Dinesh Kumar Jaiswal Vs the State of West Bengal and… — Banking and Recovery | Calcutta HC (2025)

Dinesh Kumar Jaiswal Vs the State of West Bengal and… — Banking and Recovery | Calcutta HC (2025)

What the court decided

AI extract

Outcome

Liberty to the petitioner to approach the Tribunal for necessary reliefs, with a direction that the Tribunal shall endeavour to decide such application at the earliest, preferably before execution of the Section 14 SARFAESI order; supplementary affidavit taken on record; allegations deemed not admitted; certified copy to be supplied on application.

¶¶19 (para 10)

Issue for consideration

Whether the writ Court is the competent forum to adjudicate the petitioner's claim of pre-mortgage tenancy against the bank's possession obtained under Section 14 of the SARFAESI Act, or whether the petitioner ought to seek relief before the Tribunal (reliance placed by the bank on Section 17(4A)). +1 more

¶¶15 (para 7)

Court's answer

It was left open to the petitioner to approach the Tribunal (Debts Recovery Tribunal) for necessary reliefs regarding his tenancy claim; the writ Court made no adjudication on the tenancy itself.

¶¶17 (para 9)

Ratio / Principle

If the petitioner makes an application before the Tribunal, the Tribunal shall endeavour to decide it at the earliest, preferably prior to execution of the order under Section 14 of the SARFAESI Act.

¶¶17 (para 9)

Detailed headnote1 paragraphs

Writ petition (Calcutta High Court, Original Side) by a person claiming to be a pre-mortgage tenant of premises in respect of which the bank obtained a Section 14 SARFAESI Act possession order, allegedly suppressing the tenancy. The landlord admitted the tenancy and his Section 17 application was pending before the Debts Recovery Tribunal. The bank contended, relying on Section 17(4A), that the writ Court lacked jurisdiction over the tenancy issue. Without deciding the tenancy or the jurisdictional objection, the Court disposed of the writ petition, leaving the petitioner free to approach the Tribunal and directing the Tribunal to decide any such application at the earliest, preferably before execution of the Section 14 order. Allegations deemed not admitted.

OD-3 ORDER SHEET

WPO No.501 of 2025 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE

DINESH KUMAR JAISWAL

VS

THE STATE OF WEST BENGAL & ORS.

BEFORE THE HON’BLE JUSTICE AMRITA SINHA Date: 25th July, 2025.

Appearance : Mr. Rupak Ghosh, Adv. Ms. Sweta Gandhi, Adv.[VC] Mr. Anirban Roy, Adv. Mr. Sutanu Chakrabarti, Adv. Mr. Debjit Basu, Adv. ...for Petitioner. Mrs. Papiya Banerjee Bihani, Adv. ...for the State. Mr. Ajit Kumar Mishra, Adv. Mr. Suprovat Banerjee, Adv. Mr. Abhishek Dey, Adv. ...for Respondent no.6. Mr. Shashwat Nayak, Adv. Ms. Rituparna Sanyal, Adv. Ms. Antalina Guha, Adv. ...for the Respondent Bank.

Supplementary affidavit filed on behalf of the petitioner in Court today be taken on record.

The petitioner claims to be a tenant of a property in respect of which order has been passed under the provisions of the SARFAESI Act in favour of the bank for obtaining possession on account of non payment of the loan amount.

The sheet anchor of the petitioner’s submission is that the petitioner is a pre mortgage tenant. The bank obtained order under Section 14 of the SARFAESI Act completely suppressing the fact of tenancy.

Prayer has been made to set aside any step taken by the bank to oust the petitioner from the tenanted premises without taking due recourse of law.

2

The landlord admits the petitioner as pre mortgage tenant. The loan agreement has been produced before this Court wherein the fact of tenancy is mentioned.

Learned advocate representing the landlord submits that an application under Section 17 of the Act is pending consideration before the Debts Recovery Tribunal and an interlocutory application will be filed by the landlord before the Tribunal challenging the order passed by the Magistrate under Section 14 of the Act.

Learned advocate representing the bank submits that the writ Court does not have the jurisdiction to decide the issue. Provision of Section 17(4A) of the SARFAESI Act has been relied upon. It has been submitted that the petitioner ought to approach the Tribunal for relief but the writ Court is not the competent forum to adjudicate the issue of tenancy.

Upon hearing the submissions made on behalf of all the parties, it appears that, admittedly, an application under Section 17 of the SARFAESI Act at the instance of the landlord is sub-judice before the Tribunal. The petitioner claims to be a tenant under the said landlord. The petitioner claims to have documents to prove that he is a pre mortgage tenant.

It will be open for the petitioner to approach the Tribunal for necessary reliefs. In the event the petitioner makes an application, the Tribunal shall endeavour to decide the same at the earliest, preferably prior to the execution of the order under Section 14 of the SARFAESI Act.

3

The writ petition stands disposed of.

As the writ petition is disposed of without calling for any affidavit, the allegations made therein are deemed not to have been admitted by the respondents.

Urgent photostat certified copy of this order be supplied to the parties, if applied for, upon compliance of all legal formalities.

(AMRITA SINHA, J.)

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