A.P.H.C.CASE LAW - ADVOCATEMMMOHAN: whether the civil Court has no jurisdiction for eviction of a tenant by landlord as the SARFAESI proceedings were initiated by the bank aganist the landlord ? - No The appellants herein/the tenants are neither the guarantors nor any person inducted into the possession of the secured asset/suit schedule property by way of a lease after notice under Section 13 (2) was given and default committed. Admittedly they have been inducted into the possession of the plaint schedule property on 01.11.2011 by virtue of an oral lease and they have committed default of payment of rent with effect from 01.12.2012 and the creditor bank took symbolic possession of the secured asset/plaint schedule property of the borrower/landlord on 18.09.2015 under the provisions of SARFAESI Act which was not injucted by the Courts below. The present case which was dealt by the Courts below is totally falls outside the purview of the proceedings of the SARFAESI Act and the Judgments and decrees of the Courts below do not hit or inject the Debt Recovery Tribunal or any other Appellate Tribunal to function under the provisions of SARFAESI Act with reference to the very same plaint schedule property which is a secured asset mortgaged by the borrower/the landlord/the respondent herein. There is no conflict of orders passed by the Courts below with the orders that may be passed under SARFAESI Act and RDBI Act 1993.

Friday, March 26, 2021

whether the civil Court has no jurisdiction for eviction of a tenant by landlord as the SARFAESI proceedings were initiated by the bank aganist the landlord ? - No The appellants herein/the tenants are neither the guarantors nor any person inducted into the possession of the secured asset/suit schedule property by way of a lease after notice under Section 13 (2) was given and default committed. Admittedly they have been inducted into the possession of the plaint schedule property on 01.11.2011 by virtue of an oral lease and they have committed default of payment of rent with effect from 01.12.2012 and the creditor bank took symbolic possession of the secured asset/plaint schedule property of the borrower/landlord on 18.09.2015 under the provisions of SARFAESI Act which was not injucted by the Courts below. The present case which was dealt by the Courts below is totally falls outside the purview of the proceedings of the SARFAESI Act and the Judgments and decrees of the Courts below do not hit or inject the Debt Recovery Tribunal or any other Appellate Tribunal to function under the provisions of SARFAESI Act with reference to the very same plaint schedule property which is a secured asset mortgaged by the borrower/the landlord/the respondent herein. There is no conflict of orders passed by the Courts below with the orders that may be passed under SARFAESI Act and RDBI Act 1993.

whether the civil Court has no jurisdiction for eviction of a tenant by landlord as the SARFAESI proceedings were initiated by the bank aganist the landlord ? - No

The appellants herein/the tenants are neither the guarantors nor any person inducted into the possession of the secured asset/suit schedule property by way of a lease after notice under Section 13 (2) was given and default committed. Admittedly they have been inducted into the possession of the plaint schedule property on 01.11.2011 by virtue of an oral lease and they have committed default of payment of rent with effect from 01.12.2012 and the creditor bank took symbolic possession of the secured asset/plaint schedule property of the borrower/landlord on 18.09.2015 under the provisions of SARFAESI Act which was not injucted by the Courts below.

The present case which was dealt by the Courts below is totally falls outside the purview of the proceedings of the SARFAESI Act and the Judgments and decrees of the Courts below do not hit or inject the Debt Recovery Tribunal or any other Appellate Tribunal to function under the provisions of SARFAESI Act with reference to the very same plaint schedule property which is a secured asset mortgaged by the borrower/the landlord/the respondent herein. There is no conflict of orders passed by the Courts below with the orders that may be passed under SARFAESI Act and RDBI Act 1993.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

HON’BLE SRI JUSTICE B.KRISHNA MOHAN

SECOND APPEAL No.28 OF 2021

Between:

