Smt. Vijayalakshmi - Petitioner @HASH The Authorised Officer, Kotak Authorised Bank Limited, Banashankari Third Stage, Bangalore and Others

A.S. Bopanna, J. - The petitioner is before this Court assailing the possession notice dated 26-12-2013 seeking that the first respondent-bank be directed not to disturb the physical possession and enjoyment of the petitioner over the petition schedule property.

The petitioner contends that she has taken the petition schedule property on lease from the 2nd respondent. In that regard, a lease agreement dated 9-11-2008 as at Annexure-A is referred to. The first respondent has initiated action under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (''SARFAESI Act'' tor short) against respondents 2 to 4 for recovery of the amount due to the first respondent-bank. In the said process, the first respondent-bank is also seeking to take physical possession of the petition schedule property. It is in that light, the petitioner is before this Court claiming that the possession of the petitioner as a lessee/tenant cannot be disturbed by the first respondent even though the recovery proceedings are initiated against her landlady viz., the 2nd respondent.

Learned Counsel for the respondent 1 would contend that the lease agreement dated 9-11-2008 is fabricated only for the purpose of the present case to delay the recovery proceedings against respondents 2 to 4. It is also her case that even if said document is kept in view, the period for which the lease has been granted has expired and therefore no right can be claimed by the petitioner.

Though such contention is put forth by the learned Counsel for the first respondent, validity or otherwise of the lease and as to whether the petitioner is still in possession of the said property, as also whether the lease is a valid one and whether it was created earlier to the mortgage or prior to Section 13(2) notice was issued or subsequent thereto are all issues which will have to be considered by the Competent Court when proceedings under Section 14 of the SARF AESI Act is initiated as held by the Hon''ble Supreme Court in the case of Harshad Govardhan Sondagar v. International Assets Reconstruction Company Limited and Others (2014) 6 SCC 1. If that be the position, even if the first respondent has obtained orders for possession against respondents 2 and 4 without making the petitioner as party to such proceedings, that order cannot be executed against the petitioner.

However, if the petitioner still continues to be in possession and the first respondent has not yet taken physical possession of the petition schedule premises and in that regard, if need for initiating proceedings under Section 14 of the SARF AESI Act arises, such liberty is reserved to the respondent 1 to initiate fresh proceedings under Section 14 of the SARFAESI Act by arraigning the petitioner herein as respondent to the said proceedings. In the said proceedings, the Competent Court/authority will take note of the claim as put forth and thereafter pass fresh orders in accordance with law.

Petition is accordingly disposed of.