- JUDGMENT : DHIRAJ SINGH THAKUR, CJ. 1. The petitioner claims that he was in possession of the property in question, by virtue of a registered Rent Deed, dated 22.02.2016, wherein he Was conducting his business. It is stated that after tenancy rigtlts were created in favour of the petitioner, by the owner of the property, a loan was obtained by the owner, who subsequently mortgaged the property in question with the financial institution - respondent No.2 herein. 2. The petitioner claims that while he was in possession, the secured creditor approached the Chief Judicial Magistrate-Cum-Principal Civil Judge, (Senior Division), Chittoor, in terms of the provisions of section 14 of the SARFAESI Act, 2002 for Obtaining Physical possession of the Property in question. It is stated that the learned chief Judicial Magjstrate ordered the appointment of an Advocate commissioner authorising him to take physical possession of the property in question. 3. The case of the petitioner is that respondent No.2 did not in the application reflect that the petitioner was in possession and running business from the premises in question, based upon a validly created tenancy in favour of the petitioner, and hiding that fact proceeded to obtain an order, resulting in the appointment of an Advocate commissioner, who took possession, based upon Which the petitioner came to be dispossessed. 4. This Court, by virtue of its order dated 08.05.2025, observed that respondent No.2 had not reflected in the application that there was a tenant operating from the premises in question and considering the fact that the tenancy was created on account of a registered Rent Agreement, the Advocate commissioner was directed to remove the locks which have been fixed on the outer door of the premises, with further direction to handover the Possession back to the petitioner. 5. While issuing the said directions this court had relied upon the judgment of the Apex Court, rendered in the case of Harshad Govardhan sondagar vs. International Assets Reconstruction company Limited, 20146 SCC 1 which reads as under: 'We have already held that section 13 of the SARFAESI Act does not provide that the lease in respect of a secured asset will getdetermined when the secured creditor decides to take the measures in the said section. Hence, possession of the secured asset from a lessee in lawful possession under a valid lease is not required to be taken under the provisions of the SARFAESI Act and the Chief Metropolitan Magistrate or the District Magistratet therefore, does not have any power under Section 14 of the SARFAESI Act to take possession of the secured asset from such a lessee and hand over the same to the secured creditor. When, therefore, a secured creditor moves the Chief Metropolitan Magistrate or the District Magistrate for assistance to take possession of the secured asset, he must state in the affidavit acccompanying the application that the secured asset is not in possession of a lessee under the valid lease made prior to creation of the mortgage by the borrower or made in accordance with Section 65A of the Transfer of Property Act prior to receipt of a notice under sub-section (2) of Section 13 of the SARFAESI Act by the borrower. . . " - 6. Pursuant to the directions so issued, the possession was handed over back to the petitioner. 7. ln the case of Sondagar, itwas held that when attempts are made by the secured creditor to dispossess the lessee, he has two options. One that he may either surrender the possession, or he may resist the secured creditor to take possession, by producing before the authorised officer, proof that he was inducted as a lessee prior to the creation of the mortgage or that he was a lessee under the mortgagor in accordance with the provisions of Section 65A of the Transfer of Property Act,1882, (for short, "the TP Act") and that the lease had not been determined in accordance with Section 111 of the TP Act. lt was also held that if the lessee resists the appointment of Secured creditor to take possession, the authorised officer cannot evict the lessee by force, but has to file an application before the C.M.M. or the District Magistrate under section 14 of SARFAESI Act and cite in the affidavit accompanying the application, the name and address of the Petitioner Claiming to be the lessee. - It further held that when such an application is filed, the C.M.M. or the District Magistrate shall have to give notice and an opportunity of hearing to the person claiming to be the lessee as well as to the secured creditor and then take possession. - It further held that when such an application is filed, the C.M.M. or the District Magistrate shall have to give notice and an opportunity of hearing to the person claiming to be the lessee as well as to the secured creditor and then take possession. The decision of the C.M.M., according to the judgment (supra), could then be challenged before the High Court under Article 226/227 of the Constitution by an aggrieved party and that the High Court could then examine the decision of the C.M.M. While considering the issue whether a lessee could avail the remedy by way of an appeal under Section 17, when a secured creditor attempted to takeover possession of the secured asset, which is in possession of the lessee, the Apex