Nirmaljit Kaur, J. - Both the above mentioned writ petitions shall stand decided by this common order being identical and arising out of the same application under Sections 18 and 21 of the Rajasthan Rent Control Act, 2001 pending between the same parties.

2. The Writ Petition No. 16965/2017 has been preferred by the petitioner - bank against impugned Order dated 04.09.2017 passed by the Rent Tribunal, Bikaner vide which the interim order granting status quo in favour of the respondent No. 1, the alleged tenant, was passed, whereas, the Writ Petition No. 654/2018 has been preferred against the Order dated 28.11.2017 passed by the Rent Tribunal, Bikaner dismissing the application under Order 7, Rule 11 of C.P.C. filed by the petitioner - bank.

3. The facts in short are that the petitioner - I.C.I.C.I. Bank is a Banking Financial Institution registered under the Banking Regulation Act, 1954. The respondent Nos. 2 and 3 - borrowers approached the petitioner - bank for obtaining the financial assistance and availed the loan facility of Rs. 5,00,00,000/-, which was to be repaid by them in equated monthly installments along with applicable interest. For the purpose of repayment of the said loan amount, the respondent Nos. 2 and 3 - borrowers mortgaged their certain immoveable properties including the house in dispute situated in the city of Bikaner as mentioned in the loan documents. On account of non-payment of monthly installments in the said loan account, the petitioner - bank declared the loan account of the respondents as N.P.A. in the year 2015 and when the respondents - borrowers failed to repay the said loan, the petitioner - bank initiated the proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short the SARFAESI Act hereinafter) against the respondents - borrowers and got served the notice under Section 13(2) of the SARFAESI Act upon them. In spite of service of the said notice, the respondents - borrowers failed to repay the loan amount. Accordingly, the petitioner - bank moved an application under Section 14 of the SARFAESI Act before the District Collector, Bikaner and while giving out the details of the immoveable properties mortgaged by the respondents - borrowers with the petitioner - bank requested that the possession of the said mortgaged property be taken over from the respondents - borrowers and handed over to the petitioner - bank. The District Collector, Bikaner vide Order dated 19.07.2017 allowed the application under Section 14 of the SARFAESI Act and directed the taking over of the physical possession of the house in question with the help of police. After passing the said order, the respondent No. 1, the alleged tenant, moved an application under Sections 18 and 21 of the Rajasthan Rent Control Act, 2001 (for short the Rent Act of 2001 hereinafter) against the petitioner - bank as well as respondent Nos. 2 and 3 before the Rent Tribunal, Bikaner on 04.08.2017 pleading therein that he took the disputed premises on rent of Rs. 1,000/- per month from the respondent Nos. 2 and 3 on 01.04.2009 and since then, he along with his family is residing therein. Initially, the tenancy was started from the rent of Rs. 800/- per month and thereafter, it was increased to Rs. 1,000/- per month. In addition to the monthly rent of Rs. 1,000/-, the liability to pay the electricity charges was on him. There is landlord and tenant relationship between him and the respondent Nos. 2 and 3. He is regularly making payment of monthly rent to the landlord and therefore, it was pleaded that the petitioner - bank cannot dispossess him under the provisions of the SARFAESI Act as the provisions of the SARFAESI Act did not override the provisions of the Rent Act of 2001. Reliance was placed on the judgment rendered by the Apex Court in the case of Vishal N. Kalsaria v. Bank of India and others reported in (2016) 3 Supreme Court Cases 762 .

