Whether bank can evict tenant using provisions of SARFAESI Act?

That issue has been considered in the various Judgments of this Court and the latest one is in "Vishal N. Kalsaria v. Bank of India and Ors." in Crl. Appeal No. 52 of 2016 decided on 20.01.2016, reported in MANU/SC/0061/2016 : (2016) 1 SCALE 172 and at paragraph 30, this Court has observed as under:

It is a settled position of law that once tenancy is created, a tenant can be evicted only after following the due process of law, as prescribed under the provisions of the Rent Control Act. A tenant cannot be arbitrarily evicted by using the provisions of the SARFAESI Act as that would amount to stultifying the statutory rights of protection given to the tenant.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 5610-5611 of 2011

Decided On: 17.02.2016

 Indian Bank Vs. Nippon Enterprises South and Ors.

Hon'ble Judges/Coram:

Kurian Joseph and Rohinton Fali Nariman, JJ.

Citation:(2016) 15 SCC 79

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When post mortgage lease agreements cannot be treated as valid leases as per SARFAESI Act?

  The post mortgage lease agreements that

       conferred tenancy rights on the petitioners in the instant

       cases, though created before the initiation of proceedings

       under Section 13 (2) of the SARFAESI Act, cannot be

       seen as valid leases on account of the fact that they do

       not conform to the conditions stipulated in Section 65A(2)

       of the Transfer of Property Act.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                            PRESENT:

               MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

               TUESDAY, THE 19TH DAY OF JANUARY 2016
                                   WP(C).No. 30016 of 2015 (B)
                                 
         P.M. KELUKUTTY,
           Vs
         YOUNG MEN'S CHRISTIAN ASSOCIATION,
             A.K.JAYASANKARAN NAMBIAR, J.
                       -------------------------------
               
              Dated this the 19th day of January, 2016
Citation:AIR 2016 kerala 135
                 

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How to decide issue of limitation in SARFAESI Act proceeding?

I must now turn to the contentions of the learned Senior

Counsel for the petitioners on the issue of limitation. As already noted,


it is the stand of the petitioners that the application under Section 14

of the SARFAESI Act was filed before the Chief Judicial Magistrate

only on 11.09.2013 and therefore, beyond a period of 3 years from the

date on which the 2nd respondent was aware of the resistance offered

by the petitioners to an attempted dispossession. The petitioners point

to their submissions in the writ petition filed by the 1st respondent as

also the S.A. filed by them before the Debts Recovery Tribunal to

contend that the 2nd respondent was aware, as early as in 2009, of

their objections in the matter. It is argued, therefore, that by virtue of

Article 137 of the Limitation Act, the Section 14 application ought to

have been filed within three years from 2009 and, since it was not, the

said application of the 2nd respondent could not have been

entertained by the learned Magistrate. Persuasive though the

argument may seem at first blush, I'm afraid it cannot be accepted.

Section 36 of the SARFAESI Act that deals with limitation reads as

follows:


           "36. Limitation.-No secured creditor shall be entitled to
           take all or any of the measures under sub-section (4) of
           section 13, unless his claim in respect of the financial
           asset is made within the period of limitation prescribed
           under the Limitation Act, 1963 (36 of 1963).





      20. It will be apparent from a reading of the above provision

that once a claim in respect of a financial asset is made within the

period of limitation prescribed under the Limitation Act, 1963, then

the measure adopted by the secured creditor under Section 13 (4) is

also deemed to be within limitation. This view has been endorsed by a

Division Bench of this Court in the judgment dated 22.08.2012 in

W.A.No.899 of 2011 [E.P.Sreedharan v. Manager, Indian Bank

and Ors.].     A Special Leave Petition preferred against the said

judgment was dismissed by the Supreme Court on 17.02.2014

[S.L.P.Nos.10904-10905/2013]. Further, the decision of this Court in

Sami v. Bank of India - [2011 (3) KLT 554] is authority for the

proposition that the action of a financial institution in approaching the

Magistrate under Section 14 of the SARFAESI Act would itself

constitute a measure under Section 13 (4) of the Act. On the facts of

the instant cases, therefore, since it is not in dispute that the notice

under Section 13 (2) was issued within the period of limitation under

the Limitation Act, 1963, the subsequent measures taken by the 2nd

respondent, including approaching the Magistrate under Section 14 of

the SARFAESI Act, have to be seen as within the period of limitation


prescribed under the SARFAESI Act.
 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                            PRESENT:

               THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

               TUESDAY, THE 19TH DAY OF JANUARY 2016
                                   WP(C).No. 30016 of 2015 (B)
                                    
         P.M. KELUKUTTY,
           Vs
         YOUNG MEN'S CHRISTIAN ASSOCIATION,
             A.K.JAYASANKARAN NAMBIAR, J.
                       -------------------------------
                  
              Dated this the 19th day of January, 2016
Citation:AIR 2016 kerala 135
                   

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Whether security interest created under SARFAESI Act in respect of agricultural land can be enforced?

