Tenants must be included in eviction proceedings under the SARFAESI Act; lacking notice renders eviction efforts arbitrary, yet alternative statutory remedies limit the High Court's jurisdiction.

ORDER :

Ravi Cheemalapati, J.

The petitioner, claiming to be the tenant of the premises, challenges the order dated 10.05.2024 passed in Crl.M.P.No.27 of 2024 by the learned Chief Judicial Magistrate-cum-Principal Assistant Sessions Judge, Nellore, under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, ‘the SARFAESI Act’) whereby and whereunder a warrant of commission was issued for taking over physical possession of the subject premises.

2. The contents of the writ petition, in brief, are that the petitioner is a tenant of the subject premises since 2011 as is evidenced by GST Registration Certificate and owners of the said premises executed a registered lease deed in his favour on 26.12.2023 for a period of two years, which expires on 29.09.2025. That when his owners tried to evict him, he filed O.S.No.33 of 2024 on the file of learned Principal Junior Civil Judge, Kovur and the same was ended in compromise before Lok Adalat bench, Kovur and an award was passed on 16.03.2024 as per which the petitioner is entitled to continue in possession of the property till expiry of lease on 29.09.2025.

It is further stated in the writ petition that owners of the subject property mortgaged the said property to respondent no.1-Bank on 20.06.2016 and they became defaulters, respondent no.1 initiated SARFAESI Act proceedings for recovery of loan amount and vide orders dated 10.05.2024 passed in Crl.M.P.No.27 of 2024, an Advocate Commissioner was appointed. That owners of the property filed Writ Petition vide W.P.No.12155 of 2024 and this Court granted stay of all further proceedings and later the said writ petition was disposed of on 28.04.2025 keeping in force the interim orders granted till 27.05.2025 on which date the Securitization Application No.250 of 2022 filed by petitioner in the said writ petition stood posted to.

It is further stated in the writ petition that a day before filing the writ petition, officials of the bank came to the premises, showed him the commission warrant dated 10.05.2024 and directed him to vacate the subject premises. That though the petitioner was tenant of the premises since 2011 i.e., much prior to mortgaging the property to the bank, he was not made a party to the application filed for appoint of Advocate Commissioner for recovering possession of the property and no notice was issued by the bank or by Advocate commissioner for eviction. That the respondents cannot evict the petitioner from the subject premises without following the procedure under the guise of SARFAESI Act. That though the Advocate commissioner was appointed on 10.05.2024, till now the warrant was not executed and therefore, the Advocate commissioner now cannot evict the petitioner under the guise of the warrant dated 10.05.2024. Therefore, the action of the respondents in trying to evict the petitioner from the premises in pursuance of commission warrant dated 10.05.2024 is arbitrary and illegal.

3. Heard Sri V.Sai Kumar, learned counsel for the petitioner, and Sri R.S.Prakash Rao Kola, learned counsel for respondent no.1/Bank.

4. Sri V. Sai Kumar, learned counsel for the petitioner, while reiterating the contents of the writ affidavit would contend that Certificate of Registration of Labour Department clearly shows that the petitioner has been continuing in possession of the subject premises being its tenant much prior to creation of mortgage over the subject premises in favour of the bank and therefore, the bank authorities ought to have added him as a party to the proceedings in Crl.M.P.No.27 of 2024 and hence the orders passed by t