A civil suit by a tenant against a secured creditor for possession of the mortgaged property is not maintainable under the provisions of the SARFAESI Act. The tenant's remedy lies by filing an application under Section 17(1) of the SARFAESI Act before the Debts Recovery Tribunal.

Prasenjit Mandal, J.: This application is directed against the order dated August 19, 2010 passed by the learned Civil Judge (Senior Division), 4th Court, Alipore in Title Suit no.1245 of 2010 thereby rejecting an application under Order 7 Rule 11 of the C.P.C. filed by the defendants.

2. The plaintiff / opposite party herein instituted a suit being Title Suit No.1245 of 2010 against the petitioners and the proforma opposite party praying for the relief that the plaintiff is a lawful tenant in respect of the premises-in-suit under the defendant no.1 and is not liable to be evicted without due process of law, that the plaintiff is entitled to hold the tenancy right over the said premises-in-suit at the exclusive of any claim, demand, right and interest of the defendant nos.2 and 3, their men and agents, permanent injunction restraining the defendants, their men and agents from disturbing plaintiff’s peaceful possession over the premises-in-suit and other reliefs. The petitioners entered appearance in the said suit and filed an application under Order 7 Rule 11 of the C.P.C. for rejection of the plaint on the ground that the said suit is a bar in view of the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (henceforth shall be described as SARFAESI Act, 2002). The plaintiff filed a written objection to the said application. Upon hearing both the sides, the learned Trial Judge has rejected the said application. Being aggrieved, the defendants / petitioners have preferred this application.

3. Now, the point for consideration is whether the impugned order should be sustained.

4. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the plaintiff / opposite party herein instituted the said suit contending, inter alia, that he was inducted as a tenant under the defendant no.1 / proforma opposite party herein by a tenancy agreement dated January 1, 2008. The plaintiff has claimed that he is in possession of the premises-in-suit and he is paying rent for the premises to the landlord as per agreement dated January 1, 2008. He has also contended in the plaint that the landlord issued a notice upon him on March 10, 2010 intimating that the defendant nos.2 and 3 had taken action and initiated proceedings against him under the SARFAESI Act, 2002 and as such, he asked the tenant to vacate the premises-in-suit. The plaintiff has also annexed the copy of the letter dated March 10, 2010 served upon him by the defendant no.1 and also the notice dated March 3, 2010 upon the defendant no.1 by the defendant nos.2 and 3 / petitioner herein and those notices have been marked as annexures ‘B’ and ‘C’ to the said suit. From the copy of the said notice issued by the petitioners, it reveals that the premises-in-suit is covered within the security to have the loan by the landlord from the petitioners. Thus, from the copy of the plaint and annexures filed by the plaintiff in respect of the plaint, it is evident that the petitioners are the secured creditors in respect of the loan taken by the landlord from the petitioners. From the said annexure, it also reveals that the secured creditors issued a notice upon the debtor under Section 13(2) of the said SARFAESI Act, 2002. Thus, on perusal of the plaint supported by annexures, it is evident that the dispute between the parties is covered by the provisions of the SARFAESI Act, 2002.

5. Under the circumstances, if any lease is granted, subsequently, such lease shall be subject to the liabilities of the landlord to the secured creditors unless otherwise dealt with under Section 65 A of the Transfer of Property Act. The landlord has asked the tenant to vacate the premises on receiving a notice under Section 13(2) of the said SARFAESI Act, 2002.

6. From the above facts and circumstances, it is evident that the reliefs sought for by the plaintiff are to be taken into consideration in view