Having held hereinabove that security interest created was in agricultural land, we have no hesitation to hold that all the proceedings initiated under the SARFAESI Act are nullity, as the security interest in agricultural land cannot be enforced inasmuch as the same is exempted under the provisions of Section 31(i)
IN THE HIGH COURT OF JUDICATURE AT MADRAS


DATE OF DECISION: 05.04.2016

CORAM:

THE HON'BLE MR.JUSTICE SATISH K. AGNIHOTRI
AND
THE HON'BLE MR.JUSTICE M.VENUGOPAL

W.P. Nos.26633 and 32208 of 2014 and M.P. Nos.1 & 1 of 2014

W.P. No.26633 of 2014:

A. Akthar Hussain Petitioner
Vs.
K. Pappireddiyar

Citation:AIR 2016 Madras 114

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Whether tenants are entitled to get protection from eviction under SARFAESI Act on basis of unregistered lease deed?

On the other hand, learned counsel for the bank laid
emphasis on paragraph No.36 in the same decision [Harshad  
Govardhan Sondagars Case (Supra 1)] to substantiate the stand of
the bank that the tenants are entitled to possession of the secured asset
for any term exceeding one year from the date of lease made in their
favour, in case, they are able to prove that the leases are through
registered instruments.  The Honble Supreme Court while adverting
to the purport of Section 107 of TP Act in the context of the claim of
the appellants therein that they were entitled to possession of a
secured asset for any term exceeding one year from the date of lease
made in their favour, they will have to produce proof of execution of
registered instrument in their favour by the lessor, holding, thus:

   36. We may now consider the contention of the
respondents that some of the appellants have not
produced any document to prove that they are bona 
fide lessees of the secured assets.  We find that in the
cases before us, the appellants have relied on the
written instruments or rent receipts issued by the
landlord to the tenant.  Section 107 of the Transfer of
Property Act provides that a lease of immoveable
property from year to year, or for any term exceeding
one year or reserving a yearly rent, can be made
only by a registered instrument and all other leases
of immoveable property may be made either by a 
registered instrument or by oral agreement
accompanied by delivery of possession.  Hence, if
any of the appellants claim that they are entitled to
possession of a secured asset for any term exceeding
one year from the date of the lease made in his
favour, he has to produce proof of execution of a
registered instrument in his favour by the lessor.
Where he does not produce proof of execution of a
registered instrument in his favour and instead relies
on an unregistered instrument or oral agreement
accompanied by delivery of possession, the Chief
Metropolitan Magistrate or the District Magistrate, as
the case may be, will have to come to the conclusion
that he is not entitled to the possession of the secured
asset for more than a year from the date of the
instrument or from the date of delivery of possession
in his favour by the landlord.


     27.  Turning to the leases filed by the tenants in W.P. No.29825
of 2015, none of them could produce registered lease deeds in their
favour executed by the guarantor, and, therefore, the said leases have
to be construed as invalid instruments and no rights would flow to
resist the order passed by the learned Chief Metropolitan Magistrate
under Section 14 of the Act and the consequential notices issued by
the Advocate-commissioners dated 10.10.2015 requiring them to 
vacate secured asset No.1.  The tenant in W.P. (S.R.) No.215389 of
2015 though filed registered lease deed, dated 05.11.2002, concerning
Shop Nos.11 and 12 respectively, but they got determined by the
expiry of ten years period mentioned therein and the subsequent lease
on renewal is only by way of an agreement and no registered lease
deed is forthcoming as required by condition No.16 mentioned therein
referred to herein before.  Therefore, we have no hesitation in holding
that the tenants have no right to question either the order passed under
Section 14 of the Act or the notice issued by the Advocate-
Commissioner, dated 10.10.2015.  
HYDERABAD HIGH COURT
HONBLE SRI JUSTICE R. SUBHASH REDDY AND HONBLE SRI JUSTICE A. SHANKAR                 

WRIT PETITION Nos.34750 OF 2015     

Dated:05-01-2016 

Smt. P. Kiranmai.. Vs The Bank of Maharashtra, Bank Street, Koti, Hyderabad & others 
Citation:AIR 2016 hyd 137

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What is meaning of "any person" used in S 17 of SARFAESI Act 2002 ?

