The Court dismissed a writ petition filed by a tenant challenging a possession notice issued by a bank under the SARFAESI Act. The Court held the tenant was not an aggrieved person nor capable of questioning the bank's powers against the borrower-owner.
Petitioner to be deemed not an aggrieved person; Writ Petition dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.11.2018
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.3480 of 2006
A.Balan ... Petitioner
Vs
1. Branch Manager
Lord Krishna Bank
307, Sri Gokulam Tower
100 Feet Road 7 th Street
Gandhipuram
Coimbatore – 641 012.
2. M.Doraiswamy ... Respondents
Prayer: Writ Petitions filed under Article 226 of the Constitution of India, seeking for an issuance of Writ of Certiorarified Mandamus, calling for the records of the 1 st respondent, pertaining to the Possession Notice dated 27.01.2006 issued by the 1 st respondent published in Dinamalar, Coimbatore dated 28.01.2006, and quash the same and consequentially directing the 1 st respondent to redeliver possession of the three shops located in Door Nos.78/82, 78/85 and 78/86, Semi Basement, Cheran Towers, Govt. Arts College, Coimbatore.
For Petitioner : Mr.Srinath Sridevan
For Respondent : Mr.S.Silambanan,Senior Counsel for
R1 M/s.S.Silambanan Associates
R2 : Died
O R D E R
The notice issued by the respondent bank under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act) is under challenge in this writ petition. The petitioner is admittedly a tenant under the premises and the second respondent
is owner of the premises. The owner of the premises borrowed a loan from the first respondent bank and has not repaid the loan dues. As the second respondent was a chronic defaulter of the payment of loan dues, action was initiated against the second respondent/owner of the property by the first respondent by invoking the provisions of the SARFAESI Act.
2. A notice was issued for taking possession, and the said notice is under challenge by the writ petitioner in his capacity as a tenant. First of all, the writ petitioner cannot be construed as an aggrieved person at all. The writ petitioner is not a borrower of any loan from the first respondent. He is only a tenant. Therefore he cannot question the power of the bank for invoking the provisions of SARFAESI Act, more specifically, against the second respondent who was the borrower.
3. This apart, no writ petition can be entertained against the notice in a routine manner. In the present case, the second respondent has borrowed loan from the first respondent and the writ petitioner is only a tenant. The second respondent cannot litigate the matter through his tenant in order to save the property. The very idea of the writ petition is clear that this present writ petition was filed at the instance of the second respondent. The factual inference is to be made in respect of these circumstances.
4. In view of the fact that the writ petitioner being a tenant might not have any interest regarding the property or its title. The right of the tenant is certainly limited and therefore, the present writ petition filed challenging the notice issued by the first respondent bank, for the recovery of loan dues by attaching the property cannot be entertained at all.
Sd/Assistant Registrar(CO)
//True Copy//
Sub Assistant Registrar
gbi/pkn
To
1. Branch Manager Lord Krishna Bank 307, Sri Gokulam Tower 100 Feet Road 7 th Street Gandhipuram, Coimbatore – 641 012.
W.P.No.3480 of 2006
CSL/21.12.2018
3 issues framed by the court
Whether a tenant can challenge a possession notice issued under the SARFAESI Act by the bank against the owner.
Whether a tenant is an aggrieved person capable of questioning the bank's power to invoke SARFAESI Act provisions.
Whether a writ petition is maintainable when the borrower/owner might be attempting to litigate through their tenant.
1 provisions across 1 enactments
A.Balan
Branch Manager, Lord Krishna Bank
S.M.Subramaniam
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
