2001 (here in after referred to as “the amending Act”); (b) any existing premises which is self-occupied by the owner or vacant on or after the commencement of the amending Act, and is let after such commencement; for a period of ten years from the date of the commencement of the amending Act. Explanation.-For the purposes of this section, “existing premises” means any premises which exists on the date of the commencement of the amending Act.] 14. Thus, in both the cases alleged tenancy is created after amendment of Section 4 of the Act of 1947. At the same time the very fact of the existence of tenancy is seriously disputed by the respondent-Bank and xerox copies of documents submitted by the petitioners in the form of annexures to the petitions do not reveal any tenancy or lease agreement. Even receipts towards payment of an amount of Rs.2500/-in each of their cases creates a doubt about actual payment of rent for such big apartment in the city of Rajkot. A careful perusal of sale deed in both petitions do not reveal existence, possession or occupation of apartment by any tenant or third party. On the contrary clause 2 of sale deed reads that “vacant, peaceful and free from any encumbrance possession is handed over to vendee by vendor”. Therefore, submissions by learned counsel for the petitioners about existence of tenancy before the mortgage cannot be believed. In view of amended Section 4 of Act of 1947, provisions of the Act is not to apply to any existing premises, which is self-occupied by the owner or vacant on or after the commencement of the amending Act and, therefore, claim based on pre-existing tenancy cannot be accepted. Even otherwise also the Bank has raised serious dispute with regard to even possession or occupancy of the petitioners of the apartment and contention if any can be raised before the competent forum under the Act as per law laid down by the Apex Court and other Courts. 14.1. Therefore, reliance placed on the decision of the Dena Bank v. Shri Sihor Nagarik Sahakari Bank Ltd., and Ors. 14.1. Therefore, reliance placed on the decision of the Dena Bank v. Shri Sihor Nagarik Sahakari Bank Ltd., and Ors. (supra) of this Court is not applicable at all in view of amended provisions of Section 4 of Bombay Rent Act, which never fell for consideration before the learned Judge and otherwise also in view of the facts considered by the learned Single Judge of this Court in the above case were of pre-existing tenancy which was not at all disputed. 15. In fact Division Bench of High Court of Madras on similar facts and in the circumstances, when tenancy was disputed by the bank, has held that remedy of such petitioner is to approach DRT by way of an application under Section 17 of SARFAESI, 2002 and Security Interest Rules, 2004 and also as per law laid down by the Apex Court in Mardia Chemicals Limited v. Union of India [ 2004 (4) SCC 311 ] and Transcore vs. Union of India [ AIR 2007 SC 712 ]. In para 9 of Sree Lakshmi Products v. State Bank of India (supra) of Madras High Court held as under: “9. On a plain reading of the observations made in Transcore case it is clear that the bank/FI is entitled to take actual possession of the secured assets from the borrower or from any other person in terms and Section 13(4) of the SARFAESI Act. Any transfer of secured assets after taking possession of the same by the bank/FI shall vest in the transferee all rights in relation to the secured assets as if the transfer has been made by the owner of such secured assets. Any party aggrieved by such dispossession will have to take recourse to approaching the DRT under Section 17 (4) of the SARFAESI Act. If the party is dispossessed, not in accordance with the provisions of the Act, then the DRT is entitled to put the clock back by restoring the status quo ante. By virtue of Section 17 (4) read with Section 35 of the SARFAESI Act, if in a given case the measures undertaken by the secured creditor under Section 13 (4) come in conflict with the provisions of any State law, then notwithstanding to such conflict, the provisions of Section 13 (4) shall override the local law. By virtue of Section 17 (4) read with Section 35 of the SARFAESI Act, if in a given case the measures undertaken by the secured creditor under Section 13 (4) come in conflict with the provisions of any State law, then notwithstanding to such conflict, the provisions of Section 13 (4) shall override the local law. Section 13 (13) of the SARFAESI Act operates as an attachment/injunction restraining the borrower from disposing of the secured assets and therefore, any tenancy created after such notice would be null and void. Any tenancy created by the mortgagor after the mortgage in contravention of Section 65-A would not be binding on the bank/FI, and in any event such tenancy rights shall stand determined once action under Section 13 (4) has been taken by the bank/FI. When the petitioner is claiming a tenancy prior to the creation of mortgage and such tenancy is disputed by the bank the remedy of the petitioner is to approach DRT by way of an application under Section 17 of the SARFAESI Act to establish its rights.” 