The expression ‘any person’ used in Section 17 is of
wide import and takes within its fold not only the borrower
but also the guarantor or any other person who may be
affected by action taken under Section 13(4) of the
Securitisation Act. Reference may be made to the Judgment
of this Court in Satyavati Tondon’s case (supra).
18. Therefore, the expression ‘any person’ referred to in
Section 17 would take in the plaintiffs in the suit as well.
Therefore, irrespective of the question whether the civil suit
is maintainable or not, under the Securitisation Act itself, a
remedy is provided to such persons so that they can invoke
the provisions of Section 17 of the Securitisation Act, in case
the bank (secured creditor) adopt any measure including the
sale of the secured assets, on which the plaintiffs claim

interest. 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9771 OF 2013
(Arising out of Special Leave Petition (Civil) No.18 of 2011)
Jagdish Singh …….. Appellant
Versus
Heeralal and others ……. Respondents
Citation: 2014 AIR 371 SC 

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How to determine whether particular dispute falls within jurisdiction of civil court or debt recovery tribunal?

 In view of above, the sum and substance of the decision is
that :
(i) The jurisdiction of the Civil Court to entertain,
try and decide any suit or proceeding in respect of
the property, which is the subject matter of security
interest created in favour of a secured creditor, is
barred only to the extent of the matters, which the
Debts Recovery Tribunal or the Appellate Tribunal is
empowered by or under the Act to determine.
(Para 18)
(ii) The jurisdiction of the Civil Court in respect of
the matters, which do not fall within the jurisdiction
of the Debts Recovery Tribunal or its Appellate

Tribunal under Sections 17 and 18 of the said Act, is
not ousted or barred under the provision of
Section 34 of the said Act and the Civil Court
continues to exercise such jurisdiction. (Para 18)
(iii) In order to decide the question as to whether
the jurisdiction of the Civil Court under Section 9 of
the Civil Procedure Code is ousted or not, the real
test would be to find out whether the Debts
Recovery Tribunal under Section 17, is empowered
to hold an enquiry on a particular question and to
grant relief in respect thereof. The extent of
jurisdiction of the Debts Recovery Tribunal under
Section 17 shall decide the extent of exclusion of
jurisdiction of Civil Court to decide the dispute in
respect of the suit property. (Para 18)
(iv) The jurisdiction of the Civil Court to entertain,
try and decide a civil suit challenging the action of
the defendant no.3-Bank to take possession of the
suit property and to sell the same to recover its
debts by enforcing security interest in the suit
property in accordance with the provisions of
Section 13 of the said Act, is completely barred by
Section 34 of the said Act. (Paras 19, 20 and 23)
(v) The jurisdiction of the Civil Court to entertain,

try and decide the suit for partition and separate
possession of the property in respect of which
security interest is created in favour of secured
creditor, is not barred under Section 34 of the Act.
(Para 21)
(vi) The jurisdiction of Civil Court to entertain, try
and decide the Civil Suit claiming relief of
declaration that the action of the secured creditor
to take possession of the property and to sell the
same, is fraudulent and void, as has been held by
the Apex Court in Mardia Chemical's case, is not
barred by Section 34 of the said Act. (Para 23)
(vii) The jurisdiction of the Civil Court to entertain,
try and decide Civil Suit simpliciter for permanent
injunction to permanently restrain the defendant
No.3-Bank from taking possession of the suit
property and selling the same or to create any
third-party interest without any substantive relief of
declaration that the creation of security interest in
favour of a secured creditor was fraudulent and
void ab initio, is completely barred under the
second part of Section 34 and hence
consequentially, the jurisdiction of Civil Court to
pass an order of temporary injunction in such suit,
restraining the defendant No.3-Bank from alienating

