Under Section 17 of the SARFAESI Act, the right to approach the Debt Recovery Tribunal is not restricted to the borrower alone, and includes any person aggrieved by measures taken by a secured creditor, precluding the exercise of writ jurisdiction when an efficacious alternative legal remedy is available.

ORAL ORDER

The present writ petition is filed seeking the following prayer:

"A) SETTING ASIDE the impugned Order

dated 28-02-2022 (ANNEXURE-A) in

C.Misc No.202/2022 of the IX ACMM by

holding that the same is

unsustainable/not binding against the

Petitioner;

B) DIRECTING that the Petitioners be

allowed to keep possession of their

respective properties.

C) GRANTING all other reliefs as this

Hon'ble Court may deem fit, proper and

necessary under the facts and

circumstances of the case."

2. It is the case of the Petitioner that he had purchased the property by way of a registered sale deed dated 19.09.2019, and the predecessor-in-title of the petitioner had purchased the said property in the year 2013. It is stated that, after selling the property to various purchasers, respondent No. 3 applied for a loan on 13.02.2017 and borrowed a sum of Rs.3 crores on 21.02.2017 from Respondent No. 2 Bank by fraudulently mortgaging the property by concealing the fact of prior sale. Thereafter, respondent No.6, who is the daughter of Respondent No. 3 and was a 17-year-old minor at the the time, also applied for a loan and borrowed Rs.67 lakhs on 31.03.2018 from Respondent No. 2 Bank by again fraudulently mortgaging the same property fraudulently by concealing the fact of prior sale/conveyance of the flats.

3. Even the Bruhat Bengaluru Mahanagara Palike has issued a khata in favour of the Petitioner in respect of the said property. The petitioner has been paying property tax on the said immovable property till date. Thereafter, without informing the Petitioner, respondent No. 2 Bank issued a notice dated 18.10.2021 to Respondent Nos. 3, 4, 5, and 6, recalling both the said loans and demanding immediate payment of a total sum of Rs.4,01,36,152/-. The petitioner was not served with a copy of the said notice.Subsequently, the Bank filed an application before the learned Magistrate under Section 14 of the Securitisation and Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 (for short 'SARFAESI Act'), registered as Crl. Misc. No. 202/2022, seeking enforcement of its security interest and praying that respondent No.2 Bank be put in possession of the said property allegedly mortgaged by respondent Nos. 3 and 6. The learned Magistrate disposed of the said application by way of the impugned order dated 28.02.2022. It was only upon issuance of a possession notice dated 02.03.2022 that the petitioner has come to know abut the said proceedings. Thereafter, the petitioner approached the Debt Recovery Tribunal (for short, 'DRT') by filing an application on 07.03.2022 under Section 17 of the SARFAESI Act, seeking to restrain the Respondent Bank from taking possession of the property. However, there is a reasonable apprehension that respondent No. 1–Officer and respondent No.2 Bank may forcibly take over the petitioner from lawful possession of the property. Hence, the petitioner has come before this Court.

4. Learned counsel for the petitioner submits that there is collusion and fraud between the borrower and the Bank. It is contended that the property had already been sold in the year 2013 and despite the same, the Bank has granted loans by treating the said property as a secured asset. It is the specific contention of the petitioner that the said property does not constitute a secured asset and was not mortgaged to the Bank. It is further submitted that the Petitioner is neither a borrower nor a guarantor. In such circumstances, the respondent Bank has no authority to initiate proceedings under the SARFAESI Act against the Petitioner’s property. Upon a specific query by this Court with regard to the maintainability of the present writ petition, particularly in the light of the availability of an effective alternative remedy before the DRT and especially when the petitioner has already approached the DRT by filing an application, learned counsel for the petitioner submitted that the DRT has no jurisdiction to adjudicate the present case.