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Rajasthan High Court · body

2018 DIGILAW 1780 (RAJ)

Maqbool v. S. L. Sharma, Chief Branch Manager

2018-08-24

NIRMALJIT KAUR

body2018
JUDGMENT NIRMALJIT KAUR, J. 1. The present writ petition has been filed against the order dated 30.1.2015 (Annex.5) passed by learned ADJ, Churu in CAO No.10/14 (24/12) whereby the order dated 7.9.2012 (Annex.3) passed by learned Civil Judge (JD) Churu in Civil Misc. case No.49/12 dismissing the applications under Order 21 Rule 32 and Section 151 CPC was affirmed. The aforesaid application were filed for restoration of possession in respect of the property, possession thereof was taken over by State Bank of Bikaner & Jaipur in exercise of its powers under the provisions of SARFAESI Act. 2. The mortgagor i.e. Hakim Ali Khan S/o Mohd. Ishaq Khan, resident of Churu created security interest in respect of his immovable property situated at Churu. He failed to repay the dues of secured creditor i.e. State Bank of Bikaner & Jaipur, therefore, the loan a/c was classified as NPA and action under the provisions of SARFAESI Act was initiated by the Bank. The present petitioner stating himself to be the tenant filed a suit for permanent injunction on the basis of alleged rent note dated 1.3.2007 against Hakim ali as the respondent. However, a consent decree was passed vide judgment dated 7.1.2012. The respondents are the officers of the State Bank of Bikaner and Jaipur and were posted at Churu at the relevant point of time. They were not the party to the proceedings before the civil Court. They took action against the secured asset being the secured creditors and in pursuance to an application filed by them under Section 14 of the Act before the District Collector, Churu, the possession of the mortgaged property was taken by the secured creditor i.e. SBBJ after following the mandatory provisions of the Act of 2002. Being aggrieved, the petitioner preferred an application before the Civil Judge(JD) under Order 21 Rule 32 CPC praying for restoration of the possession of the petitioner and to also take action against the bank officers. The said application was dismissed vide order dated 7.9.2012. However, the appeal preferred by the petitioner against the same too was rejected. 3. While praying for setting aside the impugned orders, learned counsel for the petitioner submitted that the bank authorities had no power under the SARFAESI Act to dispossess the petitioner from the house. The said application was dismissed vide order dated 7.9.2012. However, the appeal preferred by the petitioner against the same too was rejected. 3. While praying for setting aside the impugned orders, learned counsel for the petitioner submitted that the bank authorities had no power under the SARFAESI Act to dispossess the petitioner from the house. The bank authorities had also no right to dispossess the petitioner from the house as he had the lawful decree passed by the competent court of law in his favour. 4. Therefore, his application under Order 21 Rule 32 CPC could not have been rejected. Reliance was placed on the judgments rendered in the case of Vishal N. Kalsaira Vs. Bank of India & Ors., (2016) 1 CivCC 696 (S.C.) to contend that the provisions of the SARFAESI Act, 2002 cannot over right the provisions of the Rent Act, 2001 and therefore no proceedings can be undertaken against the tenant except under the Rent Control Act. A tenant cannot be evicted without adopting due process of law which is only under the Rent Control Act. 5. Learned counsel for the respondents however submitted that the consent decree was obtained by the petitioner and the suit was filed with the connivance of landlord who had mortgaged the property to the bank. This was done with ulterior motive to defeat/delay the recovery proceedings and the rent note dated 1.3.2007 was a sham document and the petitioner was never in occupation of the mortgaged property in any manner. The petitioner has purposely made the officers of the bank as party who were doing their duty in their official capacity. Section 32 of the SARFAESI Act, 2002 protects an officer or Manager who has taken action in good faith from any prosecution or other legal proceedings. In the present case, the officers have been made party by name instead of the bank and therefore the writ petition deserves to be dismissed even on this count. 6. Heard. 7. The judgment rendered in the case of Vishal N. Kalsaria was delivered on 20.01.2016, whereas, sub-section (4-A) was inserted in Section 17 of the SARFAESI Act with effect from 01.09.2016. In fact, the object behind the amendment was the observations made by the Apex Court in the case of Harshad Govardhan Sondagar Vs. International Assets Reconstruction Co. Ltd. & ors. The judgment rendered in the case of Vishal N. Kalsaria was delivered on 20.01.2016, whereas, sub-section (4-A) was inserted in Section 17 of the SARFAESI Act with effect from 01.09.2016. In fact, the object behind the amendment was the observations made by the Apex Court in the case of Harshad Govardhan Sondagar Vs. International Assets Reconstruction Co. Ltd. & ors. (Criminal Appeal No. 736/2014 [arising from Petition(s) for Special Leave to Appeal (Crl) No(s) 1666/2012]) decided on 03.04.2014 and the observations made in the case of Vishal N. Kalsaria itself. The judgment rendered in the case of Vishal N. Kalsaria gave ample opportunity to even some unscrupulous borrowers to put forward a tenant and frustrate the rights of the secured creditor to recover their dues from the mortgaged property. It was in these circumstances that sub-section (4-A) was incorporated and sub-section (3) was substituted in Section 17 of the SARFAESI Act to plug the mischief. 