4. The petitioner - bank filed an application under Order 7, Rule 11 of C.P.C. on 31.08.2017 on the ground that the applicant was not a tenant in the said property and he is a planted tenant by the respondent Nos. 2 and 3 - borrowers in order to restrain the petitioner - bank from recovering their legal dues. The main objection raised in the application under Order 7, Rule 11 of C.P.C. by the petitioner - bank was with respect to the maintainability of the petition filed by the respondent - 1 under Sections 18 and 21 of the Rent Act of 2001 stating therein that the said petition was not maintainable in view of the Notification dated 12.08.2016 issued by the Government of India bringing about an amendment in Section 17 of the SARFAESI Act by inserting sub-section (4-A) clearly laying down that any person who claims his tenancy or leasehold rights upon the secured asset can invoke the jurisdiction of the Debts Recovery Tribunal to determine the said dispute and that the judgment rendered by the Apex Court in the case of Vishal N. Kalsaria (supra) cannot be applied as the above amendment by way of insertion of sub-section (4-A) in Section 17 of the SARFAESI Act has subsequently came into force. The said application under Order 7, Rule 11 of C.P.C. was rejected by the Rent Tribunal vide its Order dated 28.11.2017 on the ground that the Apex Court in the case of Vishal N. Kalsaria (supra) has held that the provisions of the SARFAESI Act did not apply to the application filed under the Rent Act of 2001 and therefore, amendment in Section 17 of the SARFAESI Act by inserting subsection (4-A) did not restrain the Rent Tribunal from adjudicating the dispute between the landlord and the tenant.

5. Thus, the issue before this Court is the effect of the amendment in Section 17 of the SARFAESI Act by inserting subsection (4-A) vis-a-vis the provisions of the Rent Act of 2001.

6. In order to adjudicate the same, it is necessary to reproduce the newly added sub-section (4-A) of Section 17 of the SARFAESI Act, which is as under :-

"17. [Application against measures to recover secured debts]._ (1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, [may make an application along with such fee, as may be prescribed] to the Debts Recovery Tribunal having jurisdiction in the matter within fortyfive days from the date on which such measures had been taken:-

(1-A) ..... xxx .....

to

(4) ..... xxx .....

(4A) Where-

(i) 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 evidence produced by the parties in relation to such claims shall, for the purposes of enforcement of security interest, have the jurisdiction to examine whether lease or tenancy,-

(a) has expired or stood determined; or

(b) is contrary to section 65A of the Transfer of Property Act, 1882 (4 of 1882); or

(c) is contrary to terms of mortgage; or

(d) is created after the issuance of notice of default and demand by the Bank under sub-section (2) of section 13 of the Act;

(ii) the Debt Recovery Tribunal is satisfied that tenancy right or leasehold rights claimed in secured asset falls under the sub-clause (a) or sub-clause (b) or sub-clause (c) or sub-clause (d) of clause (i), then notwithstanding anything to the contrary contained in any other law for the time being in force, the Debt Recovery Tribunal may pass such order as it deems fit in accordance with the provisions of this Act.".

7. Mr. B.S. Sandhu, learned counsel appearing for the respondent No. 1, the alleged tenant, argued that the Apex Court in the case of Vishal N. Kalsaria (supra) has held in no uncertain terms that a tenant and lessee cannot be evicted without adopting due process of law for eviction under the State Rent Control Law and that the financial institution can proceed against the landlord and the borrower under the SARFAESI Act but no proceedings can be undertaken against the tenant except under the Rent Control Act, which the auction purchaser can adopt once he steps into the shoes of the borrower in view of the judgment rendered by the Apex Court in the case of Vishal N. Kalsaria (supra). It was contended that insertion of sub-section (4-A) in Section 17 of the SARFAESI Act by amendment does not take away the right vested in the tenant under the Rent Control Act as upheld by the Apex Court in its judgment rendered in the case of Vishal N. Kalsaria (supra) in Para 39 & 40 which was as under :-

"39. If the interpretation of the provisions of the SARFAESI Act as submitted by the learned senior counsel appearing on behalf of the Banks is accepted, it would not only tantamount to violation of rule of law, but would also render a valid Rent Control statute enacted by the State Legislature in exercise of its legislative power under Article 246(2) of the Constitution of India useless and nugatory. The Constitution of India envisages a federal feature, which has been held to be a basic feature of the Constitution, as has been held by the seven Judge Bench of this Court in the case of S.R. Bommai v. Union of India, wherein Justice K. Ramaswamy in his concurring opinion elaborated as under:

"247. Federalism envisaged in the Constitution of India is a basic feature in which the Union of India is permanent within the territorial limits set in Article 1 of the Constitution and is indestructible. The State is the creature of the Constitution and the law made by Articles 2 to 4 with no territorial integrity, but a permanent entity with its boundaries alterable by a law made by Parliament. Neither the relative importance of the legislative entries in Schedule VII, Lists I and II of the Constitution, nor the fiscal control by the Union per se are decisive to conclude that the Constitution is unitary. The respective legislative powers are traceable to Articles 245 to 254 of the Constitution. The State qua the Constitution is federal in structure and independent in its exercise of legislative and executive power. However, being the creature of the Constitution the State has no right to secede or claim sovereignty. Qua the Union, State is quasifederal. Both are coordinating institutions and ought to exercise their respective powers with adjustment, understanding and accommodation to render socio-economic and political justice to the people, to preserve and elongate the constitutional goals including secularism.

248. The preamble of the Constitution is an integral part of the Constitution. Democratic form of Government, federal structure, unity and integrity of the nation, secularism, socialism, social justice and judicial review are basic features of the Constitution."

(emphasis supplied)

40. In view of the above legal position, if we accept the legal submissions made on behalf of the Banks to hold that the provisions of SARFAESI Act override the provisions of the various Rent Control Acts to allow a Bank to evict a tenant from the tenanted premise, which has become a secured asset of the Bank after the default on loan by the landlord and dispense with the procedure laid down under the provisions of the various Rent Control Acts and the law laid down by this Court in catena of cases, then the legislative powers of the state legislatures are denuded which would amount to subverting the law enacted by the State Legislature. Surely, such a situation was not contemplated by the Parliament while enacting the SARFAESI Act and therefore the interpretation sought to be made by the learned counsel appearing on behalf of the Banks cannot be accepted by this Court as the same is wholly untenable in law."

8. The judgment rendered in the case of Vishal N. Kalsaria (supra) was delivered on 20.01.2016, whereas, sub-section (4-A) was inserted in Section 17 of the SARFAESI Act with effect from 01.09.2016. In fact, the object behind the amendment was the observations made by the Apex Court in the case of Harshad Govardhan Sondagar v. International Assets Reconstruction Co. Ltd. & ors. (Criminal Appeal No. 736/2014 [arising from Petition(s) for Special Leave to Appeal (Crl) No(s) 1666/2012]) decided on 03.04.2014 and the observations made in the case of Vishal N. Kalsaria (supra) itself. The judgment rendered in the case of Vishal N. Kalsaria (supra) gave ample opportunity to even some unscrupulous borrowers to put forward a tenant and frustrate the rights of the secured creditor to recover their dues from the mortgaged property. It was in these circumstances that sub-section (4-A) was incorporated and sub-section (3) was substituted in Section 17 of the SARFAESI Act to plug the mischief.

9. Admittedly, the eviction petition can be filed against the tenant under the Rent Act of 2001 only on the grounds available under Section 9 of the Rent Act of 2001 which deals with Eviction of tenants. Section 9 of the Rent Act of 2001 reads as under :-

9. Eviction of tenants. - Not withstanding anything contained in any other law or contract but subject to other provisions of this Act, the Rent Tribunal shall not order eviction of tenant unless it is satisfied that, -

(a) the tenant has neither paid nor tendered the amount of rent due from him for four months :

Provided that the ground under this clause shall not be available to the landlord if he has not disclosed to the tenant his hank account number and name of the bank in the same Municipal area, in the rent agreement or by a notice sent to him by registered post, acknowledgment due :

Provided further that no petition on the ground under this clause shall be filed unless the landlord has given a notice to the tenant by registered post, acknowledgment due, demanding arrears of rent and the tenant has not made payment of arrears of rent within a period of thirty days from the date of service of notice.

