OM PRAKASH SHUKLA Vs. STATE BANK OF BIKANER AND JAIPUR HAVING ITS REGISTERED AND PRINCIPAL OFFICE AT TILAK MARG C SCHEME JAIPUR

JUDGEMENT

(1.) IN the instant petition, the petitioner who happens to be an Advocate by profession, has challenged the action of the respondent No. 1 Bank in issuing the public notice dated 25.11.2010, inviting tenders for the sale of the property being the House No. 1555, Choura Rasta, Chokdi Modi Khana, Jaipur, to be held on 28.11.11 under the provisions contained in the securitisation and Reconstruction of Financial Assets and Enforcement of Security INterest Act, 2002(hereinafter referred to as the said Act)and the Security INterest (Enforcement) Rules, 2002 (hereinafter referred to as 'the said Rules').

(2.) IT has been alleged in the petition that the petitioner was occupying part of the said premises as tenant since last many years, however, the officers of the respondent Bank had put lock on the said premises and now have invited tenders for the sale of said property through public auction. The petitioner has prayed for the following reliefs in the petition:-

(3.) ON the other hand, the learned counsel Ms. Anita Agrawal for the respondent No.1 Bank, has vehemently submitted that the petition contains highly disputed questions of facts in as much as there was no document produced by the petitioner to show that he was the tenant of the respondent No.3 borrower in the disputed premises, when the respondent no.3 had created the mortgage in favour of the respondent Bank in the year 1996. According to her, the respondent bank had already taken over the possession of the disputed premises after taking measures under Section 13(4) of the said Act and that if the petitioner was aggrieved by the said measures taken by the bank in respect of the said mortgaged premises, the petitioner could have filed appeal in view of Section 17 of the said Act. Thus, according to Ms. Agrawal, there being an alternative, efficacious remedy available to the petitioner, the petitioner was not entitled to any relief in the petition, invoking extra ordinary jurisdiction of this court. Pressing into service, provisions contained in Section 35 of the Said Act, Ms. Agrawal submitted that the provisions of the said Act had an over-riding effect over the other law for the time being in force and that the validity of the said Act having also been upheld by the Apex Court, the petitioner could not challenge the action of the respondent taken under the said Act. She also submitted that the bank had already taken over the possession of the disputed premises, as admitted by the petitioner himself in the petition and had sought restoration of possession, however the Court had passed the ex-parte interim order on 11.2.2011 to the effect that the petitioner shall not be dispossessed from the rented premises. According to her when the petitioner was already dispossessed as per his own averments in the petition, such an order not to dispossess the petitioner from the rented premises had no meaning.