Court held that the Debts Recovery Tribunal (for short, [tthe D.R.T.") would not have power to restore possession of the secured asset to the lessee and that there was no remedy available under Section 17 of the SARFAESI Act to the lessee to protect the lawful possession under the valid lease. What was stated by the Apex Court in the aforementioned context is as under: "32.When we read sub-section (1) of Section 17 of the SARFAESI Act, we find that under the said sub-section 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 the chapter, may apply to the Debts Recovery Tribunal having jurisdiction in the matter within 45 days from the date on which such measures had been taken w.e agree with Mr Vikas Singh that the words "any person" are wide enough to include a lessee also. It is also possible to take a view that within 45 days from the date on which a possession notice is delivered or affixed or published under sub-rules (1) and (2) of Rule 8 of the Security Interest (Enforcement) Rules, 2002, a lessee may file an application before the Debts Recovery Tribunal having jurisdiction in the matter for restoration of possession in case he is dispossessed of the secured asset. But when we read sub-section (3) of section 17 of the SAFFAESI Act, we find that the Debts Recovery Tribunal has powers to restore possession of the secured asset to the borrower only and not to any person such as a lessee. But when we read sub-section (3) of section 17 of the SAFFAESI Act, we find that the Debts Recovery Tribunal has powers to restore possession of the secured asset to the borrower only and not to any person such as a lessee. Hence, even if the Debts Recovery Tribunal 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 the Act, it cannot-restore possession of the secured asset to the lessee. Where, therefore, the Debts Recovery Tribunal considers the application of the lessee and comes to the conclusion that the lease in favour of the lessee was made prior to the creation of mortgage or the lease though made after the creation of mortgage is in accordance with the requirements of Section 65-A of the Transfer of Property Act and the lease was valid and binding on the mortgagee ahd the lease is yet to be determined, the Debts Recovery Tribunal will not have the power to restore possession of the secured asset to the lessee. In our considered opinion, therefore, there is no remedy available under section 17 of the SARFAESI Act to the lessee to protect his lawful possession under a valid lease." - 8. The aforementioned exposition of law, however, Was based upon the un-amended provisions of section 17 of the SARFAESI Act, which subsequently came to, be amended in the year 2016, which now enables any person aggrieved by any of the measures referred in sub-section (4) of section 13 to approach the D.R.T. having jurisdiction in the matter. 9. Section 17(4-A) empowers the D.R.T. to decide based upon the facts and evidence produced by parties, regarding the existence and validity of a lease or tenancy, For facility of reference, Section 17(4-A) of the SARFAESI Act is reproduced hereunder: "17. 9. Section 17(4-A) empowers the D.R.T. to decide based upon the facts and evidence produced by parties, regarding the existence and validity of a lease or tenancy, For facility of reference, Section 17(4-A) of the SARFAESI Act is reproduced hereunder: "17. (4A) Where- (i) any person, in an application under sub-section (1), claims any tenancy or leasehold rights upon the secured asset, the Debt Recovery Tribunal, after examining the facts of the Case and evidence produced by the parties in relation to such claims shall, for the purposes of enforcement of security interest, have the jurisdiction to examine whether lease or tenancy,- (a) has expired or stood determined; or (b) is contrary to section 65A of the Transfer of Property Act,1882 (4 of 1882); or (c) is contrary to terms of mortgage; Or (d) is Created after the lssuance of notice of default and demand by the Bank under subsection (2) of section 13 of the Act, and (ii) the Debt Recovery Tribunal is satisfied that tenancy right or leasehold rights Claimed secured asset falls under the sub-clause (a) or sub-clause (b) or sub-clause (c) or sub-clause (d) of clause (i), then notwithstanding anything to the contrary contained in any other law for the time being in force, the Debt Recovery Tnbunal may pass such order as lot deems fit in accordance with the provisons of this Act." 10. While the interim order whlch was granted by this court on 08.05.2025, was based upon the judgment rendered in the case of Sondagar, which was cited before us, and based upon which the possession was directed to be restored in favour of the petitioner, yet, the possession having been restored, the petitioner is now required to be relegated to avail the remedy of appeal under Section 17 of the Act. 11. Be that as itt may, we disposed of this writ petition, with liberty to the petitioner to approach D.R.T. within a period of two weeks from today. The stats quo with regard to the petitioner's possession shall be maintained till such time as the interlocutory application filed along with the S.A. is considered and appropriate orders passed. No order as to costs. pending miscellaneous applications, if any, in this Petition, Shall stand closed.