ORDER : Though matter is listed for preliminary hearing, by the consent of learned advocates it is taken up for final disposal, since the only issue involved in this petition relates to whether the petitioners should be permitted to prosecute their claim before this Court by invoking the extraordinary jurisdiction or petitioners should be relegated to the Debts Recovery Tribunal to espouse their cause in terms of Section 17(4A) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the Act’). 2. Petitioners 1 to 3 and petitioner No.4 are claiming to be in possession of portions of shops at STK Plaza situated at Property No.1/1, Hospital Road, Avenue Road Cross, Bengaluru, having been inducted by respondent No.2 in the year 1989 and 2012 respectively. Hence, they are seeking for a direction to the respondent – Bank not to evict the petitioners without following due process of law. 3. Respondent No.1 being notified, have appeared and filed their statement of objections and denied the averments made in the petition except to the extent expressly admitted thereunder. It is the specific case of 1st respondent – Bank that property in question, namely, shops in STK Plaza in which petitioners 1 to 4 are in occupation apart from others have been mortgaged by the titleholder debtor to secure the debt borrowed by him by creating an equitable mortgage by depositing title deeds of the said property and as such, 1st respondent being a secured creditor is exercising the powers under the Act has initiated proceedings under Section 14 of the Act before the Jurisdictional Magistrate by filing C.Mis. No.7984/2013 and pursuant to the order passed on 05.10.2013 allowing the petition, which was preceded by notices being issued under Sections 13(2) and 13(4) of the Act to the debtor, possession has been taken over and the remedy available to petitioners is only to approach the jurisdictional Debts Recovery Tribunal under Section 17(4A) of the Act and petitioners cannot invoke the extraordinary jurisdiction of this Court. Hence, they have prayed for dismissal of the writ petition. 4. Having heard the learned advocates appearing for parties and on perusal of the records, it discloses that petitioners claim to have been inducted into certain portions of secured asset which is owned by 2nd respondent herein by executing lease deeds in their favour. Hence, they have prayed for dismissal of the writ petition. 4. Having heard the learned advocates appearing for parties and on perusal of the records, it discloses that petitioners claim to have been inducted into certain portions of secured asset which is owned by 2nd respondent herein by executing lease deeds in their favour. Petitioners 1 to 3 claim to have been inducted as a tenant in the year 1989, whereas petitioner No.4 claims to have been inducted in the year 2012. Undisputedly, the mortgage has been created on 04.10.2011 i.e., much prior to tenancy created in favour of petitioners. It is held by the Hon’ble Apex Court in catena of judgments that it is only the tenants who are inducted prior to mortgage would be protected under the relevant tenancy laws as well as the provisions of Transfer of Property Act. For this proposition, the judgment of the Hon’ble Apex Court in the case of VISHAL N. KALSARIA VS. BANK OF INDIA AND OTHERS reported in (2016) 3 SCC 762 can be looked up and also that of SANJIVKUMAR SURAJPRAKASH AGGARWAL VS. STATE BANK OF INDIA AND OTHERS reported in (2016) 14 SCC 532. As to whether person claiming in occupation of the premises is a tenant who has been inducted prior to the mortgage or the secured creditor was aware of the tenancy, would be a disputed question of fact, which requires to be examined on the basis of evidence both oral and documentary that may be placed by the party so asserting and denial by other side. As such, this Court in writ jurisdiction would not be in a position to examine such a disputed question of fact. In that view of the matter it would be appropriate to relegate the petitioners herein who are claiming to be tenants of the premises to the Debts Recovery Tribunal by filing an application under Section 17(4A) of the Act to redress their grievance. To the said extent, learned counsel appearing for the respondent – Bank, Sri Nagaraj Damodar, is justified in raising such a contention. 5. In the instant case, the possession of shops in occupation of petitioners were taken over by the secured creditor, namely 1st respondent – Bank by virtue of order dated 05.10.2013 passed by the jurisdictional magistrate under Section 14 of the Act. 5. In the instant case, the possession of shops in occupation of petitioners were taken over by the secured creditor, namely 1st respondent – Bank by virtue of order dated 05.10.2013 passed by the jurisdictional magistrate under Section 14 of the Act. Grievance of the petitioners in this regard is that the Bank was fully aware of petitioners being in possession of the shops in question and yet choose not issue notice to them before initiating proceedings under Section 14 of the Act. 6. The Hon’ble Supreme Court in the judgment referred to supra has clearly held where the secured creditor being aware of the fact of tenancy having been created would be required to issue notice to such tenants before initiating proceedings and also array them as parties to the proceedings under Section 14 of the Act. In the instant case, notice issued to petitioners by 1st respondent dated 31.01.2017 vide Annexures – “R8A” to “R8D” would clearly disclose that 1st respondent - Bank was fully aware of petitioners being in occupation of the different portions of the secured asset. Yet, without arraying them as parties, has proceeded to obtain possession of the premises. As to whether it would amount to violation of principles of natural justice was also examined by Coordinate Bench of this Court in the matter of REMO SOFTWARE PRIVATE LIMITED AND OTHERS –vs- HDB FINANCIAL SERVICES LIMITED – IN W.P.Nos. 35597-601/2017 & 35602-604/2017 disposed of on 08.08.2017 and it has been held that Section 14 of the Act does not exclude the principles of natural justice and it has been opined by the Coordinate Bench as under: “19. Thus, as stated above, Section 14 does not exclude the principles of natural justice and therefore, Magistrate should hold an enquiry in the matter. The learned Magistrate cannot act simply on the basis of one sided Affidavit filed