Explanation.- For the purposes of this clause, the rent shall be deemed to have been tendered when the same is remitted through money order to the landlord by properly addressing the same; or

(b) the tenant has willfuly caused or permitted to be caused substantial damage to the premises; or

(c) the tenant has without written permission of the landlord made or permitted to be made any construction which has materially altered the premises or is likely to diminish the value thereof; or

(d) the tenant has created a nuisance or has done an act which is inconsistent with the purpose for which he was admitted to the tenancy of the premises or which is likely to affect adversely and substantially the landlords interest therein; or

(e) the tenant has assigned, sub-let or otherwise parted with the possession of the whole or part of the premises without the written permission of the landlord;

Explanation.- If it is established that some person other than the tenant is in the exclusive possession of the whole or part of the premises, it shall be presumed that the tenant has either sub-let or parted with the possession of the whole or part of the premises, as the case may be; or

(f) the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant; or

(g) the premises were let out for residential purposes but have been put to commercial use wholly or partially; or

(h) the premises were let out to the tenant for residential purposes by reason of his being in the service or employment of the landlord and the tenant has ceased to be in such service or employment; or

(i) the premises are required reasonably and bona fide by the landlord for the use or occupation of himself or his family or for the use or occupation of any person for whose benefit the premises are held :

Provided that where decree of eviction from any premises is sought by the landlord under Clause (i), he shall he prohibited from letting out the same to any other person within a period of three years and in case the premises are let-out, the tenant shall be entitled for restoration of possession on a petition moved by him before the Rent Tribunal and the Rent Tribunal shall dispose of such petition expeditiously and the procedure as laid down in Section 16, shall mutatis mutandis apply; or

(j) the tenant has built or acquired vacant possession of or has been allotted suitable premises adequate for his requirement; or

(k) the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately proceeding the date of the petition; or

(l) the landlord has been required by any authority under any law to abate the over crowding of the premises, or

(m) the landlord requires the premises in order to carry out any building work.-

(i) at the instance of the State Government or a local authority in pursuance of an improvement scheme or development scheme; or

(ii) because the premises have become unsafe or unfit for human habitation."

10. A perusal of Section 9 of the Rent Act of 2001 shows that the grounds as mentioned can only be available to a landlord and not to a secured creditor meaning thereby that, the petitioner - bank, in any case, cannot invoke Section 9 of the Rent Act of 2001. On the other hand, the petition has been filed by the respondent No. 1, the alleged tenant, by invoking Sections 18 and 21 of the Rent Act of 2001. Section 18 of the Rent Act of 2001 reads as under :-

"18. Jurisdiction of Rent Tribunal.- Notwithstanding anything contained in any other law for the time being in force, in the areas to which this Act extends only the Rent Tribunal and no Civil Court shall have jurisdiction to hear and decide the petitions relating to disputes between landlord and tenant and matters connected therewith and ancillary thereto, filed under the provisions of this Act :

Provided that Rent Tribunal Shall, in deciding such petitions to which provisions contained in Chapters II and III of this Act do not apply, have due regard to the provisions of Transfer of Properties Act, 1882 (Act No. 4 of 1882) the Indian Contract Act, 1872 (Act No. 9 of 1872), or any other substantive law applicable to such matter in the same manner in which such law would have been applied had the dispute been brought before a Civil Court by way of suit:

Provided further that nothing contained in this Act shall he deemed to empower the Rent Tribunal to entertain a petition involving such dispute between landlord and tenant to which provisions of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (Act No. 2 of 1965) and the Rajasthan Premises (Requisition and Eviction) Ordinance, 1949 apply.

(2) Where the petition only for recovery of unpaid rent or arrears of rent is filed, the time schedule and procedure enumerated in Section 14 shall mutatis mutandis apply to such petition.

(3) Where the petition for recovery of possession is filed in respect of the premises or tenancies to which the provisions of Chapter II and III of this Act do not apply, the time schedule and procedure enumerated in Section 15 shall mutatis mutandis apply to such petition.

(4) A petition shall be instituted before the Rent Tribunal, within the local limits of whose jurisdiction the premises is situated."