15.1. Thus, a view taken by Division Bench of Madras High Court also deal with a situation of a tenancy prior to the creation of mortgage and if such tenancy is disputed by the Bank the remedy to the petitioners is to approach DRT by way of an application under Section 17 of SARFAESI Act, 2002 to establish their right. Not only that but DRT has all powers to put clock back and to pass an order restoring possession in case if the party is dispossessed not in accordance with the provisions of the Act. Therefore, the question of possession or occupation of the premises will have to be gone into in the light of above observation and by virtue of Section 17 (4) read with Section 35 of SARFAESI Act, 2002, the Act being Central Act and later in time then State law will have overriding effect unless first charge is created by the State statute. But in the facts of this case there is no applicability of local Act namely Rent Act and no protection available to the petitioners and, therefore, also impugned action of respondent-Bank cannot be said to be illegal in any manner. 15.2. But in the facts of this case there is no applicability of local Act namely Rent Act and no protection available to the petitioners and, therefore, also impugned action of respondent-Bank cannot be said to be illegal in any manner. 15.2. Even if facts of present case is examined as produced by the petitioners is a few receipts of payment of an amount and a certificate issued by President, Ekta Tower Association about occupancy of the petitioners of the apartment and payment of regular maintenance amount by itself will not create any right in favour of the petitioners. Besides, the protection afforded by the Bombay Rent Act even before amending Section 4 of the Act was to a tenant from the landlord of the premises against illegal recovery of possession and without taking recourse to any of the grounds available to the landlord under Bombay Rent Act. The above protection is no more available after amending Section 4 by the amending Act of the Gujarat Act No.27 of 2001 and, therefore, petitioners cannot claim protection under Bombay Rent Act even against the landlord if any. That, secured creditor can enforce his right under the SARFAESI, 2002 against the principal borrower or guarantor who had mortgaged the property in question by executing valid memorandum of mortgage in favour of the mortgagee. Even, unregistered lease in contravention of Section 65 A of the transfer of property Act cannot be pressed into service for any protection by an occupier like petitioners of the mortgaged property while enforcing rights under SARFAESI, 2002. Thus, petitioners have failed to establish any case against enforcement of right by secured creditor the respondent-Bank herein under SARFAESI Act, 2002 and, therefore, both petitions deserves to be rejected. 16. However, even after obtaining interim relief from this Court, the conduct of petitioners do not inspire any bona fide on their part to purchase properties in question as rightly pointed out by learned advocate appearing for respondent-Bank that petitioners have published an advertisement to mislead genuine bidders/buyers so as to dissuade them from purchasing properties and no genuine efforts were made by the petitioners to purchase properties on real market valuation. Therefore, equity is not in favour of the petitioners and considering overall facts and law as discussed herein above, I am of the opinion that petitions fail and accordingly rejected. 17. Therefore, equity is not in favour of the petitioners and considering overall facts and law as discussed herein above, I am of the opinion that petitions fail and accordingly rejected. 17. Though petitioners have indulged into delaying process of lawful recovery initiated by respondent-Bank and subsequent conduct after filing the petitions, which deserves to be condemned, for which the respondent-Bank had to incur expenses, I deem it just and proper to impose cost of Rs.5,000/-each to be paid by the petitioners to respondent-Bank within the period of four weeks from today. 18. Rule is discharged in each petition. Interim relief also stands vacated. Order of costs as above.