TaxTMI 
TaxTMI 
TaxTMI 
2016 (11) TMI 1071
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.... right is a sublesee of SGL in respect of 6.20 hectare land in khasra No.67, 68 and 71 situate in village Naya Nohara Tehsil Ladpura District Kota. And even though SGL may be in default in the repayment of its debts to SBI, yet that default has no impact on the rights of the petitioner company as it has no privity of contract with the aforesaid Bank nor has availed any loan therefrom and consequently not in default on payment of debt to SBI. Consequently, the public notice dated 11-7- 2016 for auction of the land under sub-lease with the petitioner company vide public notice dated 11-7-2016 is without jurisdiction, blatantly arbitrary, in violation of the petitioner company's rights under Article 300A of the Constitution of India and therefore liable to be quashed and set aside. The necessary factual background is that 27.79 hectares (69.19 acres) of land in Khasra No.66, 60, 93, 66/229, 69/301, 67, 68, 70 73, 307/73, 71 and 72 in village Naya Nohara Tehsil Ladpura District Kota were allotted to SGL and a lease deed in respect thereof executed under the Rajasthan Land Revenue (Allotment for Industrial Purposes) Rules, 1959 (hereinafter 'the Rules of 1959'). All of the aforesaid le....
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....s that the petitioner company has an alternative remedy under Section 17 of the Act of 2002 for reason of which it should be thereto relegated and not allowed to invoke the equitable extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. It has been submitted that in any event the petitioner company is not even in legal possession of the land admeasuring 6.20 hectare in khasra No.67, 68 and 71 in village Naya Nohara Tehsil Ladpura District Kota, inasmuch as despite the District Magistrate Kota's letter dated 10-3-2005 requisite sub lease was not executed as mandated thereunder by the General Manager, under Rule 9 of the Rajasthan Land Revenue (Industrial Allotment) Rules, 1959. Further the purported sub-lease unauthorisedly executed by SGL contrary to the District Magistrate's letter dated 10-3-2005 was not registered as required in under Section 17(1) of the Registration Act, 1908 nor is compliant with Section 106 and 107 of the Transfer of Property Act, 1882. Resultantly the petitioner company has no manner of legal right over the 6.20 Hectares in issue as claimed. It has been clarified that plant and machinery of the petitioner company will not ....
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.... 17 of the Act of 2002, was also made empowering the Debt Recovery Tribunal to restore possession of secured assets also to any "aggrieved person", aside of the borrower in the event of Debt Recovery Tribunal finding that the possession of the secured asset had been taken over by secured creditor illegally or in contravention of the legal rights of the borrower or one in possession with legal rights protected under other statutes. Section 17(4A) of the Act of 2002 also inserted effective 1-9-2016 inter alia provides that where any person in an application under sub-section (1) claims any tenancy or leasehold rights upon the secured asset, the Debt Recovery Tribunal after examining the facts of the case and evidences produced by the parties in relation to such claim shall for the purpose of enforcement of security interest have the jurisdiction to examine subsistency of the lease or tenancy including the question as to whether the lease is contrary to Section 65A of the Transfer of Property Act, 1882. The effect of the aforesaid amendments to Section 17 of the Act of 2002 effective 1-9-2016 is thus that aside of the borrower any person aggrieved of the action under Section 13(4) of ....
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....cluding parts of which the petitioner is a sub lessee. Mr. K.K. Sharma further submitted that the petitioner company having invoked the equitable extraordinary jurisdiction of this court against the public notice dated 11-7-2016 prior to coming into force of the amendment to Section 17 of the Act of 2002 effective 1-9-2016, this court should entertain the petition and not relegate the petitioner to the remedy under Section 17 of the Act of 2002. It was submitted that if it were to be so directed, it would entail divesting the petitioner company of its constitutional right at the relevant time in the absence of any alternative remedy obtaining on the date of filing of the writ petition. I am afraid, there is no force in the contention of Mr. Kamlakar Sharma. For one, resort to the jurisdiction of this court under its equitable extraordinary jurisdiction under Article 226 of the Constitution of India cannot be equated with a right to appeal. In the aforesaid context, the mere laying of writ petition against public notice dated 11-7-2016, does not entitle the petitioner to claim that the subsequent amendment to Section 17 of the Act of 2002 effective 1-9-2016 if operated against it w....
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....f the then extant sub-section 3 of Section 17 of the Act of 2002 as obtaining prior to amendment of 1-9-2016, the Debt Recovery Tribunal was empowered to restore the possession of the secured assets only to the borrower if it found illegality in its/ his dispossession. The view of the then extant state of law taken by the Apex court in the case of Harshad Govardhan Sondagar (supra) was quite apparently for the reason that a Tribunal created by the statute only had limited jurisdiction as conferred on it without any plenary/ inherent jurisdiction to grant relief not specifically it was empowered to under the statute. That state of affairs appears to have attracted the attention of the Parliament, consequent to which Enforcement of security interest and Recovery of debt laws and miscellaneous provisions amendment Bill 2016 was introduced on 9-5-2016 before the Loksabha. The said bill sought to amend four existing legislations including SARFAESI Act, 2002, the Recovery of Debt due to Bank and Financial Institutions Act, 1993, the Indian Stamp Act, 1899 and the Depositories Act, 1996. A key amendment proposed by the Bill 2016 was to Section 17 of the SARFAESI dealing with the "right to....