11. A perusal of Section 18 of the Rent Act of 2001 makes it clear that the same only pertains to the dispute between the landlord and the tenant and do not, in any manner, take into account the dispute between the tenant and the secured creditor who is entitled to take possession of the property in question in pursuance to the proceedings under the SARFAESI Act. In case, the argument of the learned counsel for the respondent No. 1, the alleged tenant that he cannot be evicted except on the grounds as specified in the Rent Act is accepted, it would render the secured creditor totally remediless to secure the possession of the mortgaged property. The argument of the learned counsel for the respondent No. 1, the alleged tenant that either the secured creditor should itself purchase the property and step into the shoes of a landlord or auction the property and leave it to the auction purchaser to proceed under the Rent Act of 2001 in view of the judgment in the case of Vishal N. Kalsaria (supra) is no more available in view of the amended provisions of the SARFAESI Act which have been incorporated to safeguard the interest of both i.e. the genuine tenant as well as safeguard the interest of secured creditors against the unscrupulous tenants.

12. There is another way to look at the dispute in hand. Admittedly, in the present case, no eviction of the respondent No. 1, the alleged tenant, is being sought on the grounds as mentioned in Section 9 of the Rent Act of 2001 except in pursuance to the order passed by the District Magistrate on an application under Section 14 of the SARFAESI Act. In these circumstances, the respondent No. 1, the alleged tenant, aggrieved with the order seeking possession could invoke subsection (4-A) of Section 17 of the SARFAESI Act, under which the possession of his property is being taken, which lays down in clear terms that any person who claims tenancy or leasehold rights could resort to this provision for examining the leasehold or the tenancy rights upon the secured assets. Sub-section (4-A) has been incorporated for special circumstances and issues as involved in the present case with respect to the lease or tenancy being contrary to section 65 of the Transfer of Property Act, 1882 or contrary to the terms of mortgage or having been created after the issuance of notice of default. It was keeping the said fact in mind that the learned Single Bench of the High Court of Karnataka at Bengaluru in the case of Sri. B.V. Vidyanatha & anr. v. The Authorized Officer, National Co-operative Bank Ltd. & anr. (Writ Petition Nos. 21388 to 21390 of 2017 [GM-RES]) decided on 10.08.2017 disposed of the petitions filed by the tenants and the lessees, who had directly approached the High Court challenging the possession notice on the ground that the same cannot be enforced except under the State Rent Control Law, with liberty to file their applications before the concerned Debt Recovery Tribunal under Section 17(4-A) of the SARFAESI Act by observing in Para 20 as under :-

"20. Here, since the petitioners have an effective, alternative remedy under Section 17 (4A) of the SARFAESI Act, 2002 now available to them, where the Debt Recovery Tribunal can go into the question of validity of tenancy as per the said provisions, this Court would not make any observation on the merits of the contentions raised by the parties and the petitions are therefore disposed of with a liberty and direction to the petitioners to file their Applications before the concerned Debt Recovery Tribunal under Section 17(4-A) of the SARFAESI Act, 2002, within a period of two weeks from today and for a period of four weeks only from today, without any extension of time further by this Court, it is directed that the Respondent - Financial Institution, in execution of the impugned order under Section 14 of the SARFAESI Act, 2002, dated 20/05/2017 shall not take coercive measures for seeking physical and vacant possession of the said tenanted portions of the premises from the petitioners provided further that the petitioners will give an undertaking in writing to the Respondent No.1, Financial Institution/Bank that all arrears of rent and the current rentals due to be paid by them to the Respondent lessors/landlords will be made over to the respondent No.1 - Financial Institution within the aforesaid period of two weeks and they shall continue to deposit the rent with the Respondent No.1 - Financial Institution till they hold the possession of the said premises under their Lease/Rent Agreement. The operation of impugned order under Section 14 of the Act would abide by the orders to be passed by the DRT under Section 17(4A) of the Act."