Barigala Kotesh, S/o. Peturu & another

… APPELLANTS

AND

Bandaru Yedukondalu, S/o. Venkateswarlu

... RESPONDENT

DATE OF JUDGMENT PRONOUNCED : 12.02.2021

SUBMITTED FOR APPROVAL

HONOURABLE SRI JUSTICE B. KRISHNA MOHAN

1. Whether Reporters of Local Newspapers

may be allowed to see the order? Yes/No

2. Whether the copy of order may be

marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the

fair copy of the order? Yes/No

_________________________

JUSTICE B. KRISHNA MOHAN

2 BKMJ

Sa No.28 of 2021

*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

*HONOURABLE SRI JUSTICE B. KRISHNA MOHAN

+ SECOND APPEAL No.28 OF 2021

% Dated : 12.02.2021

Between:

# Barigala Kotesh, S/o. Peturu & another

… APPELLANTS

AND

$ Bandaru Yedukondalu

... RESPONDENT

! Counsel for appellants : Mr. G. Rama Chandra Reddy

^Counsel for Respondent : Mr. Phani Teja Cheruvu

<GIST :

>HEAD NOTE:

? Cases referred:

1 Dt.11.09.2019 in Criminal Appeal Nos.1371 of 2019

2 Dt. 27.08.2020 in Civil Appeal Nos.2843-2844 of 2010

3 Dt. 21-01-2021 in SPECIAL LEAVE PETITION (C) Nos.15870 of 2020

4 Dt.06-05-2016 in CIVIL APPEAL Nos.4083-4084 of 2016

5 Dt. 25-11-2014 in CIVIL APPEAL No.10589 OF 2014

6 Dt. 17-07-2017 in CIVIL APPEAL No.9151 of 2017

7 Dt. 27-01-2021 in CIVIL APPEAL No.6744 of 2013

8 Dt.18.01.2016 in Civil Appeal No.167 of 2007

3 BKMJ

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HON’BLE SRI JUSTICE B.KRISHNA MOHAN

SECOND APPEAL No.28 OF 2021

JUDGMENT:

This second appeal is filed against the Judgment and decree in

A.S.No.82 of 2020 on the file of the V Additional District Judge,

Guntur, FAC III Additional District Judge, Guntur, dated 21.12.2020

confirming the Judgment and decree in O.S.No.122 of 2016 on the file

of the Senior Civil Judge, Mangalagiri, dated 05.05.2020 ordering the

eviction of the appellants herein/tenants to deliver the vacant

possession of the plaint schedule property to the respondent

herein/landlord and comply with the other reliefs granted by the

Courts below.

2. The appellants herein are the appellants in the first appeal and

the defendants in the suit. The respondent herein is the respondent

in the first appeal and the plaintiff in the suit.

3. Heard the learned counsel for the appellants and the learned

counsel for the respondent.

4. The plaintiff initiated an action in O.S.No.122 of 2016 on the

file of the Senior Civil Judge, Mangalagiri against the defendants for

eviction and delivery of the vacant possession of the plaint schedule

property, for the payment of arrears of Rs.4,25,700/- and damages

for use and occupation unauthorisedly from 01.03.2016 to 31.05.2016

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at the rate of Rs.20,000/- per month with interest at the rate of 24%

per annum from the date of suit till the date of realisation and costs.

5. The plaintiff contends that he is the absolute owner of the

plaint schedule property, the defendants herein took the said

property/apartment/flat on 01.11.2011 for a monthly rent of

Rs.8,000/- under an oral lease and the rent was enhanced to

Rs.12,900/- per month with effect from 01.12.2012, in-spite of

enjoying the possession of the said property as tenants, the

defendants have committed default in payment of monthly rent with

effect from 01.12.2012, due to which the plaintiff became a defaulter

before the creditor bank of ICICI Bank, in those circumstances he filed

a case in RCC No.4 of 2013 before the Rent Controller, Mangalagiri for

eviction against the 1st defendant and the same was allowed and the

appeal preferred by the 1st defendant/tenant in RCA was allowed

setting aside the order in RCC on the point of jurisdiction, as such the

defendants continued as tenants in the schedule premises without

paying any rents with effect from December, 2012 and that apart the

defendants filed a suit in O.S.No.291 of 2015 on the file of the

Principal Junior Civil Judge, Mangalagiri for permanent injunction

against the landlord/plaintiff herein which is being contested by the

plaintiff herein. Subsequently the plaintiff got issued a statutory

notice, dated 03.02.2016 to the defendants terminating the lease of

the schedule property/apartment by the end of the month of

February, 2016 calling upon them to vacate the plaint schedule

property within 15 days from the date of receipt of the said notice by

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paying the arrears of rent since December, 2012 till the date of