by the Bank/Financial Institution under Proviso to Section 14(1) of the Act. The borrowers have a right to controvert such Affidavit and the tenants in the premises also have a right to be heard in the matter. Secondly, the tenanted premises cannot be directly vacated by such orders under Section 14 of the Act. It is for DRT to decide about the bona fide of the tenancy or otherwise under Section 17(4A) of the Act. Secondly, the tenanted premises cannot be directly vacated by such orders under Section 14 of the Act. It is for DRT to decide about the bona fide of the tenancy or otherwise under Section 17(4A) of the Act. If tenancy is not bona fide and just “created” as a sham defence, such occupants can be evicted by an order under Section 17(4) of the Act by the DRT, but if the tenancy is long pre-existing before the issuance of notice under Section 13(2) of the Act and is found to be bona fide, such tenants and lessees cannot be evicted, without adopting the due process of law for eviction under State Rent Control Law, as held by Hon’ble Supreme Court in Vishal N. Kulsaria’s case (supra). It would for the auction purchaser to adopt such due process of law, once he steps in the shoes of landlord/borrower proceeded against under SARFAESI Act 2002. However, the lessees/tenants cannot object to the initiation and proceedings undertaken and continued against the landlord or the defaulting borrower. The attornment of tenancy in favour of auction purchaser under SARFAESI Act would be automatic by legal fiction and DRT can direct payment of Rentals to the account of Bank directly.” 7. In the light of the aforesaid discussion and the fact that the bank has taken possession of the shops from the petitioners and has kept it under lock and key and the issue regarding as to whether petitioners 1 to 3 are bonafide tenants and thereby the recourse taken by the Secured creditor as per Section 13(4) being in consonance of the said provisions, is an issue which will have to be examined by the Tribunal under Section 17(4A) of the Act, as noticed hereinabove. Petitioners have been granted liberty to redress their grievance by filing an application under Section 17(4A) of the Act before the Debts Recovery Tribunal. Petitioners have been granted liberty to redress their grievance by filing an application under Section 17(4A) of the Act before the Debts Recovery Tribunal. However, the possession of the premises having been taken by Bank and ultimately if it is found that the tenancy created by the erstwhile owner of the premises who had undisputedly sold the same to one Sri Neelakantha G. Sanikoppa and he in turn had sold to the present debtor, then, the valuable right of the petitioners would be lost and as such the equities will have to be balanced between the right of the secured creditor as that of tenants who are claiming to have been inducted into the premises in accordance with law and who had continued in occupation of the said premises. 8. In the instant case, all the petitioners have filed the affidavits of undertaking before the Court stating thereunder that they would approach the Jurisdictional Tribunal by filing an appropriate application and have also given further undertaking that in the event of they not being successful before the Tribunal, they would hand over vacant possession of the shop premises in question to 1st respondent – Bank. Hence, this Court is of the considered view that it would be appropriate to accept the said undertakings and direct the 1st respondent to deliver possession of the shops insofar as petitioners 1 to 3 since prima facie records would disclose their tenancy was created in the year 1989 which was much prior to the creation of equitable mortgage i.e., on 04.10.2011. Insofar as 4th petitioner is concerned, it is made clear that respondent – Bank shall not induct or change the nature of the property till the application filed by the 4th petitioner is disposed of by the Debts Recovery Tribunal. 9. In the light of aforesaid discussion, this Court proceeds to pass the following: ORDER : (1) Writ petitions stand disposed of by placing the affidavit of undertaking filed by the petitioners on record and reserving liberty to the petitioners to approach the Debt Recovery Tribunal by filing an application under Section 17(4A) of the Act for determination of their rights and redressal of their grievance. (2) 1st respondent – Bank shall deliver vacant possession of the shops seized from petitioners1 to 3 under separate mahazars to them expeditiously, at any rate within three days from today. (2) 1st respondent – Bank shall deliver vacant possession of the shops seized from petitioners1 to 3 under separate mahazars to them expeditiously, at any rate within three days from today. (3) 1st respondent – Bank shall retain possession of the shop premises taken from 4th petitioner, who claims to be tenant under second respondent till the disposal of the application that may be filed by him under Section 17(4A) of the Act. (4) In the event of 4th petitioner making a request to remove the goods which is inside the shop premises, 1st respondent – Bank under a separate mahazar shall hand over the said goods to the 4th petitioner. (5) Pendency of the application before the Debt Recovery Tribunal that may be filed by petitioners would not come in the way of 1st respondent – Bank proceeding to sell the secured asset in the manner known to law without prejudice to its rights. (6) In the event of petitioners filing an application before the Debt Recovery Tribunal on or before 14.08.2018, the Tribunal shall dispose of the said application/s keeping in mind Section 17 of the Act and in the event of such an application not being filed within the said date, petitioners shall hand over possession of the premises to first respondent – Bank and on their failure to do so, Bank would be at liberty to take possession of shops pursuant to order dated 05.10.2013 passed by Magistrate in C.Misc.No.7984/2013. (7) In the event of petitioners1 to 3 not handing over possession of shops to 1st respondent – Bank in the event of application being rejected by the Tribunal as undertaken by them, 1st respondent – Bank would be at liberty to enforce the order passed by the jurisdictional Magistrate in C.Misc.7984/2013 dated 05.10.2013 and take possession of the portion/s of the shops in occupation of the petitioners1 to 3. Ordered accordingly.