the suit property or creating any third-party interest
therein, is also barred. (Para 25)
(viii) Once it is held that the jurisdiction of Civil
Court is not ousted under Section 34, to grant
substantive relief of declaration that creation of
security interest in favour of a secured creditor, was
fraudulent and void, its jurisdiction to grant
consequential relief of permanent injunction and
the relief of temporary injunction in such suit, is not
ousted. (Para 26)
(ix) Once it is held that the jurisdiction of the Civil
Court to entertain, try and decide the civil suit for
partition and separate possession of the suit
property is not barred by Section 34 of the said Act,
then it follows that the jurisdiction of the Civil Court
to grant permanent and temporary injunction
restraining the defendants from dealing with the
suit property or creating third party interest therein
is also not ousted by Section 34 of the said Act.
(x) It is open for the plaintiffs or any other person
having any right, title, share or interest in the suit
property to lodge their/his objection under
Section 17 of the said Act before the Debts
Recovery Tribunal, which is competent to deal with

it in accordance with law and to pass such orders as
are necessary to protect the interest of the
plaintiffs/such person vis-a-vis the suit property and
also to balance the equities. (Para 30)
(xi) The question as to what shall be the effect of a
decree passed in the suit for partition and separate
possession of the suit property or for declaration
that the action of secured creditor is fraudulent and
void ab initio by the Civil Court, on the enforcement
of security interest by the defendant No.3-Bank, i.e.
the secured creditor, can be determined only after
culmination of both the proceedings and not before.
(Para 30)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
 NAGPUR BENCH, NAGPUR
Civil Revision Application No.33 of 2010
And
Appeal against Order No.38 of 2010
Civil Revision Application No.33 of 2010
State Bank of India,

Versus
Shri Sagar s/o Pramod Deshmukh,

CORAM : R.K. Deshpande, J.

Date of Pronouncing the Judgment : 11-2-2011
Citation:2011(3) MHLJ71

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When jurisdiction of civil court is barred if dispute is between mortgager and secured creditor?

 We notice, at this juncture, Respondent Nos.1 to 5 filed
Civil Suit No.16A/07 in the Court of the District Judge,
Barwani against the appellant, as well as the bank and
Respondent Nos.6 to 9, alleging that the family members of
Respondent Nos.1 to 9 herein being sons/grandsons of
deceased Premji, constituted a HUF engaged in agriculture.
It was stated that the said properties were purchased in the
names of Respondent Nos.7 to 9 out of the funds of HUF and
house Nos.41/1, 42/3 and 42/2 were also purchased in the
names of Respondent Nos.6 to 8 respectively, out of the
funds of HUF and, therefore, the properties of HUF. But, the
facts would clearly indicate that the properties referred to
above were purchased by Respondent Nos.6 to 8 in their
individual names, long after the death of Premji and that too
by registered sale deeds and no claim was ever made at any
stage by any member of the HUF that the suit land was a HUF
property and not the individual property. Respondent Nos.7
to 9 had purchased those lands vide sale deed dated
14.09.1999 and the 6th respondent had also purchased in his
individual name House No.42/1 on 31.03.1998 vide
registered sale deed. Similarly, Respondent No.7 had also
purchased House No.42/3 in his individual name. No claim,
whatsoever, was made at any stage by any member of the
family that those properties and buildings were HUF
properties and not the individual properties of Respondent
Nos.6 to 8 herein.
 We are of the view that the civil court jurisdiction is
completely barred, so far as the “measure” taken by a
secured creditor under sub-section (4) of Section 13 of the
Securitisation Act, against which an aggrieved person has a
right of appeal before the DRT or the Appellate Tribunal. to
determine as to whether there has been any illegality in the
“measures” taken. The bank, in the instant case, has
proceeded only against secured assets of the borrowers on
which no rights of Respondent Nos.6 to 8 have been
crystalised, before creating security interest in respect of the
secured assets. In such circumstances, we are of the view
that the High Court was in error in holding that only civil
court has jurisdiction to examine as to whether the
“measures” taken by the secured creditor under sub-section
(4) of Section 13 of the Securitisation Act were legal or not.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9771 OF 2013
(Arising out of Special Leave Petition (Civil) No.18 of 2011)
Jagdish Singh …….. Appellant
Versus
Heeralal and others ……. Respondents
Citation: 2014 AIR 371 SC 

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Whether tenants can obtain injunction from court to restrain secured creditor from taking possession of property?