vacation of the premises at the rate of Rs.12,900/- per month and

payment of damages for the unauthorised occupation at the rate of

Rs.20,000/- per month till the premises is vacated. Since the

defendants did not comply with the said demand notice, the plaintiff

was constrained to file the suit for eviction, for damages and recovery

of arrears of rent since December, 2012 to till the date of eviction.

6. Then, the defendants filed a written statement denying the

averments and contentions of the plaintiff contending further that the

plaintiff purchased the plaint schedule property/the apartment under

a valid registered sale deed obtaining loan from ICICI Bank, Bandar

Road Branch, Vijaywada, became a defaulter in payment of loan

installments and as such the plaintiff intended to sell the said

property, then one Mr. Barigala Suresh, purchased the said property

for an amount of Rs.18 lakhs by paying an advance amount of

Rs.5 lakhs under an agreement of sale dated 13.10.2011, the said

purchaser is none other than the brother of the 1st defendant, the

plaintiff delivered the possession of the suit schedule property and

the brother of the 1st defendant/the purchaser has let out the said

property to the 1st defendant and as such, they have been in

possession and enjoyment of the same on a rent of Rs.5,000/- per

month and the 2nd defendant filed a complaint in crime No.159 of

2015, dated 29.06.2015 against the plaintiff and others under Sections

323, 427, 506, 509 r/w 34 of IPC, Section 3-1-1, 3-1-X SC, ST POA Act

which is pending before the Mangalagiri Town police station.

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7. Basing upon the above said rival averments and contentions, the

trail Court framed the issues as follows :-

(1) Whether the plaintiff has got title over the

plaint schedule property or not ?

(2) Whether the defendants are tenants of plaintiff

with regard to the plaint schedule property or

not ?

(3) Whether the defendants committed wilful

default in payment of rent for the plaint

schedule property or not ?

(4) Whether the defendants are liable to pay the

damages as prayed by the plaintiff or not ?

(5) Whether the plaintiff is entitled for the eviction

as sought for or not ?

(6) To what relief ?

8. During the course of trial on behalf of the plaintiff, PWs.1 and 2

were examined and Exs.A1 to A13 were marked. On behalf of the

defendants, DW1 was examined and no document was marked.

9. The plaintiff in his deposition besides relying upon the

averments of the plaint further stated that he became the chronic

defaulter in repayment of loan due to non payment of rents by the

defendants and as such the ICICI bank took symbolic possession of the

plaint schedule property under SARFAESI Act on 18.09.2015 and the

bank is trying to auction the same for realisation of their debt. In

furtherance of the same, the bank has also filed O.A No.716 of 2016

before the Debt Recovery Tribunal, Visakhapatnam which is pending

for trial.

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10. After considering the evidence on record, the trial Court gave a

finding that there is no proof to show that the plaint schedule

property belongs to the said Barigala Suresh as contended by the

defendants and they miserably failed in proving the said

contention/transaction and the defendants have committed default in

payment of rent and they are due for arrears of payment of rent and

damages along with the vacation of the premises. Ultimately the suit

is decreed with costs vide it’s judgment dated 05.05.2020 directing

the defendants to vacate and deliver the plaint schedule property, to

pay the arrears of rent of Rs.4,25,700/-, to pay damages of

Rs.20,000/- per month from 01.03.2016 to 31.05.2016 for an

unauthorized occupation of the premises from the date of the suit till

the date of realization and deliver the vacant possession to the

plaintiff with interest thereupon at the rate of 6% per annum from the

date of suit till the date of realisation.

11. Aggrieved by the same, the defendants therein/tenants

preferred an appeal in A.S.No.82 of 2020 on the file of the III

Additional District Judge, Guntur. While considering the same, the

lower appellate Court framed the following points :

1. Whether there is a landlord and tenant

relationship existed between the plaintiff and

defendants ?