13. Similarly, the learned Single Bench of Punjab & Haryana High Court in the case of Shakti Trading Co. v. Kailashwanti and another (RSA No. 6184 of 2017 [O/M]) decided on 18.01.2018 while upholding the order of the courts below allowing application under Order 7, Rule 11 of C.P.C. on the ground that the jurisdiction of the civil court was barred held that issues in hand were required to be settled before the Debts Recovery Tribunal by observing that the bare reading of Section 17 of the SARFAESI Act did not debar the Debts Recovery Tribunal from examining the tenancy existed before the creation of loan or initiation of proceedings under the SARFAESI Act. The observation of the learned Single Bench reads :-

"The plea of learned counsel for petitioner to the extent that as per newly added sub-section i.e. subsection (4-A) of Section 17 of SARFAESI Act, 2002, only four clauses mentioned in the said sub-section can be examined by the Debts Recovery Tribunal, is without any force. Section 17 (4-A) of SARFAESI Act, 2002, specifically provides for claim regarding tenancy or leasehold rights wherein Debts Recovery Tribunal can examine such claims. The bare reading of Section 17 of SARFAESI Act, 2002, as a whole, shows that the Debts Recovery Tribunal is not debarred from examining that the tenancy existed before the creation of loan or initiation of proceedings under the SARFAESI Act, 2002, and that rights of tenancy are to be protected."

14. The view of this Court is also strengthened by the judgment rendered by the learned Single Bench of this Court at Jaipur Bench in the case of M/s Alpha Beta Shiksha Samiti v. State of Rajasthan & ors. (S.B. Civil Writ Petition No. 10503/2016) decided on 23.02.2017 wherein the writ petition was filed by the alleged tenant against the action of the respondents in putting lock and key on the premises of the petitioners school therein in pursuance to the order passed under Section 14 of the SARFAESI Act. On the basis of the judgment rendered by the Apex Court in the case of Vishal N. Kalsaria (supra), it was argued in the said case too that the SARFAESI Act operates in a different field and it cannot be used to dispossess the tenant from the mortgaged property and the rights of such tenant can only be determined by a competent tribunal under the Rajasthan Rent Control Act, 2001. The learned Single Judge while rejecting the argument of the petitioner disposed of the said writ petition and relegated the petitioner - tenant therein to approach the Debts Recovery Tribunal by holding as under :-

"In the present case, the petitioner is claiming tenancy rights and filed writ petition before this Court on 29.07.2016, at a time when the aforesaid remedy was not provided by the statute to the petitionertenant, but now when sub section (4A) has been inserted in Section 13 to specifically provide remedy to the persons, who claims any tenancy or leasehold rights upon the secured asset, the petitioner has to first approach the Debts Recovery Tribunal.

Similar argument was raised before Co-ordinate Bench of this Court in Samtel Color Ltd. v. State Bank of India & Ors. (S.B. Civil Writ Petition No. 11302/2016 decided on 17.10.2016) wherein it was observed that Section 17 of the SARFAESI Act, which at the relevant time provided for a right to appeal was amended on 01.09.2016. In its amended form, the misnomer of "Right to Appeal" under Section 17 of the SARFAESI ACT was corrected as that of a right to an application against measures to recover secured debts. Another amendment, to subsection (3) of Section 17 of the SARFAESI Act 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 was also inserted effective 01.09.2016 inter alia providing 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 subsistence 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 aforesaid amendments to Section 17 of the SARFAESI Act became effective 01.09.2016, which means that aside of the borrower, any person aggrieved of the action under Section 13(4) of the SARFAESI Act can approach the Debt Recovery Tribunal, which, on finding contravention of the SARFAESI Act by the secured creditor can restore possession of the secured asset to such aggrieved person safeguarding its/his rights in law de-hors the rights of the secured creditor qua the mortgaged property in issue."

15. Another factual aspect which seems to have been escaped the notice of the Rent Tribunal was Section 34 of the SARFAESI Act, which reads :-

"34. Civil Court not to have jurisdiction._ No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993)."