A further question of law raised in these appeals is
whether the tenants have remedies under the
concerned tenancy law. In the State of Maharashtra,
the Maharashtra Rent Control Act, 1999 is in force
and this Act applies to premises let for the purposes of
residence, education, business, trade or storage
specified in Schedule I and Schedule II of the Act as
well as houses let out in areas to which the Bombay
Rents, Hotel and Lodging House Rates Control Act,
1947 applied before the commencement of the Act. 6
Section 33 of the Maharashtra Rent Control Act is
titled ‘Jurisdiction of courts’ and it provides that the
courts named therein ‘shall have jurisdiction to
entertain and try any suit or proceeding between a
landlord and a tenant relating to the recovery of rent
or possession of any premises and to decide any
application made under the Act and the applications
which are to be decided by the State Government or
an officer authorised by it or the Competent Authority.
The question of law that we have to consider is
whether the appellants as tenants of premises in the
State of Maharashtra including Mumbai will have any
remedy to move these courts having jurisdiction under
Section 33 of the Maharashtra Rent Control Act and
obtain the relief of injunction against the secured
creditor taking possession of the secured asset from
the appellants. The answer to this question is in
Section 34 of the SARFAESI Act, which is extracted
hereinbelow:
“34. Civil court not to have jurisdiction.- No
civil court shall have jurisdiction to entertain
any suit or proceeding in respect of any
matter which a Debts Recovery Tribunal or 6
the Appellate Tribunal is empowered by or
under this Act to determine and no injunction
shall be granted by any court or other
authority in respect of any action taken or to
be taken in pursuance of any power conferred
by or under this Act or under the Recovery of
Debts Due to Banks and Financial
Institutions Act, 1993 (51 of 1993).
A reading of the second limb of Section 34 of the SARFAESI
Act would show that no injunction shall be granted by any
court or other authority in respect of any action taken or to
be taken in pursuance of any power conferred by or under
the Act. Thus, when action is sought to be taken by the
secured creditor under Section 13 of the SARFAESI Act or
by the Chief Metropolitan Magistrate or the District
Magistrate under Section 14 of the SARFAESI Act, the Court
or the authority mentioned in Section 33 of the
Maharashtra Rent Control Act cannot grant the injunction
to prevent such action by the secured creditor or by the
Chief Metropolitan Magistrate or the District Magistrate.
Even otherwise, Section 33 of the Maharashtra Rent Control
Act vests jurisdiction in the courts named therein to decide
disputes between the landlord and the tenant and not 
disputes between the secured creditor and the tenant under
landlord who is a borrower of the secured assets.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 736 OF 2014
(Arising out of S.L.P. (Crl.) No.1666 of 2012)

Harshad Govardhan Sondagar Vs International Assets Reconstruction Co.Ltd. 

Dated:April 03, 2014. 
Citation:( 2014 ) 6 SCC 1

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Whether injunction suit filed by plaintiff before civil court is barred by S 34 of SARFAESI Act?

The   principle   that   emerges   from   the   in­depth
discussion   is that, if remedy is made available statutorily, it

must   be   exhausted   first   before   the   Civil   Court   of   ordinary
jurisdiction can be approached upon afore­emphasized grounds.
Conclusion   is   that   when   the   remedy   is   specifically   made
available and specific remedy of injunction is carved out of the
ordinary jurisdiction of the Civil Court under the special statute,
such  statutory remedy has to be exhausted first by the parties in
accordance with  special statutory provisions  and then only the
aggrieved   party   may   approach   the   Civil   Court   if   there   was
violation of fundamental judicial procedure or if process of law
was abused by the statutory forum/Tribunal or that it acted in
violation   of   the   provisions   of   the   Statute.   This   being   the
position, if, in view of averment in the plaint, the plaintiffs have
statutory remedy, the plaintiffs must first approach the statutory
forum   for   an   order   of   injunctive   reliefs   available   under   the
Statute against the respondents including the Bank concerned.
Scheme and Object/purport of the SARFAESI Act leads us to the
above conclusion.   Hence, no interference is required in the
impugned judgments and orders in the facts and circumstances
of the case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Second Appeal No.159 of 2013
 Smt. Savita Bhagwantrao Patil,
                   .....       Appellants
                                                                            (Ori.Plaintiffs)
         ::  VERSUS ::
Shyam Pukhraj Asopa,
        .....       Respondents
Ori.Defendants)

CORAM : A. P. BHANGALE, J.
DATE           : APRIL  24, 2014.
Citation:2014(4) Bom C R 825

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Whether Chief Judicial Magistrate in non-metropolitan area can entertain an application U/S 14 of SARFAESI Act 2002?