8. This Court in the case of I.C.I.C.I Bank Limited Vs. Krishna Kumar & Ors. (S.B. Civil Writ Petition No.16965/2017) decided on 27.4.2018 while taking into consideration the judgment rendered in the case of Vishal N. Kalsaria went on to hold that - "The argument of the learned counsel for the respondent No. 1, the alleged tenant that either the secured creditor should itself purchase the property and step into the shoes of a landlord or auction the property and leave it to the auction purchaser to proceed under the Rent Act of 2001 in view of the judgment in the case of Vishal N. Kalsaria is no more available in view of the amended provisions of the SARFAESI Act which have been incorporated to safeguard the interest of both i.e. the genuine tenant as well as safeguard the interest of secured creditors against the unscrupulous tenants." 9. There is ample opportunity and right is available to a tenant or lessee on being aggrieved with the order of dispossession to invoke the provisions provided under the SARFAESI Act and also to seek restoration of the possession of the secured assets to the borrower or such aggrieved person in accordance with Section 17, wherein for sub-section (3), the following sub-section was substituted in the Principal Act giving ample opportunity to a tenant/lessee :- "(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 there under, and require restoration of the management or restoration of possession, of the secured assets to the borrower or other aggrieved person, it may, by order a. declare the recourse to any one or more measures referred to in sub-section (4) of section 13 taken by the secured creditor as invalid; and b. restore the possession of secured assets or management of secured assets to the borrower or such other aggrieved person, who has made an application under sub-section (1), as the case may be; and c. pass such other direction 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;" 10. Now, in view of the amended Act and incorporation of sub-section (4-A) in Section 17 of the SARFAESI Act as well as sub-section (3) of Section 17 of the SARFAESI Act sufficiently empowered the tenant to challenge the proceedings qua his dispossession as a lessee or a tenant, in case, action is being initiated against him for dispossession under the SARFAESI Act. 11. It may very well be argued that the amendment is subsequent to the cause of action in the present case and therefore, the said amendment does not apply and therefore in view of the judgment rendered in Vishal N. Kalsaira, the respondents should have proceeded against the petitioner under the Rent Control Act for his eviction. However, the said argument too does not come to the rescue of the petitioner in the present circumstances. However, the said argument too does not come to the rescue of the petitioner in the present circumstances. The stand of the respondents herein is that the rent note dated 1.3.2007 is a sham document. The suit was filed by the petitioner in connivance with Shri Hakim Ali and the respondents were not party in the said suit and in fact the petitioner was not even in occupation of the mortgaged property in any manner. If it is so and if that is the stand of the respondent, there was no occasion for them to have filed any eviction petition under the Rent Control Act. If at all, in case the petitioner aggrieved, he could have invoked the remedy available to him under the Rent Control Act but he himself chose to avail the remedy under the Securitization Act and preferred Securitization Application (S.A.) No.91/2012 before learned DRT, Jaipur seeking restoration of possession in the premises and also prayed for interim relief. Learned DRT has dismissed the same by an order dated 9.11.2012. Simultaneously, he had also filed a civil suit No.60/12 wherein the trial court refused to grant any relief for restoration of possession. This fact was concealed by him before the DRT. The order dated 9.11.2012 was never challenged by way of filing statutory appeal available to the petitioner and has since attained finality. 12. As stated above, the petitioner has admittedly not challenged the order dated 9.11.2012 till date and instead of challenging the same in accordance with law, he chose to file the application under Order 21 Rule 32 CPC which in any case is not maintainable at the behest of the petitioner as the provisions of Order 21 Rule 32 are applicable and can be invoked qua the party against whom a decree for injunction had been passed. No decree was passed either against the respondents who are the officers of the bank or the bank. 13. In these circumstances, no fault can be found with orders passed by the courts below in dismissing the application of the petitioner as well as the appeal. 14. The writ petition is accordingly dismissed.