Prajapath Ramesh Kumar vs. The Union Bank Of INDIA

The contents of the writ petition, in brief, are that the petitioner is a tenant of the subject premises since 2011 as is evidenced by GST Registration Certificate and owners of the said premises executed a registered lease deed in his favour on 26.12.2023 for a period of two years, which expires on 29.09.2025. That when his owners tried to evict him, he filed O.S.No.33 of 2024 on the file of learned Principal Junior Civil Judge, Kovur and the was ended in compromise before Lok Adalat bench, Kovur and an award passed on 16.03.2024 as per which the petitioner is entitled to continue in possession of the property till expiry of lease on 29.09.2025. r same was It is further stated in the writ petition that owners of the subject property mortgaged the said property to respondent no. 1-Bank on 20.06.2016 and they became defaulters, respondent no.l initiated SARFAESI Act proceedings for recovery of loan amount and vide orders dated 10.05.2024 passed in Crl.M.P.No.27 of 2024, an Advocate Commissioner was appointed. That owners of the property filed Writ Petition vide W.P.No.l2155 of 2024 and this Court granted stay of all further proceedings and later the said petition was disposed of on 28.04.2025 keeping in force the interim orders granted till 27.05.2025 on which date the Securitization Application No.250 of 2022 filed by petitioner in the said writ petition stood posted to. writ

Heard Sri V.Sai Kumar, learned counsel for the petitioner, and Sri R.S.Prakash Rao Kola, learned counsel for respondent no. 1/Bank.

Sri V. Sai Kumar, learned counsel for the petitioner, while reiterating the contents of the writ affidavit would contend that Certificate of Registration of Labour Department clearly shows that the petitioner has been continuing in ^CJ^‘RCJ 14085 of2025 5 possession of the subject premises being its tenant much prior to creation of mortgage over the subject premises in favour of the bank and therefore, the bank authorities ought to have added him as a party to the proceedings in Crl.M.P.No.27 of 2024 and hence the orders passed by the learned Chief Judicial Magistrate, Nellore are not binding on the petitioner. He would further contend that as per the registered lease deed dated 26.12.2023, the lease was in force up to 29.09.2025 and hence the petitioner is entitled to continue in possession of the property up to 29.09.2025. He would further contend that the commission warrant was entrusted to the Advocate Commissioner on r 10.05.2024, and as he could not execute the warrant within a reasonable period, now he cannot execute the same long after entrustment of warrant . and the respondent bank has to move the Chief Judicial Magistrate to get extension of time for taking possession of the secured asset. In support of his contention, the learned counsel relied on the decision of a coordinate bench of this Court in Mangalagiri Textile Mills Private Limited^ rep. by its India, rep. by its authorized officer and anothei^. Accordingly, prayed to allow the writ petition. \ 2022 see Online AP 525

Per contre', Sri Rsngd Suryd Prdkdsh Rdo Kold, leerned counsel for respondent no.l/Bank would contend that the lease deed dated 30.09.2011 f placed on record by the petitioner would go to show that the period of lease is for fourteen (14) years and same is a compulsorily registerable document 17 of the Registration Act and since the lease deed relied on by as per Section the petitioner is unregistered, it has no sanctity in the eye of law and carries value and consequently the tenancy covered under the said document can no considered from month to month. He would further contend that of the property mortgaged the property in favour of the bank in the year 2016, which is much prior to execution of registered lease deed in favour of the petitioner, therefore, the right of the petitioner, if any, are subservient rights exercisable by the bank on the subject property. He contend that warrant entrusted to the commissioner could not account of interim order granted by this Court on 30.05.2024, till 27.05.2025, and hence the contention raised by the that the warrant cannot be executed on account of efflux of time is only be owners to the mortgage would further be executed on which was in force petitioner untenable and is liable to be rejected. He would further contend that in view of availability of efficacious alternative remedy of preferring appeal before the Debt Recovery Tribunal as against the impugned orders, the writ petition is maintainable. Accordingly, prayed to dismiss the writ petition. not '.W(P.!N'o. 14085 of2025

Perused the material available on record and considered the submissions made by learned counsel for petitioner.

The petitioner attacks the legality and correctness of the orders impugned on two counts, viz., (a) that though he has been tenant of the premises long before creation of equitable mortgage, he was not made as party to the proceedings initiated under the provisions of SARFAESI Act and no notice was issued to him either by the bank or by the commissioner for eviction and hence he is entitled to continue in possession of the property mentioned in the registered lease deed which expires by 29.09.2025 (b) that the commission warrant entrusted on 10.05.2024 cannot be executed at this length of time, since could not be executed within the reasonable period.

In the decision relied on by the learned counsel for the petitioner in Mangalagiri Textile Mills Private Limited (supra 1), a coordinate bench of this Court held that if Chief Metropolitan Magistrate imposed a time-limit for taking over possession, such stipulated time has to be mandatorily adhered to and if it could not be done for whatever reason, the appropriate course of action is to re-approach the Chief Metropolitan Magistrate for extension of time. In the absence of any period of limitation, the authority has to exercise the power within a reasonable period. While observing so, taking over

Before going into merits of the matter, it is relevant here to - note that in Union Bank of India v. Satyawati Tondoti^r the Hon'ble Supreme Court has deplored action of High Courts in exercising writ juri iction ignoring availability of statutory remedies under the DRT Act and SARFAESI Act. They are extracted hereunder; "

It is a matter of serious concern that despite repeated pronouncements of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the Sarfaesi Act and exercise juri iction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection."

This Court, vide orders dated 11.07.2024, passed in Writ Petition No. 14411 of 2024, held that in the absence of exceptions enumerated in the decision of the Hon'ble Supreme Court in PHR Invent Educationai Society V. UCO Bani^, the petitioners should avail the alternate remedy in terms of SARFAESI Act and further taking note of the observations referred to supra in ^ (2010) 8 see 110 ^ (2024) 6 see 579

Therefore, availability of alternative efficacious statutory remedy provided under SARFAESI Act to question the proceedings initiated by respondent no.l under Section 14 of the Act, debars the petitioners from invoking writ juri iction.

In view of the above, it is needless to go into merits of the matter, since observations, if any, made may influence the mind of the Debt Recovery Tribunal while disposing of the proceedings, if any, initiated by the petitioner.

Therefore, the writ petition is dismissed. The status quo orders granted on 29.05.2025 shall be in force for a period of one (01) month from today so as to enable the petitioner to initiate appropriate proceedings before the Debts Recovery Tribunal. There shall be no order as to costs. Pending miscellaneous applications, if any, shall stand closed. U. SRIDEVI ASSISTANT REGISTRAR //// ff SECTION OFFICER To.