 According to us, there is no casus omissus. We are not reading something into the provision which the Legislature never intended to nor are we trying to interpret the provision so as to defeat the intention of the Legislature. We are only resorting to a purposive interpretation to arrive at the intention of the Legislature depending on the objects for which the enactment was made. As stated earlier, the intention of the Legislature was to achieve speedier recovery of the dues without the intervention of Tribunals or the Courts and for quick resolution of disputes arising out of the action taken for recovery of such dues. Ergo, by conferring jurisdiction on an authority to exercise the power of assistance, which, his counterpart in a Metropolitan area, is exercising, the Court is not interpreting the provision in a different manner so as to negate the intent of the Legislature. Giving jurisdiction to Chief Judicial Magistrates in non-metropolitan area, who are exercising the same functions as that of Chief Metropolitan Magistrates in metropolitan areas, would not in anyway abrogate or contradict the words used in Section 14 of the SARFAESI Act, thereby causing prejudice to any of the parties. On the other hand, it would hasten the process of rendering assistance to the secured creditors to recover possession of their assets thereby achieving the object for which the SARFAESI Act has been introduced.

39. For the aforesaid reasons, we answer the reference holding that the nomenclature Chief Metropolitan Magistrate referred to in Section 14 is inclusive of Chief Judicial Magistrate in non-metropolitan area and as such the Chief Judicial Magistrate in a non-metropolitan area gets jurisdiction to entertain an application under Section 14 of the SARFAESI Act, 2002.

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH

Writ Petition Nos. 17589 and 17625 of 2014

Decided On: 27.11.2015

Appellants: T.R. Jewellery and Ors. 
Vs.
Respondent: State Bank of India and Ors.

Hon'ble Judges/Coram:D.B. Bhosale, Actg. C.J., C. Praveen Kumar and M.S.K. Jaiswal, JJ.

Citation:AIR 2016 Hyd125

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Whether bank can retain one property against any other loan taken by mortgagee?

 On perusal of the documents on record, this Court is of the considered opinion that both the loans are separate and distinct. Different properties have been mortgaged under the loan. The property in question was mortgaged under the present loan, which has admittedly been repaid. It is admitted fact that the property was not mortgaged in another loan. Although, the other loan remains to be payable, but different properties were mortgaged in that loan. Admittedly, one of the properties which was mortgaged in this loan has been released by the respondent-bank itself. This property does not fall within the definition of 'secured asset' as defined under Section 2(zc) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, which means 'the property on which the secured interest is created'.

 In view of above, the writ petition succeeds. A mandamus is issued directing the respondent-bank to return the title deeds and other documents relating to Plot No. A-7, Industrial Estate, Kashipur, which are in possession of respondent No. 1, under mortgage for loan bearing No. 0850500000571, to the petitioners.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. 2524 of 2015 (M/S)

Decided On: 01.03.2016

Appellants: Meetu Jain and Ors.
Vs.
Respondent: Bank of Baroda and Ors.

Hon'ble Judges/Coram:Umesh Chandra Dhyani, J.

Citation:AIR 2016 Uttarakhand 60

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Whether ‘SARFAESI Act'will override provisions of Rent Control Act?

 In view of the above legal position, if we accept
the legal submissions made on behalf of the Banks to
hold that the provisions of SARFAESI Act override the
provisions of the various Rent Control Acts to allow a
Bank to evict a tenant from the tenanted premise, which
has become a secured asset of the Bank after the
default on loan by the landlord and dispense with the
procedure laid down under the provisions of the various
Rent Control Acts and the law laid down by this Court
in catena of cases, then the legislative powers of the
state legislatures are denuded which would amount to
subverting the law enacted by the State Legislature.
Surely, such a situation was not contemplated by the
Parliament while enacting the SARFAESI Act and
therefore the interpretation sought to be made by the
learned counsel appearing on behalf of the Banks cannot
be accepted by this Court as the same is wholly
untenable in law.
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL/CIVIL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 52 OF 2016
(Arising out of SLP (Crl.) No.8060 of 2015)
VISHAL N. KALSARIA 
Vs.
BANK OF INDIA & ORS. 
Dated;January 20,2016
Citation;(2016) 3 SCC 762,2016 ALLMR(CRI)1322 SC,2016 Bom Rent Cases 76

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Whether complainant can be substituted in complaint for dishonour of cheque?

