Gujarat High CourtSmt. Jayshreeben Amitkumar Chauhan vs Jashwantlal Bhulabhai Parmar & 2 on 15 February, 2017Author:N.V.AnjariaBench:N.V.AnjariaC/SCA/7676/2016                                                    ORDER




                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      SPECIAL CIVIL APPLICATION NO. 7676 of 2016

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                SMT. JAYSHREEBEN AMITKUMAR CHAUHAN....Petitioner(s)
                                     Versus
                JASHWANTLAL BHULABHAI PARMAR & 2....Respondent(s)
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         Appearance:
         JAIMIN A GANDHI, ADVOCATE for the Petitioner(s) No. 1
         MR BHAVIK J PANDYA, ADVOCATE for the Petitioner(s) No. 1
         MR HIRAN M SHROFF, ADVOCATE for the Respondent(s) No. 2
         NOTICE SERVED BY DS for the Respondent(s) No. 3
         PUNITA H JOSHI, ADVOCATE for the Respondent(s) No. 1
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          CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA

                                         Date : 15/02/2017


                                          ORAL ORDERHeard learned advocate Mr. Jaimin Gandhi for the
         petitioner and learned advocate Mr. Hiren Shroff for
         the respondent No.2.                 None appeared for the first and
         third respondents though served with the notice.2.     What is prayed by the petitioner herein is to
         hold    that      no        action      could         be     taken         against           him
         without       hearing          him       undersection            13of       the
         Securitisation and Reconstruction of Financial Assets
         and Enforcement of Security Interest Act, 2002, nor
         any order undersection 14of the said act could be
         passed without hearing him.                           The second limb                 of the
         prayer is to direct the civil court concerned toPage 1 of 6HC-NIC                                        Page 1 of 6       Created On Sun Aug 13 16:25:01 IST 2017C/SCA/7676/2016                                                       ORDERexpedite the hearing and adjudicate the injunction
         application in Regular Civil Suit No. 3/2015.3.     The petitioner asserts that he is a tenant of
         the     property           in   question               being        11,        Natwarnagar
         Society, Naswadi, Chhoteudaipur, which was rented to
         him by the first respondent herein in June, 2013.
         The    first       respondent            happens            to     be      the       original
         borrower who took financial assistance from the bank.
         It further appears that the petitioner has instituted
         a    Regular       Civil        Suit       No.3        of      15      for       relief            of
         permanent          injunction            against             the        respondent                 to
         restrain them from obtaining possession of the said
         property on the ground that the petitioner has a
         valid tenancy rights therein.                               It appears that the
         bank    has    proceeded          against              the       original            borrower
         under the SARFAESION Act. 2002, to recover the unpaid
         dues.         In     this       regard,             an      advertisement                  dated
         13.02.2016 is published in the newspaper.                                               As the
         said     proceedings             by       the          bank        are        afoot,           the
         petitioner feels aggrieved and has filed the present
         petition.4.     The respondent No.2 bank has filed affidavit-in-
         reply contentious the petition, stating that notice
         dated 08.02.2016 was issued by the bank undersection
         13(4)of the SARFAESI Act,2002.5.     The essence of the grievance and the case of the
         petitioner is that he has rights as a tenant in the
         property which is a secured asset in respect of the
         loan transaction between the second respondent bankPage 2 of 6HC-NIC                                         Page 2 of 6        Created On Sun Aug 13 16:25:01 IST 2017C/SCA/7676/2016                                            ORDERand the first respondent borrower, and in connection
         therewith the bank has taken steps to seek possession
         of the property in process of recovery of the dues
         under theSARFAESI Act.                   The petitioner therefore
         apprehends that he will loose possession.                                   He has
         sought declaration that action under theSARFAESI
         Actwould not be competent against him, unless he is
         heard and his tenancy rights are duly considered.5.1 In the facts of the case, there is no gainsaying
         that   the    petitioner     falls        within        the      category              of
         'aggrieved person' within the meaning ofsection 17of the SARFAESI Act.Section 17provides for an
         appeal before the Debt Recovery Tribunal which is a
         remedy available in respect of the measures taken
         under theSARFAESI Actand any aggrieved may have
         such remedy.          Even the contention of the petitioner
         about he having the tenancy rights, can be examined
         by the Tribunal in the appeal as available as above.5.2 It is further relevant to take note that the
         Legislature has amendedSection 17of the Act as per
         the Enforcement of Security Interest and Recovery of
         Debts Laws and Miscellaneous Provisions (Amendment)
         Act, 2016.5.3 Amongst other amendments, sub section (4A) was
         inserted inSection 17which reads as under,

