Petitioner claims to be a lessee in the property belonging to the 3rd respondent, against which proceedings are said to have initiated by the 1st respondent-Bank under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity “SARFAESI Act”). In pursuance of such proceedings, the rights created by the security interest was assigned in favour of the 2nd respondent, is the contention of the 1st respondent. It is the 2nd respondent who has now proceeded against the property by attachment under Section 13(4) of the SARFAESI Act under orders of the jurisdictional Chief Judicial Magistrate Court.
2. Despite notice to the 2nd respondent, by paper publication, the 2nd respondent has filed to appear in the present proceedings.
3. The petitioner's contention is that he is a lessee and he has obtained Exhibit P1 judgment from the Munsiff Court, wherein the Munsiff Court has decreed that the petitioner shall not WP(C).No.2377 of 2014 - 2 -
be evicted unless by due process of law. The 1st respondent herein is the 2nd defendant, in Exhibit P1 judgment. If the rights of the 1st respondent have been assigned to the 2nd respondent, necessarily the 2nd respondent also would be bound by Exhibit P1 judgment. But, however, it is to be noticed that the judgment only interdicts proceedings which are not in accordance with law and if a proceeding under the SARFAESI Act is initiated and continued, the petitioner herein cannot have protection under Exhibit P1 judgment.
4. It is also to be noticed that though the petitioner claims that he is a lessee in the property, by the specific averments of the petitioner in the plaint, as extracted by the learned Munsiff in Exhibit P1 judgment, the petitioner's claim in the suit was as a mortgagee of the property. Evidently the said mortgage was by an unregistered document and after the security interest created in favour of the Bank. In any event, if the petitioner has a claim of lease, then necessarily that would have to be agitated before the appropriate forum, as has been declared by the Hon'ble Supreme Court in Harshad Govardan Sondagar vs. International Assets Reconstruction Co. Ltd. [2014 (4) SCALE 484]. In such WP(C).No.2377 of 2014 - 3 -
circumstances, the writ petition is closed, however, leaving the remedies open to the petitioner to be agitated in accordance with the judgment of the Hon'ble Supreme Court afore-cited. Parties to suffer their respective costs.
Sd/- K.Vinod Chandran, Judge vku.
( true copy )