2. Whether the defendants committed wilful

default in payment of rents for the plaint

schedule property ?

3. Whether the plaintiff is entitled for eviction of

defendants as prayed for ?

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4. Whether this appellate Court finds any reasons

to interfere with the findings on the trial Court?

5. To what relief ?

12. It has observed that the appellants therein/the tenants raised

an additional plea that the civil Court has no jurisdiction as the

SARFAESI proceedings were initiated by the bank and the bank has

also filed O.A.No.716 of 2016 against their landlord/the respondent

therein and service of summons was also marked as Ex.A13 before the

trial Court. While considering the case on merits, the lower appellate

Court gave a finding that in case of any grievance for the appellants

as tenants they can approach the Debt Recovery Tribunal under the

relevant provisions of the SARFAESI Act and with regard to the

findings of the trial Court, the same was confirmed, dismissing the

appeal vide it’s Judgment, dated 21.12.2020. Against the said

confirming Judgments and decrees the appellants herein/the tenants

filed the Second Appeal before this Court by framing a ground as

“substantial question of law” to the effect that “the jurisdiction of

the civil Court is barred and the proceedings under SARFAESI Act are

alone available to proceed against the appellants herein/the tenants

and the respondent herein/the landlord cannot continue the eviction

proceedings against them and as such the Judgments of the Courts

below are liable to be set aside on the ground of lack of jurisdiction.”

13. To substantiate the same, the learned counsel for the

appellants refers to the following Sections of law under the provisions

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of Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002.

Section 13 :

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.

(2) Where any borrower, who is under a liability to a

secured creditor under a security agreement, makes any

default in repayment of secured debt or any installment

thereof, and his account in respect of such debt is

classified by the secured creditor as non-performing

asset, then, the secured creditor may require the

borrower by notice in writing to discharge in full his

liabilities to the secured creditor within sixty days from

the date of notice failing which the secured creditor

shall be entitled to exercise all or any of the rights

under sub-section (4).

1[Provided that—

(i) - - -

(ii) - - -

(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) - - -

(d) require at any time by notice in writing, any person

who has acquired any of the secured assets from the

10 BKMJ

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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.

(5) Any payment made by any person referred to in

clause (d) of sub-section (4)to the secured creditor shall

give such person a valid discharge as if he has made

payment to the borrower.

17. 1[Application against measures to recover secured

debts].—(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,2

[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:

[(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 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

11 BKMJ

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(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

appropriate and necessary in relation to any of the

recourse taken by the secured creditor under subsection (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.

[(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

(d) is created after the issuance of notice of default

and demand by the Bank under sub-section (2) of

section 13 of the Act; and

(ii) the Debt Recovery Tribunal is satisfied that tenancy

right or leasehold rights claimed in secured asset falls

under the sub-clause (a) or sub-clause (b) or sub-clause

12 BKMJ

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anything to the contrary contained in any other law for

the time being in force, the Debt Recovery Tribunal may

pass such order as it deems fit in accordance with the

provisions of this Act.]

(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 - - -

34. Civil court not to have jurisdiction.—No civil court

shall have jurisdiction to entertain any suit or

proceeding in respect of any matter which a Debts

Recovery Tribunal or the Appellate Tribunal is

empowered by or under this Act to determine and no

injunction shall be granted by any court or other

authority in respect of any action taken or to be taken in

pursuance of any power conferred by or under this Act or

under the Recovery of Debts Due to Banks and Financial

Institutions Act, 1993 (51 of 1993).

35. The provisions of this Act to override other laws.—

The provisions of this Act shall have effect,

notwithstanding anything inconsistent therewith

contained in any other law for the time being in force or

any instrument having effect by virtue of any such law.

37. Application of other laws not barred.—The

provisions of this Act or the rules made thereunder shall

be in addition to, and not in derogation of, the

Companies Act, 1956 (1 of 1956), the Securities Contracts

(Regulation) Act, 1956(42 of 1956), the Securities and

Exchange Board of India Act, 1992 (15 of 1992), the

Recovery of Debts Due to Banks and Financial Institutions

Act, 1993 (51 of 1993) or any other law for the time

being in force.