                      (4A) Where-(i) any person, in an application
                      under sub-section (1), claims any tenancy or
                      leasehold rights upon the secured asset, the
                      Debts Recovery Tribunal, after examining the
                      facts of the case and evidence produced by thePage 3 of 6HC-NIC                               Page 3 of 6      Created On Sun Aug 13 16:25:01 IST 2017C/SCA/7676/2016                                                 ORDERparties in relation to such claims shall, for
                       the   purpose   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; or(c) is contrary to terms of mortgage; 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 Debts Recovery Tribunal is satisfied that
               tenancy right or leasehold rights claimed in secured
               asset falls under 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 Debts
               Recovery Tribunal may pass such order as it deems fit
               in accordance with the provisions of this Act.6    In    view      of      above,    it       is       clear       that       all       the
         questions including claim of tenancy rights can be
         examined by the Tribunal in an appeal underSection
         17of    the     Act      allowing       the       parties          to      lead       the
         evidence. The Tribunal, after examining the facts of
         the       case     including          claim         of     tenancy            right            or
         leasehold          rights       and      considering                 the        evidence
         produced by the parties in relation to such claim,
         would be passing an order as it may deem fit.6.1 The aforesaid provisions of the Act as inserted
         undoubtedly gives a locus standi to a party to claim
         tenancy right or leasehold rights in relation to the
         secured      assets          before    the      Tribunal             by     preferring
         appeal underSection 17of the Act. In other words,
         there is an alternative remedy underSection 17of
         the Act of an appeal before the Tribunal and to getPage 4 of 6HC-NIC                                     Page 4 of 6        Created On Sun Aug 13 16:25:01 IST 2017C/SCA/7676/2016                                                  ORDERthe    issues     of       tenancy     right         and       leasehold           rights
         determined by the Tribunal by adducing evidence.6.2 It is well settled that when the remedy undersection 17of the Act is available to approach by way
         of    appeal    before        the    Debt          Recovery         Tribunal,             the
         petitioner has to avail the same. The petitioner is
         entitled to raise all the issues including the claim
         of tenancy while pursuing such alternative forum. The
         stage at which the case is placed, is an appropriate
         stage where the remedy before the Tribunal could be
         properly pursued. It is held by the Supreme Court
         that    order       undersection             14of       the       Act        also
         constitutes        post-13(4)         stage         to      avail         alternative
         remedy and challenge the order passed undersection
         14of the Act.InUnited Bank of India vs. Satyawati
         Tondon and Others[(2010) 8 SCC 110], the Supreme
         Court    cautioned           about        the           High       Court          readily
         entertaining           writ         petitions              even          though               an
         efficacious        remedy      of    appeal          undersection          17is
         available to the aggrieved party.7.      The petitioner is therefore relegated to the
         remedy of appeal underSection 17of the Act before
         the Debts Recovery Tribunal. He may raise all the
         contentions before the Tribunal, which are sought to
         be raised in this petition.8.     While dealing with the aspect of condonation of
         delay, if any, the factum and aspect of filing of
         the present petition and pendency thereof till date,Page 5 of 6HC-NIC                                   Page 5 of 6         Created On Sun Aug 13 16:25:01 IST 2017C/SCA/7676/2016                                                    ORDERshall be given due regard by the Tribunal.8.1 It is clarified that this court has not gone
         into the merits of the case of the petitioner.                                                      In
         the event, the petitioner avails remedy of appeal
         before the Tribunal, the Tribunal shall consider the
         case of the parties and decide the same on merits.9.        Accordingly, this petition is not liable to be
         entertained             on       the      aforesaid               ground           that         the
         alternative statutory efficacious remedy of appeal
         is        available.           Therefore,            leaving        the       said        remedy
         open        to    be     resorted          to        by     the       petitioner,               the
         petition is not accepted.The petition stands disposed of in the aforesaid
         terms.(N.V.ANJARIA, J.)
         cmjoshiPage 6 of 6HC-NIC                                          Page 6 of 6        Created On Sun Aug 13 16:25:01 IST 2017