Hon'ble Sudhanshu Dhulia, J. (Oral)

1. The petitioner before this Court is a tenant in a premises no. 760 Indra Nagar Colony, Niranjanpur, P.O New Forest, Dehradun. He is aggrieved primarily by the action of respondent no. 2 i.e Punjab National Bank through its Chief Manager, Karanpur, Dehradun, who has initiated proceedings under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (from hereinafter referred to as the Act.).

2. The contention of the petitioner is that he has not taken any loan and has no liability towards the Bank. He is simply a tenant on the accommodation, which has been mortgaged by the landlord to the Bank i.e respondent no. 2, which has now initiated proceedings under the said Securitisation Act. In the present case respondent no. 3 had taken a loan from respondent no. 2 i.e Punjab National Bank, Karanpur, Dehradun in the year 2006. Since the loan was not repaid, a notice was issued under Section 13(2) of the Act to respondent no. 3 by respondent no. 2. Thereafter the Bank has moved before the Chief Judicial Magistrate, Dehradun for taking possession of the mortgaged property, which is a residential accommodation. The present petitioner is a tenant in the said accommodation and his prayers before this Court are as follows:-

“1. Issue a writ, order or direction in the nature of mandamus directing Respodnents not to interfere in the peaceful possession of the property nor to evict the petitioner from the part of tenancy in the property bearing no. 760 Indra Nagar Colony, Dehradun.

2. Issue any other and further order or direction which this Hon'ble Court may deem fit and proper in the nature of facts and circumstances of the case.

3. Award the cost to the petitioner.”

4. The contention of the respondent-Bank before this Court in its counter affidavit is that it has been specially stated by the Bank that the petitioner is not a bona fide tenant of the property, which has been mortgaged to the Bank. Moreover, the petition has for all practical purposes been filed by the petitioner on behalf of the borrower Rajinder Kishore Srivastava and the borrower is unnecessarily raising the plea on behalf of a tenant so that possession may not be taken by the Bank. In order to substantiate his argument the Bank has drawn the attention of this Court to a suit for injunction filed by the tenant i.e the present petitioner against respondent no. 3 i.e landlord being original suit no. 263/09, which is pending before the Civil Judge (Junior Division), Dehradun. The attention has been drawn by the counsel for the Bank Mr. S.K Jain of the order passed by the court on the temporary injunction application on 24.3.2009 The order indicates that at the time of passing of the order on the temporary injunction application, a caveat had already been filed by the landlord, who was present in the court and he did not object to the status quo being granted in favour of the tenant i.e the plaintiff!

5. The argument of the respondent-Bank would be that the suit itself was collusive in nature, as it was done after the landlord had received the notice under Section 13(2) of the Act, therefore, the objection of the respondent counsel is that the petitioner is not a bona fide tenant in the premise.

6. Be that as it may, this is an aspect, which cannot be adjudicated presently in the writ petition. All the same, the counsel for the Bank has in any case reiterated that assuming for the sake of argument that the petitioner is a tenant of the premises he has an alternative remedy to approach the Debts Recovery Tribunal under Section 17 of the Securitisation Act. The language of Section 17 of the Securitisation Act reads as follows:-

“17. Right to appeal.-(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 authorized officer under this Chapter, 1[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[Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.]

3[Explanation.-For the removal of doubts it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the Debts Recovery Tribunal under sub-section (1) of Section 17.]

[(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 ct and the rules made thereunder, and require restoration of the management of the secured assets to the borrower or restoration of possession of the secured assets to the borrower, it may by order, declare the recourse to any one or more measures referred to insub-section (4) of section 13 taken by the secured assets as invalid and restore the possession of the secured assets to the borrower or restore the management of the secured assets to the borrower, as the case may be, and pass such order 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.

(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.”

7. Much emphasis has been placed by the counsel for the Bank on “any person aggrieved” by any of the measures referred to in sub-section (4) of section 13. Therefore even if the petitioner is a tenant of the premise he would be covered under the broad definition of any person and he can move an appeal before the Debts Recovery Tribunal under Section 17 of the Act.

8. Learned counsel for the petitioner though relied upon the decision of the Karnataka High Court in the case of Hutchison Essar South Ltd. v. Union Bank of India reported in [AIR 2008 Karnataka 14] wherein as to the rights of a tenant occupant of the premises in a proceeding under Sections 13 and 14 of the Securitisation Act and question, inter alia, was “whether the third party can be dispossessed from the secured creditors under Section 13(7) and 14 of the Securitisation Act.” Answering to this question a Division Bench of the Karnataka High Court held as under:-

“22. The answer to the question of whether the actual possession can be taken under Sections 13 and 14 of the Securitisation Act cannot be a complete ‘yes’ or a complete ‘no’. It is partly in the affirmative and partly in the negative. If the secured asset is in the possession of the borrower, its possession can be taken in accordance with the provisions contained in Sections 13 and 14 of the Securitisation Act. If the borrower has inducted somebody overnight only to defeat the right of the bankers, then also the provisions of Sections 13 and 14 of the Securitisation Act can be pressed into service for taking the possession.