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14. Per contra the learned counsel for the respondent refers to

some of the decisions of the Hon’ble Supreme Court of India and the

Hon’ble High Court – Jodhpur as follows :

01. Criminal Appeal Nos.1371 of 2019, Dt.11.09.20191

on the file of

Hon’ble THE SUPREME COURT OF INDIA, held in para No.20 of Page 14 as.,

“While Section 13 (13) of SARFAESI prohibits a

borrower from leasing out any of the secured assets

after receipt of a notice under Section 13 (2) without

the prior written consent of the secured creditor”.

02. Civil Appeal Nos.2843-2844 of 2010, Dt. 27.08.20202

on the file of

Hon’ble THE SUPREME COURT OF INDIA, held in para No.25 of Page 11 as.,

“25. A second appeal, or for that matter, any appeal

is not a matter of right. The right of appeal is

conferred by statute. A second appeal only lies on a

substantial question of law. If statute confers a

limited right of appeal, the Court cannot expand the

scope of the appeal. It was not open to the

Respondent-Plaintiff to re-agitate facts or to call

upon the High Court to reanalyze or re-appreciate

evidence in a Second Appeal.”

03. SPECIAL LEAVE PETITION (C) Nos.15870 of 20203

, Dt. 21-01-2021 on

the file of Hon’ble THE SUPREME COURT OF INDIA, held in para No.18 OF

Page 6 as.,

“18. The Court must interpret a statute in a manner

which is just, reasonable and sensible. If the

grammatical construction leads to some absurdity or

some repugnancy or inconsistency with the legislative

intent, as may be deducted by reading the provisions

of the statute as a whole, the grammatical

construction may be departed from to avoid anomally,

1 Dt.11.09.2019 in Criminal Appeal Nos.1371 of 2019

2 Dt. 27.08.2020 in Civil Appeal Nos.2843-2844 of 2010

3 Dt. 21-01-2021 in SPECIAL LEAVE PETITION (C) Nos.15870 of 2020

14 BKMJ

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absurdity or inconsistency. To quote Venkatarama

Aiyar, J. In Tirath Singh v. Bachittar Singh. AIR 1955

SC 830 (at 833), “where the language of a statute, in

its ordinary meaning and grammatical construction,

leads to a manifest contradiction of the apparent

purpose of the enactment, or to some inconvenience

or absurdity, hardship or injustice, presumably not

intended, a construction may be put upon it which

modifies the meaning of the words, and even the

structure of the sentence.” This view has been

reiterated by this Court.”

04. CIVIL APPEAL Nos.4083-4084 of 2016, Dt.06-05-20164

on the file of

Hon’ble THE SUPREME COURT OF INDIA, held as in Para No.14 as.,

“The issues of facts once finally determined will

however, stare at the parties and bind them on

account of earlier judgments or for any other good

reason where equitable principles of estoppel are

attracted.”

05. CIVIL APPEAL No.10589 OF 2014, Dt. 25-11-20145

on the file of

Hon’ble THE SUPREME COURT OF INDIA, held in para No.13 as.,

“13. In the present case, we find this statement of law

would apply on all fours. The judgment of the Trail

Court has been decided issue wise, on the merits,

after hearing both parties. The suit has finally been

decreed. Consequently this judgment cannot be

reversed purely on technical grounds unless there is a

failure of justice, which we have seen, is nobody’s

case.”

06. CIVIL APPEAL No.9151 of 2017, Dt. 17-07-20176

on the file of Hon’ble

THE SUPREME COURT OF INDIA, held in Para No.48 as.,

“48)We sincerely feel that the eviction matters should

be given priority in their disposal at all stages of

4 Dt.06-05-2016 in CIVIL APPEAL Nos.4083-4084 of 2016

5 Dt. 25-11-2014 in CIVIL APPEAL No.10589 OF 2014

6 Dt. 17-07-2017 in CIVIL APPEAL No.9151 of 2017

15 BKMJ

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litigation and especially where the eviction is claimed

on the ground of bona fide need of the landlord. We

hope and trust that due attention would be paid by all

courts to ensure speedy disposal of eviction cases.”

