The judgment emphasizes the tenant's rights under the SARFAESI Act, particularly the distinction between symbolic and actual physical possession, and the tenant's recourse to challenge the order under Section 17(4-A).

S. Manikumar, J.

1. Order made in Crl.M.P.No.4328 of 2017, dated 18/1/2018, on the file of the Chief Metropolitan Magistrate, Allikulam, Chennai, directing appointment of an Advocate Commissioner, to take possession of the subject property, mortgaged with the Bank, with the assistance of the Station House Officer, R.5 Virugambakkam Police Station, Chennai and handover the same to M/s. Axis Bank Limited, Chennai, first respondent herein, is challenged by the petitioner.

2. According to him, he is a tenant of the third respondent. He has been paying monthly rent periodically. He is not aware of any loan transaction between the Bank and the borrower. On 21/2/2018, an Advocate Commissioner, came to the house, in which he is a lessee and served a copy of an order, made in Crl.M.P.No.4328 of 2017, dated 18/1/2018, passed by the learned Chief Metropolitan Magistrate, Chennai and only thereafter, he came to know about the banking transactions.

3. Inviting the attention of this Court to the possession notice, dated 2/8/2016, Mr. P.Ram Japa Singh, learned counsel for the petitioner submitted that the said notice was challenged by the borrower, Mr. P.Sathya Soul Raj, Kanyakumari District, represented by his Power of Attorney, in S.A.No.101 of 2016, on the file of the Debts Recovery Tribunal 2, Chennai and taking note of the memo, dated 21st December 2016, filed by Axis Bank Limited, respondent therein, possession notice was withdrawn. Accordingly, S.A., challenging possession notice, was allowed.

4. Inasmuch as S.A.No.1 of 2016 has been allowed, learned counsel for the petitioner submitted that suppressing the above, Bank has filed Crl.M.P.No.4328 of 2017, under Section 14 of the SARFAESI Act, 2002, for taking actual physical possession, which according to him is erroneous.

5. Placing reliance on the decision of the Hon'ble Supreme Court, in Harshad Govardhan Sondagar Vs. International Assests Reconstruction Co. Ltd., & Ors, reported in 2014 (5) CTC - 546, and another decision of this Court in Nantu Maity Vs. Allahabad Bank and three others, {2015 (5) CTC - 73}, learned counsel for the petitioner submitted that when there is a lessee in the subject property, the tenant is entitled to be heard in the application filed under Section 14 of the SARFAESI Act. According to him, Bank has not impleaded the tenant in the application filed before the learned Chief Metropolitan Magistrate, Chennai, and therefore, there is a violation of principles of natural justice, warranting interference with the impugned order.

6. Heard the learned counsel for the petitioner and perused the materials available on record.

7. Contention that the petitioner is a tenant under P.Sathya Soulraj, respondent No.3, is a matter of evidence. As per Section 13 (4) of the SARFAESI Act, 2002,

(4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:-

(a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset;

(b) take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset:

Provided that the right to transfer by way of lease, assignment or sale shall be exercised only where the substantial part of the business of the borrower is held as security for the debt:

Provided further that where the management of whole of the business or part of the business is severable, the secured creditor shall take over the management of such business of the borrower which is relatable to the security for the debt;

(c) appoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor;

(d) require at any time by notice in writing, any person who has a