IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOS.31101-31103/2019 (GM-RES) BETWEEN:
1. RAGHUCHANDRA HEGDE, S/O LATE ADHIRAJA, AGED ABOUT 70 YEARS, R/AT NO.198, 3RD FLOOR, 16TH CROSS, RAMESH NAGAR, BANGALORE-560 037, NOT CLAIMING UNDER SENIOR CITIZEN 2. PRAVEEN B. V., S/O B. K. VEERATHIMMAIAH, AGED ABOUT 42 YEARS, R/AT NO.198, 2ND FLOOR, 16TH CROSS, RAMESH NAGAR, BANGALORE-560 037.
3. SRI RAJENDRA B BASME, S/O BASAVANTHA BASME, AGED ABOUT 51 YEARS, R/AT NO.198, GROUND FLOOR, 16TH CROSS, RAMESH NAGAR, BANGALORE-560 037. ... PETITIONERS (By Sri VINOD PRASAD, ADV.) AND:
1. THE MYSORE SILK CLOTH MERCHANTS CO OPERATIVE BANK LTD NO.6, HOSPITAL ROAD, BANGALORE-560 063, BY ITS AUTHORIZED OFFICER.
2. SRI LOKESH T., S/O LATE H. THIMMEGOWDA, AGED ABOUT 45 YEARS, R/AT NO.198, 1ST FLOOR, 16TH CROSS, RAMESH NAGAR BANGALORE-560 037. ... RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT R-
1 NOT TO RESORT TO FORCIBLE EVICTION OF THE PETITIONERS, FROM 3RD , 2ND AND GROUND FLOOR OF THE PREMISES BEARING NO.198, 16TH CROSS, RAMESH NAGAR, BANGALORE-560 037, UNDER THE GARB OF "TAKING NECESSARY STEPS TO RECOVER THE OUTSTANDING DUES, UNDER THE PROVISIONS OF SARFAESI ACT, WITHOUT DUE PROCESS OF LAW, ON THE STRENGTH OF THE ORDER PASSED BY ACMM, MAYO-HALL IN CRL. MISC.NO.50092/2019, AS STATED IN NOTICE DATED 11.07.2019, SIGNED BY AUTHORIZED OFFICER OF R-1 BANK, VIDE ANNEXURE-R TO THE WRIT PETITION AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Sri Vinod Prasad, learned counsel for the petitioners.
Taking into account the order which this Court proposes to pass, it is not necessary to issue notice to the respondents.
2. Heard on the question of admission.
3. In these petitions under Articles 226 & 227 of the Constitution of India, petitioners have assailed the validity of the notice dated 11.07.2019 issued by the Authorised Officer of respondent No.1 – Bank, by which petitioners have been asked to hand over vacant possession of the property which is in their occupation as tenant thereof.
4. The facts giving rise to filing of the petition briefly stated are that the landlord of the petitioners had taken loan from respondent No.1 – Bank on 14.08.2015. Thereafter, proceedings under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘Act’) were initiated on 01.05.2018. It appears that petitioner No.1 had entered into lease agreement for a period of three years i.e., from 04.04.2013 to 03.04.2016. Similarly, petitioner Nos.2 and 3 have entered into lease agreement with their landlord/respondent No.2 on 12.08.2016 and 01.04.2017 respectively for a period of three years. Thus, it is evident that the period of lease in respect of petitioner No.1 has already expired, whereas petitioners 2 and 3 have entered into lease agreement with respondent No.2 after he had taken the loan. Admittedly, lease agreements are not registered. Respondent No.1 – Bank approached the Chief Metropolitan Magistrate under Section 14 of the Act, whereupon an order was passed under Section 14 of the Act, in pursuance of which, symbolic possession was taken. Thereafter, respondent No.1 – Bank has issued impugned notice dated 11.07.2019 to the petitioners, by which petitioners had been asked to hand over vacant possession of the property in question to respondent No.1 – Bank.
5. In support of his case, learned counsel for petitioners has placed reliance on the decision of the Supreme Court in the case of ‘HARSHAD GOVARDAN SONDAGAR Vs. INTERNATIONAL ASSETS RECONSTRUCTION COMPANY LIMITED & OTHERS’, (2014) 6 SCC 1.
6. I have considered the submission made by learned counsel for the petitioners and perused the records. As per Section 111 of the Transfer of Property Act, it is evident that the lease may be determined by efflux of time limited thereby. Thus, the lease of petitioner No.1 has already come to an end on account of efflux of time. In HARSHAD’s case (supra), it has been held that as per Section 107 of the Transfer of Property Act, if the lessee wants to retain the possession beyond the period of one year, then he has to produce proper registered lease deed to the secured creditor or to the Chief Metropolitan Magistrate.
7. In the instant case, admittedly lease deeds are not registered. Therefore, petitioners have not complied with the mandate contained in Section 107 of the Transfer of Property Act.
8. In view of the decision of this Court in the order dated 30.01.2019 passed in W.P.No.6594/2018 and for the reasons assigned therein, the remedy available for the petitioners is to file an application under Section 17(4A) of the Act.
9. Since petitioners have alternative efficacious remedy to file application under Section 17(4A) of the Act, they are at liberty to take recourse to the remedy provided to them under the Act. It is needless to state that in case petitioners file such an application, the Debts Recovery Tribunal shall dealt with the same in accordance with law without being influenced by any of the observations contained in this order.
10. It is made clear that this Court has not expressed any opinion on the merits of the case.
With the aforesaid liberty, writ petitions are disposed of.
Sd/- JUDGE PKS