Petitioner, a lessee of a commercial property, challenged the Chief Judicial Magistrate's order enforcing possession under the SARFAESI Act. The Court held that the petitioner must have filed an application under Section 17 of the Act before the Debt Recovery Tribunal to examine leasehold rights.
Writ petition dismissed; no order as to costs.
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.
W.P.No.10849 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.04.2023
CORAM :
THE HON'BLE MR.T.RAJA, ACTING CHIEF JUSTICE AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.No.10849 of 2023
S.Shanmugapriya
.. Petitioner
Vs
1.M/s.Thausi Export, Prop. K.Thulasilingam, No.8/1A, Anna Street, Opp. Singamethai, Salem-636 001.
2.T.Hema Maheswari
3.K.Tulasingam
4.T.Poovazhagi
5.Canara Bank,
rep. by its Authorized Officer/Chief Manager Praveen Kumar, Salem Fort Main Branch, Salem District.
6.R.Sivaranjan
.. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India seeking issuance of a writ of certiorarified mandamus to call for the records of impugned order passed by the Chief Judicial Magistrate,
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W.P.No.10849 of 2023
Salem in Crl.M.P.No.1182 of 2022 dated 02.03.2023 and quash the same and consequently directing the 5th and 6th respondents not to take coercive steps under SARFAESI Act, 2002 to evict the petitioner from the property bearing New Door No,3/68, 2nd Agraharam, Salem Town, Salem District, without returning the petitioner's rental advance amount of Rs.25,00,000/-.
For the Petitioner : Mr.N.Vijaya Basker
ORDER
(Order of the court was made by the Hon'ble Acting Chief Justice)
S.Shanmugapriya, wife of Sathiyakumar, a young women entrepreneur, running a hotel under the name and style of “Sri Ranga Vilas Hotel, in the property owned by respondents 1 to 4/borrowers, which was leased out to her, has filed this writ petition seeking issuance of a writ of certiorarified mandamus to call for the records of impugned order passed by the Chief Judicial Magistrate, Salem, in Crl.M.P.No.1182 of 2022 dated 02.03.2023 and quash the same and consequently direct respondents 5 and 6 not to take coercive steps under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [for brevity, “ the Act ”] to evict the petitioner from the property bearing New Door No,3/68, 2nd Agraharam, Salem Town, Salem District,
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without returning the petitioner's rental advance amount of Rs.25,00,000/-.
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and handover the possession of the property in question to enable the sixth respondent, who is the auction purchaser, to take possession of the property in question.
“17. Application against measures to recover the secured debts.
(1) to (4) ... (4-A) Where--
(i) any person, in an application under subsection (1), claims any tenancy or leasehold
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rights upon the secured asset, the Debt Recovery Tribunal , after examining the facts of the case and evidence produced by the parties in relation to such claims shall, for the purposes of enforcement of security interest, have the jurisdiction to examine whether lease or tenancy,--
(d) is created after the issuance of notice of default and demand by the Bank under subsection (2) of section 13 of the Act; and
(ii) the Debt Recovery Tribunal is satisfied that tenancy right or leasehold rights claimed in secured asset falls under the sub-clause (a) or sub-clause (b) or sub-clause (c) or sub-clause (d) of clause (i), then notwithstanding anything to the contrary contained in any other law for the time being in force, the Debt Recovery Tribunal may pass such order as it deems fit in accordance with the provisions of this Act .”
[emphasis supplied]
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petitioner ought to have approached the Debts Recovery Tribunal seeking appropriate relief.
For the foregoing reasons, the writ petition is dismissed. There will be no order as to costs. Consequently, W.M.P.Nos.10770 and 10771 of 2023 are closed.
(T.R., ACJ.) (D.B.C., J.) 11.04.2023 Index : No Neutral Citation : No sasi
To:
The Authorized Officer/Chief Manager Canara Bank, Salem Fort Main Branch, Salem District.
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W.P.No.10849 of 2023
THE HON'BLE ACTING CHIEF JUSTICE AND D.BHARATHA CHAKRAVARTHY, J.
(sasi)
W.P.No.10849 of 2023
11.04.2023
____________ Page 8 of 8_
2 issues framed by the court
Whether a lessee claiming tenancy rights must approach the Debts Recovery Tribunal under Section 17 of the SARFAESI Act instead of filing a writ petition.
Whether the High Court has jurisdiction to entertain a writ petition challenging an order passed by the Chief Judicial Magistrate in proceedings under the SARFAESI Act when Section 17 provides a statu
2 provisions across 2 enactments
S.Shanmugapriya
M/s.Thausi Export, Prop. K.Thulasilingam
T.Hema Maheswari
K.Tulasingam
T.Poovazhagi
Canara Bank
T.RAJA
D.BHARATHA CHAKRAVARTHY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