23. However if the secured assets is in the possession of a bona fide lessee or tenant, he cannot be thrown out by invoking Sections 13 and 14 of the Securitisation Act. In taking this vie, I am fortified by the decision of Punjab and Haryana High Court in the case of Prem Gupta (supra) (AIR 2007 (DOC) 174 (P&H). The decisions in the cases of C.B Gautam, Ghatge Patil Transport Company, Tata Consulting Engineers and of Adair Dutt (supra) rendered while examining the provisions of IT Act are of grant guidance in resolving the present controversy. What is contemplated under Sections 13 and 14 of the Securitisation Act is only symbolic possession and not actual possession, if a bona fide third party is in occupation of the secured assets. It is also open to the mortgagee-Bank to sell the assets with the tenancy intact. Possession notice under Section 13(4) of the Securitisation Act is like an attachment notice, but it does not entitle Bank to dispossess a person in possession of the mortgaged property. However, if the banker or purchaser of the secured asset has to take the actual possession, the same has to be in accordance with the due process of law only. This is the considered view taken by Patna High Court in the case of Abhay Kumar Pandey (supra) while dealing with the issue of possession of the property auctioned under Section 29 of the State Financial Corporation Act, 1951.”

9. Learned counsel appearing for the Bank Mr. S.K Jain on the other hand has relied upon Kailash Pati Asthana v. Authorized Officer, State Bank of India reported in [2011 (88) ALR 851] where in a largely similar controversy the rights of the tenant who is in possession of the premises under mortgage have been determined. The question before the Division Bench of the Allahabad High Court was that the rights of a tenant who is in occupation of a building which is governed by U.P Urban Planning and Development Act have to be determined in accordance with Act 13 of 1972 or will be governed under the Act, holding that in such a situation the Act will have a overriding effect. The Division Bench states as follows:-

“2. According to us, if petitioner is a statutory tenant, remedy is available under the Act, 1972 itself but a conflicting situation has arisen here whether the right under such Act can held the petitioner to override the provisions of the Act, 2002 or not. To that extent we have considered two Division Bench Judgments. One is of Madras High Court in Sree Lakshmi Products v. State Bank Of India, and the second is of ours High Court in Writ-C No. -39579 of 2010, Bhagwat Prasad Gupta v. State Bank of India, where it has been held that the tenant's right, is flowing from the right of the landlord. Therefore, if landlord's right is challengeable, tenants will have to suffer. Tenant's right is subject to the right of the landlord.”

10. However, at the same time the Division Bench also held that the tenant in any case is not without remedy, as under Section 17 of the Securitisation Act it has a remedy to approach the Debts Recovery Tribunal. This was done by the Division Bench of the Allahabad High Court following the decision of Madras High Court in the case of Sree Lakshmi Products v. State Bank Of India reported in [AIR 2007 Madras 148].

11. I am inclined to follow the decision of the Division Bench of Allahabad High Court decision which squarely cover the present matter and without going into the bona fide of the present petitioner i.e the tenant even assuming for the sake of argument that the petitioner is a tenant, he has a remedy before the Debts Recovery Tribunal. Another argument of the learned counsel for the petitioner is that the Bank has wrongly approached the Chief Judicial Magistrate, Dehradun under Section 15 and the order of the recovery for possession has been passed by the Chief Judicial Magistrate on 4.12.2010 on an application moved by the secured creditor i.e respondent no. 2 is totally without jurisdiction inasmuch as Section 14 of the Securitisation Act speaks of an application to be moved by the secured creditor either before the Chief Metropolitan Magistrate or the District Magistrate. There is no mention here of the Chief Judicial Magistrate.

12. Learned counsel for the petitioner has relied upon a decision of Division Bench of Bombay High Court in IndusInd Bank Ltd. v. State of Maharashtra reported in [2008 (2) Bom CR (Cri) 471] order to substantiate his argument wherein it has been held that an application under Section 14 of the Securitisation Act for taking possession before the Chief Judicial Magistrate is not contemplated under the Securitisation Act 2002 as the legislatures have put two authorities for this purpose:- (a) is Chief Metropolitan Magistrate and (b) the District Magistrate, and the Chief Judicial Magistrate has no jurisdiction in such matters.

13. The Learned counsel appearing for the Bank Mr. S.K Jain though has relied upon the Division Bench of the Kerela High Court wherein in similar controversy it has been held that the Chief Judicial Magistrate enjoys the same power of the Chief Metropolitan Magistrate and under Section 3 of the Code of Criminal Procedure, it has been specifically stated that one has to be read as another depending upon whether it is metropolitan or non-metropolitan area. In a case relating to 2002 Act, it has further been held that an application before the Chief Judicial Magistrate is maintainable. However, after going through both the judgments, I am inclined to agree with the Division Bench of Bombay High Court, as in my opinion, it lays down the correct law and since under Section 14 of the Securitisation Act the legislatures have deliberately omitted the word “Chief Judicial Magistrate and the only words are either “Chief Metropolitan Magistrate” or District Magistrate”. It has to be read that in a metropolitan area such an application under Section 14 and 15 will lie before the Chief Metropolitan Magistrate and in a non metropolitan area before the District Magistrate. All the same, since the petitioner has not challenged the order of the Chief Judicial Magistrate, nothing further than this can be stated at this juncture. The prayer of the petitioner for not taking possession from the petitioner cannot be allowed, as clearly in view of this Court the petitioner has a remedy to approach before the Debts Recovery Tribunal.

14. The writ petition therefore fails and is hereby dismissed. A month's time is allowed to the petitioner to approach before the Debts Recovery Tribunal. Till then no coercive measure will be taken against the petitioner.

15. No order as to costs.