ORDER :

1. Heard Shri Vineet Kumar Sahu, learned counsel for the petitioner, Shri Sandeep Arora, learned counsel for respondent No. 3-Union Bank of India and learned Standing Counsel for State-respondent Nos. 1 & 2. None for respondent No. 4.

2. The writ petitioner claims to be a tenant of shop situate at 253, Jagdishbagh Attarsuiya, Nagar Nigam, Food Safety Zone-05, Allahabad. The shop is part and parcel of the premises No. 253A/334, Attarsuiya in front of Attarsuiya Police Station, Pargana and Tehsil Sadar, Prayagraj owned by one Vishal Kumar Singh son of late Shri Lalji Singh, the respondent No. 4 herein. The petitioner has approached this Court with a relief for quashing the order dated 20.2.2023 passed by the respondent No. 2 in proceedings under Section 14 of SARFAESI Act, 2002 and further praying that he may not be dispossessed from the shop in question under the order dated 20.2.2023.

3. It is the case of the petitioner that he is a valid tenant of the shop and there is a regular suit, being Suit No. 10 of 2020 pending adjudication before the Civil Court between him and his landlord/respondent No. 4. The petitioner is depositing the rent of the premises regularly. The impugned order is completely exparte and is not binding upon the petitioner yet the respondents are compelling the petitioner to vacate the shop from which the petitioner earns his livelihood.

4. Shri Sandeep Arora, learned counsel appearing for respondent No. 3 submits that the landlord of the petitioner, i.e. the respondent No. 4 was advanced financial assistance by the Bank to run his proprietorship concern M/s A to Z Builder & Suppliers. The House No. 253A/334 Attarsuiya including the shop under the tenancy of the petitioner had been mortgaged to secure the financial assistance. The respondent No. 4 defaulted in repayment of the loan and consequently, the Bank has moved the District Magistrate to take possession of the mortgaged property under Section 14 of SARFAESI Act, 2002. The impugned order dated 20.2.2023 has been passed by the respondent No. 2. Shri Arora further submits that the respondent No. 4 has already approached the Debt Recovery Tribunal under Section 17 of the SARFAESI Act, 2002 assailing the order dated 20.2.2023 and no indulgence has been granted by the Debt Recovery Tribunal. The petitioner has been set up to resist the proceedings of taking over possession by the Bank. It is contended that the petitioner being the tenant cannot resist the taking over possession of the property mortgaged which right the Bank enjoys under law owing to the default committed by the respondent No. 4 borrower, particularly in view of the fact that the petitioner has shown his tenancy from 12.2.2018 when his shop has been registered under the Food Safety and Standards Act, 2006 after the financial assistance was availed by the landlord-respondent. Moreover, the petitioner has not established his tenancy rights over the shop in question which is part and parcel of the secured asset through any registered instrument and is relying simply on certain deposits made towards rent through Bank. Reliance is placed upon the decision of the Apex Court in the case of Hemraj Ratnakar Salian versus HDFC Bank Ltd. and others, reported in AIR 2021 SC 3880.

5. We have heard the learned counsel for the parties and have also perused the record as also the decision of the Apex Court cited at the Bar. The Apex Court in the decision cited was dealing with orders passed by the Chief Metropolitan Magistrate, Esplanade Mumbai rejecting the application filed by tenant restraining the HDFC Bank from taking possession of the property in his possession. The Apex Court taking note of a decision of the Trial Judge Bench in the case of Bajrang Shyamsunder Agarwal versus Central Bank of India and another, reported in 2019 (9) SCC 94 after considering almost all decisions in relation to the right of a tenant in possession of a secured asset held that if a valid tenancy under law is in exis