Looking at the purpose of the SARFAESI Act and reading of
section 5(4) of the Act in the light of section 35 of the said Act, it

would not be improper to hold that respondent No.1 steps slowly and
completely in the shoes of respondent No.2 and once respondent No.2
is no longer interested in the loan amount, respondent No.1 can be
substituted in their place with regard to any proceedings that arise out
of such financial assets. The view of the learned Addl. Sessions Judge,
New Delhi that the LR‟s of the complainant can pursue the complaint
on death of the complainant despite the fact that the LR‟s of the
complainant are not the payee or holder in due course. Likewise, the
respondent No.1 stands on a much better footing having an interest in
the loan amount on which the said cheque was issued and should be
allowed to substitute in place of respondent No.2, finds favour with
this Court. Otherwise also section 35 of the SARFAESI Act gives an
overriding effect over other enactments.
In the light of the aforesaid decision, I do not find any legality or
infirmity in the impugned order passed by learned Sessions Judge,
Dwarka courts, New Delhi.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
 CRL. M.C. No.651/2012

Date of Decision: 4th July, 2014
MAN SINGH TUSARIA

versus
J M FINANCIAL ASSET RECONSTRUCTION CO.PVT. LTD.
& ANR

CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH
Citation; 2015ALLMR(CRI)JOURNAL 120

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When SARFAESI Act shall prevail over Consumer Protection Act?

The SARFAESI Act is a later Act than the Consumer

Protection Act. The SARFAESI Act is a special enactment

and the Consumer Protection Act is a general enactment.

It is settled law that the provisions of a special enactment

would override the provisions of a general enactment. The

SARFAESI Act provides for specific remedies to aggrieved

persons for challenging proceedings under the said Act.

Therefore if it is to be held that CDRF has also jurisdiction

to entertain challenge against proceedings under the

SARFAESI Act, that would be hit by Section 34 in so far as

that would be inconsistent with the provisions of the

SARFAESI Act.

Kerala High Court

Punjab National Bank vs The Consumer Disputes
 Redressal ... on 29 July, 2011

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Tenancy Rights’ and action under SARFAESI Act, 2002

Banks used to take advantage of the provisions of SARFAESI Act, 2002 earlier in taking possession of the ‘secured asset’ even when the tenant was in possession of the property. Absolutely, there is no difficulty in taking the possession of the ‘secured asset’ using the protection and assistance under Section 14 of the Act if the property was actually in possession of the borrower or the guarantor. Courts were looking into the issue of rights of tenants and the bona fides as the owner of the property can play with the Bank with fictitious arrangements.  Any person aggrieved, including a Tenant, can approach the Debt Recovery Tribunal under section 17 of the Act. When a tenant approaches the Court or the Tribunal seeking protection of his rights and questioning the action being taken by the Bank using Section 14 of SARFAESI Act, 2002, the Court or the Tribunal used to look into or emphasize as to:

(a). Whether there are bona fides in the contention of the tenant?

(b). If Tenant relies on any agreement with the landlord, the date of the agreement or the date from when the Tenant was in possession of the property.

(c). The knowledge of the Bank in respect of tenancy while sanctioning the loan.

(c). Whether the agreement between the tenant or the landlord registered and legal?

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Importance of pleading in civil suit filed relating to SARFAESI Act

It is not very difficult for a seasoned litigant or an intelligent lawyer to draft the plaint in such a manner as to make a secured asset, come within anyone of the above 4 categories, by a clever drafting of the plaint, thereby creating an illusion of fraud, collusion, misrepresentation and the like. Today, with the advancement of technology, the creation of an illusion and the creation of a virtual world are both possible. The moment the civil suit is taken on file, the proceedings before the Debts Recovery Tribunal or under the SARFAESI Act, 2002, gets slowed down. This results in two consequences viz., (i) out of frustration, the banks agree for one time settlements or (ii) third party rights get created by taking advantage of the situation. Therefore, the Courts have a greater responsibility to scan the pleadings and see if the allegations of fraud and collusion made in the plaint are actually a product of fraud and collusion between the borrowers and those making such claims.

Madras High Court

Punjab National Bank vs Mrs.J.Samsath Beevi 

on 2 March, 2010

DATED: 02-03-2010

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