16. A perusal of Section 34 shows that no injunction can be granted "by any Court or other authority". The Concurrent Bench in Harshad Govardhan Sondagars case (supra) while interpreting the provisions of Section 34 of the SARFAESI Act had already taken a view that an authority under a State Rent Control Act could not interfere, much less injunct, an action taken under SARFAESI Act by a secured creditor in relation to a secured asset. One of the questions before the Apex Court in the case of Harshad Govardhan Sondagar (supra) was whether the tenants have the remedies under the State Tenancy Law. While interpreting Section 34 of the SARFAESI Act, the Apex Court held that Section 33 of the Maharashtra Rent Control Act, 1999 vests jurisdiction in the Court therein to decide the dispute between the landlord and tenant and not between the secured creditors and the tenant and accordingly, answered the said question in Para 26 of the said judgment as follows :-

"26. A further question of law raised in these appeals is whether the tenants have remedies under the concerned tenancy law. In the State of Maharashtra, the Maharashtra Rent Control Act, 1999 is in force and this Act applies to premises let for the purposes of residence, education, business, trade or storage specified in Schedule I and Schedule II of the Act as well as houses let out in areas to which the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 applied before the commencement of the Act. Section 33 of the Maharashtra Rent Control Act is titled Jurisdiction of courts and it provides that the courts named therein shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises and to decide any application made under the Act and the applications which are to be decided by the State Government or an officer authorised by it or the Competent Authority. The question of law that we have to consider is whether the Appellants as tenants of premises in the State of Maharashtra including Mumbai will have any remedy to move these courts having jurisdiction under Section 33 of the Maharashtra Rent Control Act and obtain the relief of injunction against the secured creditor taking possession of the secured asset from the Appellants. The answer to this question is in Section 34 of the SARFAESI Act, which is extracted hereinbelow:

34. Civil court not to have jurisdiction.-No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).

A reading of the second limb of Section 34 of the SARFAESI Act would show that no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. Thus, when action is sought to be taken by the secured creditor under Section 13 of the SARFAESI Act or by the Chief Metropolitan Magistrate or the District Magistrate under Section 14 of the SARFAESI Act, the Court or the authority mentioned in Section 33 of the Maharashtra Rent Control Act cannot grant the injunction to prevent such action by the secured creditor or by the Chief Metropolitan Magistrate or the District Magistrate. Even otherwise, Section 33 of the Maharashtra Rent Control Act vests jurisdiction in the courts named therein to decide disputes between the landlord and the tenant and not disputes between the secured creditor and the tenant under landlord who is a borrower of the secured assets."

17. In the present case, the petitioner - bank specifically raised the objection that the application under Sections 18 and 21 of the Rent Act of 2001 has been filed by the respondent No. 1 claiming himself as tenant of the disputed premises on the basis of some forged receipts showing himself as tenant since 2009 and that the fraud was evident from the fact that the market price of the disputed premises is above Rs. 12 crores. The mirrors which are fixed in the disputed premises are bullet proof. There are two swimming pools constructed in the said house and the entire premises is constructed over 87,000 square feet area. In spite of the same, the initial rent of the said premises is stated to be only Rs. 800/- per month, which was increased to Rs. 1,000/- per month and that he used to only tie his cattle in the disputed premises. It is hard to believe that the rent of such a premises is only Rs. 1,000/- per month as on date or such a luxurious property was being used for cattles. Moreover, the respondent No. 1 did not raise any objection before the District Collector and nor the respondents - borrowers ever stated that the said premises had been rented out. There is no such mention of the said fact while mortgaging the property in question in favour of the petitioner - bank, which shows that the said receipts have been fabricated and the respondent No. 1 is a planted tenant. During the period while the matter was pending before the District Collector, the respondent Nos. 2 and 3 did not inform either to the petitioner - bank or the District Collector that any tenant was residing in the disputed premises and nor made any declaration to this effect while obtaining the loan. There is no registered written document of rent note with respect to the tenancy placed on record. Still, the Rent Tribunal has gone ahead and granted the status quo on an application filed by the alleged tenant seeking protection against dispossession in spite of the fact that there was no registered instrument placed on record except some rent receipts, which are challenged by the petitioner - bank as being fabricated. While coming down heavily on interim injunction granted in such circumstances, the Apex Court in Para 27 of the judgment in the case of Harshad Govardhan Sondagar (supra) observed :-