07. CIVIL APPEAL No.6744 of 2013, Dt. 27-01-2021 7on the file of Hon’ble

THE SUPREME COURT OF INDIA, held in Para No.8 as.,

“The first appeal is a valuable right, and, at that

stage, all questions of fact and law decided by the

trial court are open for re-consideration. The

judgment of the appellate court must, therefore,

reflect conscious application of mind and must record

the court’s findings, supported by reasons for its

decision in respect of all the issues, along with the

contentions put forth and pressed by the parties.”

08. In Civil Appeal No.167 of 2007, Dt.18.01.20168

on the file of Hon’ble

THE SUPREME COURT OF INDIA, held in para Nos.22, 23, 24, as.,

“22) That apart, we find that the appellants were

able to prove their ownership through their

predecessor-in-title on the strength of sale deed

(Ex.P.6/7) of the suit premises whereas the

respondents failed to prove their defence. Indeed, the

burden being on them, it was necessary for the

respondents to prove that the sale in favour of the

appellants’ predecessor-in-title of suit premises was a

transaction of mortgage and not an outright sale.

Since the respondents did not adduce any

documentary or oral evidence to prove their defence,

the first appellate Court was justified in allowing the

eviction petition. In our view, the evidence adduced

by the appellants to prove their title over the suit

premises was sufficient to maintain eviction petition

against the respondents and it was, therefore, rightly

accepted by the first appellate Court.

7 Dt. 27-01-2021 in CIVIL APPEAL No.6744 of 2013

8 Dt.18.01.2016 in Civil Appeal No.167 of 2007

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23) As observed supra, the first appellate Court

having recorded categorical findings that the

relationship of landlord-tenant was proved and

secondly, the respondents had committed a wilful

default in payment of monthly rent and its arrears

from 01.06.1987, these findings were binding on the

High Court while deciding the revision petition. It was

more so when these findings did not suffer with any

jurisdictional error which alone would have entitled

the High Court to interfere.

24) Learned counsel for the respondents lastly argued

that there was an encroachment made by the

appellants on the suit premises and document (Ex-P-6)

was inadmissible in evidence, hence the eviction

petition was liable to be dismissed on these two

grounds also. These submissions, in our considered

view, deserve to be rejected at their threshold

because the same were not raised in the written

statement filed by the respondents before the Rent

Controller and nor were urged at any stage of the

proceedings. We cannot, therefore, allow such factual

submissions to be raised for the first time in this

appeal.”

09. The Hon’ble Rajasthan High Court – Jodhpur in I.C.I.C.I. Bank

Limited Vs. Krishna Kumar & Others on 27 April, 2018 held as.,

“Before incorporation of sub-section (4-A) and

substitution of sub-section (3) in Section 17 of the

SARFAESI Act as above, there was no remedy

available to a tenant who was being dispossessed

(25 of 25) [CW-16965/2017] under the SARFAESI Act

and hence, it was in those circumstances that the

judgment in the case of Vishal N. Kalsaria (supra)

was passed. 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

17 BKMJ

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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.”

15. As stated supra, Section 13 (1) of the SARFAESI Act, 2002 speaks

about the power of a secured creditor to enforce any security interest

without interference of the Court or Tribunal.

Section 13 (2) of the said Act speaks about the power of the

secured creditor to issue notice calling upon to discharge the full

liability of the borrower within 60 days in case of default and

declaration of the account as non-performing asset.

Section 13 (4) (a) empowers the creditor to recover the secured

debt by taking possession of the secured assets of the borrower

including the right of transfer by way of lease, assignment of sale

etc., in the case of default and violation of Section 13 (2).

Section 13 (4) (d) empowers the secured creditor to issue a

notice to any person who acquired the security asset to pay money to

the creditor to satisfy the secured debt of the borrower. As per

Section 13 (5) any payment made by such a person as per Section 13

(4) (d) to the secured creditor is a valid discharge.

