A non-borrower, from whom physical possession is yet to be taken but a sale notice has been issued by the secured creditor in respect of a property occupied by it, can present an application under Section 17 of the Act.

Dipankar Datta, J.

1. The case pleaded in this writ petition dated June 3, 2014 is this. The property at 14, Elias Road, Agarpara, Khardah, 24 Parganas (North) (hereafter the said property) was mortgaged by the third respondent as security for obtaining loans from the first respondent (hereafter the bank) for the fourth respondent. Failure of the third and the fourth respondents to repay the dues of the bank having occasioned, it has proceeded against them in terms of the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereafter the Act). A notice dated May 9, 2014 inviting offers from interested purchasers has been issued by the bank in terms of Rule 8 of the Security Interest (Enforcement) Rules (hereafter the Rules), whereby the said property has been put for sale on “as is where is” basis and such sale is fixed on June 23, 2014. The petitioner is a bona fide tenant under the third respondent, having been inducted in a portion of the said property in 2003 prior to creation of the mortgage in 2007. A suit instituted by the petitioner against the third respondent for declaration and permanent injunction is pending in the district court at Barasat, in connection whereof an interim order of injunction restraining the third respondent from evicting the petitioner is subsisting. Although the petitioner is in possession of the portion of the said property under tenancy and has a right to challenge the sale notice under Section 17 of the Act (since the encumbrance created by the tenancy is neither acknowledged in such notice nor does not make it clear that the said property is being sold subject to such tenancy), but it is unable to do so having regard to an order dated May 27, 2014 passed by the Kolkata Debts Recovery Tribunal No. II. While hearing S.A. No. 627 of 2014 (Sri Sanjoy Dutta vs. UCO Bank), being an application filed under the Section 17 of the Act, it has been held therein that even though sale notice in respect of a secured asset might have been issued, an application thereunder would not be maintainable so long the secured creditor does not take physical possession of the secured asset. While holding so, the tribunal considered the judgment and order dated May 6, 2014 passed by me on W.P. No. 353 of 2014 (M/s. Mercury Exporters and Manufacturing Pvt. Ltd. & another vs. Punjab National Bank and another), which has since been affirmed by an Hon’ble Division Bench by its judgment and order dated May 20, 2014 passed in APO No. 177 of 2014 (M/s. Mercury Exporters and Manufacturing Pvt. Ltd. & another vs. Punjab National Bank and another). Approaching the tribunal having jurisdiction with a Section 17 application, in the circumstances, would be an idle formality.

2. Apprehending that the tribunal would decline to entertain its application under Section 17 of the Act, the petitioner has presented this writ petition seeking, inter alia, the following relief:

“Your petitioners most humbly pray Your Lordships for –

(a) A writ of and/or in the nature of Certiorari do issue commanding the respondents their men, agents, servants and subordinates to transmit and certify the records of the instant case including the impugned Sale Advertisement dated 9.5.2014 being Annexure P-1 herein published by the respondent Nos. 1 and 2 in Times of India and in Bartaman for sale of the property situated at 14, Elias Road, Agarpara, Khardah, 24 Parganas, West Bengal in the name of Agarpara Company Limited, the respondent No. 3 herein so that on perusal of the same conscionable justice may be done by quashing or setting aside the said impugned sale advertisement.

(b) A writ of or in the nature of Mandamus commanding the respondents and their men, agents, servants and subordinates not to give any effect or further effect to the impugned Sale Advertisement dated 9.5.2014 being Annexure P-1 herein published by the respondent Nos. 1 and 2 in Times of India and in Bar