"27. We may now consider the contention of the Respondents that some of the Appellants have not produced any document to prove that they are bona fide lessees of the secured assets. We find that in the cases before us, the Appellants have relied on the written instruments or rent receipts issued by the landlord to the tenant. section 107 of the Transfer of Property Act provides that a lease of immoveable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument and all other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Hence, if any of the Appellants claim that they are entitled to possession of a secured asset for any term exceeding one year from the date of the lease made in his favour, he has to produce proof of execution of a registered instrument in his favour by the lessor. Where he does not produce proof of execution of a registered instrument in his favour and instead relies on an unregistered instrument or oral agreement accompanied by delivery of possession, the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, will have to come to the conclusion that he is not entitled to the possession of the secured asset for more than an year from the date of the instrument or from the date of delivery of possession in his favour by the landlord."

18. The Apex Court in the case of Authorized Officer, State Bank of Travancore & another v. K.C. Mathew (Civil Appeal No. 1281 of 2018) (arising out of SLP (C) No. 24610 of 2015) decided on 30.01.2018 as well showed its displeasure with respect to the interim injunction granted in favour of the borrower and against the secured creditor and set aside the impugned orders holding that the High Court was not justified in entertaining the writ petition against the notice under Section 13(2) of the Act and thereby quashing the proceedings initiated by the bank by holding in Para 16 of the judgment that :-

16. It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex-parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as expressed in Satyawati Tandon (supra), has also not been kept in mind before passing the impugned interim order:-

"46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation.

Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, Whirlpool Corpn. v. Registrar of Trade Marks and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order."

19. In the present case, there may not be an ex-parte order but no reasons for grant of stay has been mentioned. In fact, there was no reason for the respondent - tenant to invoke the provisions of Section 18 and 21 of the Rent Act of 2001 as no eviction petition had been filed against him under Section 9 of the Rent Act of 2001 and the possession was sought under the SARFAESI Act and therefore, in view of the amended provisions of sub-section (4-A) of the SARFAESI Act, ample opportunity and right is available to a tenant or lessee on being aggrieved with the order of dispossession to invoke the provisions provided under the SARFAESI Act and also to seek restoration of the possession of the secured assets to the borrower or such aggrieved person in accordance with Section 17, wherein for sub-section (3), the following sub-section was substituted in the Principal Act giving ample opportunity to a tenant/lessee :-

"(3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management or restoration of possession, of the secured assets to the borrower or other aggrieved person, it may, by order -

a. declare the recourse to any one or more measures referred to in sub-section (4) of section 13 taken by the secured creditor as invalid; and

b. restore the possession of secured assets or management of secured assets to the borrower or such other aggrieved person, who has made an application under sub-section (1), as the case may be; and

c. pass such other direction as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under sub-section (4) of section 13;"

20. Before incorporation of sub-section (4-A) and substitution of sub-section (3) in Section 17 of the SARFAESI Act as above, there was no remedy available to a tenant who was being dispossessed under the SARFAESI Act and hence, it was in those circumstances that the judgment in the case of Vishal N. Kalsaria (supra) was passed. The amended Act and incorporation of sub-section (4-A) in Section 17 of the SARFAESI Act as well as sub-section (3) of Section 17 of the SARFAESI Act sufficiently empowered the tenant to challenge the proceedings qua his dispossession as a lessee or a tenant, in case, action is being initiated against him for dispossession under the SARFAESI Act.

21. From the above discussion, it is evident that in view of the above amendment, an opportunity and right having been granted to such a tenant, his only option was to invoke the amended provisions of Section 17 of the SARFAESI Act and not the Rent Act of 2001 in the present set of circumstances.

22. Accordingly, the present writ petitions are allowed. The impugned Orders dated 04.09.2017 as well as 28.11.2017 are set aside and the application under Order 7, Rule 11 of C.P.C. stands allowed with liberty to the respondent No. 1, the alleged tenant, to avail the remedy available to him under the SARFAESI Act as observed above.