As stated supra, Section 17 (1) enables to file an application by

any person (including the borrower) to question the measures taken

by the secured creditor under Section 13 (4) within 45 days from the

date of such measures taken.

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Sa No.28 of 2021

Under Section 17 (4A) the Debt Recovery Tribunal would go into

the issues and examine the facts of the case with reference to the

situations enshrined in sub clause (a) to (d) of Section 17 (4A) (i)

provided either any tenant or lessee files an application under Section

17 (1).

Section 34 bars the jurisdiction of Civil Court to entertain any

suit or proceedings in respect of the matters having jurisdiction of the

Debt Recovery Tribunal or the Appellate Tribunal under the provisions

of SARFAESI Act, 2002 and the RDBI Act, 1993 and no injunction can

be granted for the action taken under the said Acts.

16. It is to be carefully seen that all the above said provisions of the

SARFAESI Act do not come to the rescue of the appellants/tenants

herein as none of the situations and circumstances are applicable to

the facts and circumstances of the present case. The appellants

herein/the tenants are neither the guarantors nor any person

inducted into the possession of the secured asset/suit schedule

property by way of a lease after notice under Section 13 (2) was given

and default committed. Admittedly they have been inducted into the

possession of the plaint schedule property on 01.11.2011 by virtue of

an oral lease and they have committed default of payment of rent

with effect from 01.12.2012 and the creditor bank took symbolic

possession of the secured asset/plaint schedule property of the

borrower/landlord on 18.09.2015 under the provisions of SARFAESI Act

which was not injucted by the Courts below. At least it is not the

19 BKMJ

Sa No.28 of 2021

case of the appellants/the tenants that they have made an

application under Section 17 (1) seeking shelter under sub Clause (4A)

of Section 17 of the SARFAESI Act. Obviously they could not do so,

because they are not inducted into the suit schedule property

subsequent to the notice issued under Section 13 (2) and symbolic

possession taken under Section 13 (4). Hence they can’t be termed as

any person or tenant under the provisions of SARFAESI Act.

17. The present case which was dealt by the Courts below is totally

falls outside the purview of the proceedings of the SARFAESI Act and

the Judgments and decrees of the Courts below do not hit or inject

the Debt Recovery Tribunal or any other Appellate Tribunal to

function under the provisions of SARFAESI Act with reference to the

very same plaint schedule property which is a secured asset

mortgaged by the borrower/the landlord/the respondent herein.

There is no conflict of orders passed by the Courts below with the

orders that may be passed under SARFAESI Act and RDBI Act 1993.

From the above said facts and circumstances and legal position, it is

obvious and evident that the appellants’ relationship is only with their

landlord and they are nothing to do with the secured creditor/the

banker who advanced housing loan to their landlord as a borrower.

Just because their landlord has become the defaulter before the bank

with reference to payment of equated monthly installments of a

housing loan with respect to the plaint schedule property, the tenants

cannot take undue advantage of the same and exploit by refraining to

20 BKMJ

Sa No.28 of 2021

make payments of rents flouting their oral lease and understanding

between the parties.

18. In view of the forgoing reasons, the Second Appeal has to fail as

there is no substantial question of law for interference of this Court

under Section 100 C.P.C. and the appellants herein are directed to

vacate the plaint schedule property within four (4) months from today

by complying with the other terms of the decree of the trial Court as

it is. It is needless to mention that the respondent shall bring it to

the notice of the secured creditor and the learned Debt Recovery

Tribunal in which the proceedings are pending about this Judgment of

this Court enabling them to take necessary action and passing of

orders suitably with respect to the secured asset of the respondent

herein/borrower under the provisions of SARFAESI Act r/w RDBI Act.

19. Accordingly, the Second Appeal is dismissed. There shall be no

order as to costs.

As a sequel, miscellaneous petitions, if any pending in the

Second Appeal, shall stand closed.

_________________________

JUSTICE B. KRISHNA MOHAN

12th February, 2021.

Note:-

L.R. Copy to be marked.

(B/o)

Yvk

A.P.H.C.CASE LAW - ADVOCATEMMMOHAN

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Friday, March 26, 2021

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